Schumer wins bat­tle to keep fo­cus on ide­ol­ogy

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DINAN

He may have lost the bat­tle over Judge Neil Gor­such, but Se­nate Mi­nor­ity Leader Charles E. Schumer ap­pears to have won a big­ger fight: mak­ing ide­ol­ogy the fo­cus of Supreme Court nom­i­na­tions.

The New Yorker was the driv­ing force be­hind Democrats’ fil­i­buster Thurs­day of Judge Gor­such and the chief rea­son why Repub­li­cans trig­gered the “nu­clear option,” per­ma­nently de­fang­ing the fil­i­buster as a weapon to block Supreme Court nom­i­nees.

It was the lat­est in a nearly 20-year cru­sade for Mr. Schumer to tilt the fed­eral courts to the left, say­ing the bat­tle for the ju­di­ciary is in­her­ently about po­lit­i­cal val­ues and if one party is win­ning, then the other is los­ing.

In this case, that meant Judge Gor­such was a loss for the left. “His record shows, far from be­ing the kind of main­stream can­di­date for the Supreme Court that could earn 60 votes, he may very well turn out to be one of the most con­ser­va­tive

jus­tices on the bench,” Mr. Schumer said on the Se­nate floor.

Jim Man­ley, a long­time se­nior Se­nate aide who worked for Sens. Ed­ward M. Kennedy and Harry Reid, said the trend was al­ready to­ward ide­ol­ogy even with­out Mr. Schumer, but the fights over Judge Mer­rick Gar­land last year and now over Judge Gor­such con­firm that ide­ol­ogy is front and cen­ter.

“It’s the tri­umph of ide­ol­ogy over the now quaint idea that a pres­i­dent de­serves def­er­ence,” he said. “This is fol­low­ing the arc of the Se­nate and the po­lit­i­cal process as a whole, where norms and cus­toms are be­ing bro­ken left and right.”

Hans von Spakovsky, a se­nior le­gal fel­low at The Her­itage Foun­da­tion, said Repub­li­cans have no choice but to fol­low suit. If the po­si­tions had been re­versed, he said, he had no doubt that Democrats would have trig­gered the nu­clear option.

In that re­spect, Mr. Schumer will have re­ceived the an­swer he wanted in 2001 when he be­gan his cru­sade to make ide­ol­ogy an ex­plicit part of the con­fir­ma­tion process.

As a first-term sen­a­tor serv­ing as chair­man of his first sub­com­mit­tee, a panel over­see­ing the fed­eral courts, Mr. Schumer called a hear­ing to pro­mote ide­ol­ogy in ju­di­cial selection.

“For one rea­son or an­other, ex­am­in­ing the ide­olo­gies of ju­di­cial nom­i­nees has be­come some­thing of a Se­nate taboo,” Mr. Schumer said in a New York Times op-ed the morn­ing of the hear­ing. “The not-so-dirty lit­tle se­cret of the Se­nate is that we do con­sider ide­ol­ogy, but pri­vately.”

He said the more a pres­i­dent re­lied on ide­ol­ogy to nom­i­nate a judge, the more the Se­nate should look at ide­ol­ogy in its con­fir­ma­tion process.

He would later lament that Democrats didn’t do more to fo­cus on the ide­ol­ogy of John G. Roberts Jr. and Sa­muel A. Al­ito Jr. dur­ing the Ge­orge W. Bush ad­min­is­tra­tion. He said his party missed a chance to swing the court to­ward the left.

It wasn’t for lack of try­ing, though. Mr. Schumer joined fel­low Democrats in at­tempt­ing to fil­i­buster Jus­tice Al­ito but fell short be­cause not enough Democrats de­cided it was ap­pro­pri­ate to block a high court nom­i­nee through a fil­i­buster.

Supreme Court picks used to be much less con­tentious.

Jus­tice By­ron White’s con­fir­ma­tion hear­ing lasted just 90 min­utes in 1962 and was con­firmed on a voice vote. In­deed, voice votes were com­mon through most of the 20th cen­tury.

That be­gan to change in the 1960s and hit bot­tom in 1987, when Pres­i­dent Rea­gan picked Judge Robert Bork to fill a va­cant seat on the Supreme Court.

