The
New York Times
June 26, 2001
Judging by Ideology
US Senator Charles E. Schumer
Today, for the first time in more than a decade, the Senate will
begin a much needed examination of the judicial selection process.
The courts subcommittee of the Senate Judiciary Committee will examine
whether ideology should play a role in the selection and confirmation
of judges.
For one reason or another, examining the ideologies of judicial
nominees has become something of a Senate taboo. In part out of
a fear of being labeled partisan, senators have driven legitimate
consideration and discussion of ideology underground. The not-so-dirty
little secret of the Senate is that we do consider ideology, but
privately. Unfortunately, the taboo has led senators who oppose
a nominee for ideological reasons to justify their opposition by
finding nonideological factors, like small financial improprieties
from long ago. This "gotcha" politics has warped the confirmation
process and harmed the Senate's reputation.
Shunning explicit ideological considerations has not always been
the Senate's practice. From the beginning of our republic, the president's
judicial nominees have been rejected based on their political ideologies,
sometimes even for their views on a single political issue. In 1795,
George Washington's nomination of John Rutledge to be chief justice
was scuttled because Rutledge had criticized the Jay Treaty. In
1845, President Polk's nomination of George Woodward was defeated
because of his positions on immigration.
During our nation's first century, the Senate rejected one out
of every four Supreme Court nominees. But since Judge Robert Bork's
nomination was defeated in 1987 largely because of his positions
on abortion, civil rights and civil liberties, ideology has played
more of a behind-the-scenes role in nomination hearings. It would
be best for the Senate, the president's nominees and the country
if we return to a more open and rational debate about ideology when
we consider nominees.
How important should ideology be in the confirmation decision?
The answer can vary depending on three factors: the extent to which
the president himself makes his initial selections on the basis
of a particular ideology, the composition of the courts at the time
of nomination and the political climate of the day.
During the presidency of Dwight D. Eisenhower, political ideology
played a lesser role in the confirmation hearings. Eisenhower had
been elected by overwhelming majorities in both 1952 and 1956, while
the Senate was closely divided and four out of every five federal
judges were Democrats.
Moreover, Eisenhower sought candidates with, as he put it, "solid
common sense," eschewing candidates with "extreme legal
or philosophical views." And he asked the American Bar Association
for its evaluation of potential nominees. Thus, in a time when the
courts were dominated by Democrats, a split Senate had little reason
to oppose the nonideological nominees of an overwhelmingly popular
Republican president.
Today the situation is much different. On the campaign trail, President
Bush said the justices he most admired were Antonin Scalia and Clarence
Thomas, the court's most conservative members. And the balance of
the courts, especially the Supreme Court, leans decidedly to the
right. The Supreme Court's recent 5-4 decisions that constrain Congressional
power are probably the best evidence that the court is dominated
by conservatives.
No one needs to be reminded that the president was elected by the
narrowest of margins, while the Senate is closely split. In such
a time, the president and the Senate must collaborate in judicial
appointments, and certainly, Senate opposition to judicial nominees
outside the mainstream is justified. Tilting the court further to
the right would push our court sharply away from the core values
held by most of our country's citizens.
If the president uses ideology in deciding whom to nominate to
the bench, the Senate, as part of its responsibility to advise and
consent, should do the same in deciding whom to confirm. Pretending
that ideology doesn't matter -- or, even worse, doesn't exist --
is exactly the opposite of what the Senate should do.
|