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from efforts to justify the rejection of Republican judicial nominees
on ideological grounds, New York Democrat Charles Schumer, chairman
of the Senate Judiciary Committee's subcommittee on the courts,
plans a new hearing to explore other possible strategies for defeating
President Bush's choices for the federal bench.
Next Tuesday, Schumer will hold a hearing entitled "The Role of
Real-World Experience in Judicial Selection," in which some Democrats
will argue that Republican nominees — some of them academics,
practicing lawyers, and lower-court judges — should be rejected
on the grounds that they have insufficient "real world" political
experience. In choosing the topic, Schumer was apparently influenced
by a recent New York Times article in which reporter Linda
Greenhouse deplored the absence of former high-ranking elected and
appointed officials on the Supreme Court (Democrats have asked Republicans
to read the piece as preparation for the hearing).
"From its earliest days, the court included members of Congress,
cabinet officers and others drawn from the front ranks of public
life," Greenhouse wrote. "For example, the early Warren Court included
three former senators, two former attorneys general and Earl Warren
himself, three-time governor of California and the Republicans'
vice presidential nominee in 1948." (Warren and his fellow justices,
Greenhouse wrote admiringly, "regarded the court as a canvas on
which to paint on a grand scale.") Now, Greenhouse reported, the
court is made up of lawyers who, with the exception of former Arizona
state legislator Sandra Day O'Connor, have not held elective office.
While Greenhouse praised the present justices' legal expertise,
she also worried that they lack "a framework for seeing the world
in all its gritty reality from inside the marble cocoon." For example,
according to Greenhouse, real-world experience might have helped
the justices understand the value of conferring temporary immunity
on President Bill Clinton as he faced the Paula Jones lawsuit —
something they unanimously declined to do. "It is hard to imagine…that
justices with substantial political experience would blithely assume
that defending against the Paula Corbin Jones sexual harassment
suit would not be a burden for Bill Clinton," Greenhouse wrote.
"The justices' confidence that the case could be easily managed
by a sitting president now seems cavalier, even ludicrous."
Schumer's decision to base a congressional hearing on Greenhouse's
argument has struck some Republicans as "kind of off-the wall,"
in the words of one senior GOP aide. But it appears to represent
an attempt to broaden the grounds on which Democrats can vote against
Bush judicial nominations.
At a hearing last month, Schumer called witnesses who argued that
well-qualified Republican nominees should be defeated because they
threaten to tilt the nation's courts dangerously to the right. While
that argument was attractive to many Senate liberals, it left others
unconvinced. The new rationale — lack of "real-world experience"
— might appeal to less ideological, more pragmatic Democrats.
"The first hearing [on ideology] came across as so partisan that
they're now backing up a little bit and trying to give some cover
to more moderate Democrats [to vote against Bush nominees]," says
the GOP aide.
At the hearing, Schumer will rely on two liberal academics, one
from Harvard and one from the University of Massachusetts, to explain
the value of real-world experience in judicial performance. Republicans
have not yet decided who they will call as witnesses.
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