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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 strategies for defeating President
Bush's choices for the federal bench.
Schumer will hold a session next Tuesday titled, "The Senate's Role
in the Nomination and Confirmation Process: Whose Burden?" The title
refers to the question of who bears the burden of proof in a judicial
confirmation: Do senators have to come up with a compelling reason
to reject a nominee, or do nominees have to come up with a compelling
reason to convince senators they should be confirmed?
Although general practice has favored the former, Democrats, facing
a slew of nominations from the Bush White House, are now building
a case for the latter. They say nominees, to prove they are worthy
of confirmation, should be required to answer questions about issues
and cases on which they might be called to rule once they reach
the bench — something that prospective judges have been traditionally
reluctant to do.
The implications are potentially devastating for Bush nominees.
In hearings last month, Schumer stressed the idea that qualified
candidates might be rejected on ideological grounds — that
is, if they expressed opinions Democrats consider "out of the mainstream."
Now, Schumer is proposing that nominees who decline to express
opinions on controversial subjects like abortion and racial preferences
might also be rejected.
"The first hearing said that if your answers show you're not PC
enough, we [Democrats] can vote against you," says one Republican
staffer. "Now, this hearing is saying it's the nominee's burden
to answer all the questions, which puts conservative nominees in
a catch-22. If you answer the questions honestly, they'll vote you
down. If you don't answer the questions, they'll vote you down."
The intellectual foundation of the new approach was unveiled at
last month's ideology hearing in written testimony from Harvard
law professor Laurence Tribe, who is virtually writing the blueprint
for Democrats' approach to confirmation hearings. "To say that the
burden is on those who hold the power of advice and consent to show
that there is something disqualifying about the nominee, that there
is a smoking gun in the record or a wildly intemperate publication
in the bibliography or some other fatal flaw that can justify a
rallying cry of opposition, is to guarantee that the President will
have the Court of his dreams without the Senate playing any meaningful
role whatsoever," Tribe wrote. "Therefore, if the Senate's role
is to be what the Framers contemplated, what history confirms, and
what a sound appreciation for the realities of American politics
demands, the burden must instead be on the nominee and, indeed,
on the President. That burden must be to persuade each Senator…that
the nominee's experience, writings, speeches, decisions, and actions
affirmatively demonstrate not only the exceptional intellect and
wisdom and integrity that greatness as a judge demands but also
the understanding of and commitment to those constitutional rights
and values and ideals that the Senator regards as important for
the republic to uphold." Tribe concluded: "On this standard, stealth
nominees should have a particularly hard time winning confirmation."
At the ideology hearing, Schumer announced he will hold "at least
three" more hearings on the issue of judicial confirmation. A Schumer
spokesman did not return calls for comment.
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