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.