Within hours of the an­nounce­ment, Sen. Ed­ward M. Kennedy had de­liv­ered his “Robert Bork’s Amer­ica” speech, ac­cus­ing the con­ser­va­tive ju­rist of be­ing an “ex­trem­ist” ide­o­logue who would reim­pose seg­re­ga­tion and ban the teach­ing of evo­lu­tion. Judge Bork later faced nearly 30 hours of ques­tions, nearly all of it fo­cus­ing on his ide­ol­ogy.

In the end Mr. Kennedy led the Se­nate in re­ject­ing the nom­i­na­tion on a 58-42 vote. Judge Bork be­came the only nom­i­nee in 45 years to be de­feated on a floor vote.

A few years later came the con­tentious hear­ings for Jus­tice Clarence Thomas, then a brief respite as Repub­li­cans put up lit­tle re­sis­tance to Pres­i­dent Clin­ton’s two high court nom­i­nees.

By the time Pres­i­dent Ge­orge W. Bush took office in 2001, though, the process had de­te­ri­o­rated and Democrats — pushed by Mr. Schumer and Mr. Kennedy — were seek­ing ma­jor changes in the fed­eral courts.

Some an­a­lysts credit Mr. Schumer with be­ing the driv­ing force be­hind Democrats’ un­prece­dented fil­i­busters of Mr. Bush’s ap­peals court picks, with 10 nom­i­nees blocked from 2003 to 2005.

Repub­li­cans were so fed up that they in­vented the nu­clear option as a way to over­come the fil­i­buster — but didn’t pull the trig­ger, af­ter a bi­par­ti­san group of sen­a­tors struck a side deal to ap­prove most of the nom­i­nees while avoid­ing a rules change.

Eight years later, af­ter Repub­li­cans adopted Democrats’ fil­i­buster tac­tics against Pres­i­dent Obama’s ap­peals court nom­i­nees, Mr. Schumer and fel­low Demo­cratic lead­ers trig­gered the nu­clear option, chang­ing the rules for all ex­ec­u­tive branch picks and ju­di­cial nom­i­na­tions save for the high court.

Mr. Schumer said Thurs­day that both sides share blame but Repub­li­cans should shoul­der more of it be­cause the party’s pres­i­dents choose worse judges.

“We be­lieve the Repub­li­can Party has been far more ag­gres­sive in the es­ca­la­tion of tac­tics and in the selection of ex­treme ju­di­cial can­di­dates, while Democrats have tended to se­lect judges closer to the mid­dle,” he said.

Repub­li­cans laughed at that as­ser­tion.

“I would say to my friend from New York, few out­side of Man­hat­tan or San Fran­cisco be­lieve that Ruth Bader Gins­burg is in the main­stream but Neil Gor­such is not,” said Ma­jor­ity Leader Mitch McCon­nell, Ken­tucky Repub­li­can.

Mr. Schumer now says he regrets help­ing trig­ger the nu­clear option in 2013. He in­sisted that he didn’t want the changes to ap­ply to Cab­i­net nom­i­nees and fought to en­sure that they didn’t ap­ply to the Supreme Court.

Mr. von Spakovsky, the Her­itage Foun­da­tion scholar, said this year’s Supreme Court fight merely con­firms that the Se­nate had long ago passed the tip­ping point. He blamed Democrats, who he said are in­tent on ad­vanc­ing their ide­ol­ogy through the courts at any cost.

“They don’t care about what’s the cor­rect le­gal prin­ci­ple, what’s the cor­rect con­sti­tu­tional prin­ci­ple in each of these cases. All they care about is that the law and the court prece­dent be such as to achieve the ide­o­log­i­cal and so­cial goals that they have,” Mr. von Spakovsky said.

Mr. Man­ley, though, said it’s the Repub­li­can base that has driven the fight as the Supreme Court be­comes more im­por­tant in Amer­i­can gov­ern­ment.

“It con­tin­ues to be the end-all and the be-all for Repub­li­cans, not only on the Hill but for out­side groups as well, who view it as a cru­cial part of their ef­fort to re­make Amer­ica the way they want it, as it be­comes a much more di­verse place,” he said.

“For what­ever rea­son, con­ser­va­tives have taken the Supreme Court much more se­ri­ously than Democrats ever did,” he said.

AS­SO­CI­ATED PRESS

Se­nate Mi­nor­ity Leader Charles E. Schumer be­gan his cru­sade in 2001 to make ide­ol­ogy an ex­plicit part of the Supreme Court con­fir­ma­tion process.

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