Schumer’s Next Show
Democrats play catch-22.

July 19, 2001 8:30 a.m.

resh 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.