Strengthening Constitutional Self-Government

No Left Turns

Sen. Schumer and the judicial nominating process

Not surprisingly, Sen. Charles Schumer isn’t happy with Justices Roberts and Alito, whose version of judicial incrementalism isn’t to his liking. Here’s his conclusion, which of course shows that his view of the Court is altogether ideological:

How do we apply the lessons we learned from Roberts and Alito to the next nominee, especially if – God forbid – there is another vacancy under this President?

We now have the most conservative Supreme Court in memory. And, as everyone knows, the Justices who are – actuarially speaking – most likely to step down next are the liberal ones.

The Court is, interestingly, at odds with the country. As the Court grows more conservative, the rest of the nation is in the midst of a pendulum swing in the progressive direction.

Unless we are vigilant in our efforts to moderate the Court, that institution will stand in the way of a much-needed and long-overdue swing back to moderation.


So, based on my experiences of the last two years and my reading of the last term’s cases, let me share with you how I intend to apply the lessons learned:


[F]or the rest of this President’s term and if there is another Republican elected with the same selection criteria let me say this:

We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito.

Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.

They must prove by actions—not words—that they are in the mainstream, rather than the Senate proving that they are not.

And Sen. Schumer gets to decide what defines the mainstream, I guess.

Discussions - 9 Comments

If I understand the senator correctly, he is exhorting his colleagues NOT to do their job? This is a fine excuse for not holding a hearing for the next nominee to the S Ct: namely, for fear that Democrats would be unable to explain to the American people why they are unwilling to consent to a nominee who they cannot demonstrate would perform poorly if appointed to the high court. Spare me the outrage about presidential nominees supposedly out of the mainstream.

The Democrats are confident. They could earn themselves a filibuster proof Senate in '08.

This is what you get when you have a Bush who weirdly, inordinately values "new tone." Which he never established by the way, never came close to establishing.

Many of us saw all of this coming.

S.'s complaints are, of course, evidence that the Court has become too much a partisan football. But that's largely the Court's fault. S does, in fact, have a right to his opinion, and even the right as a Senator to have his const. opinion guide his use of the const. means at his disposal. Lurking behind all this, as usual, is ROE, and the irony that legislators should be opposed to Court decisions that return decision-making to them. It would be great if some Republicanscould actually "out" the real cause of S's anger, but the Rs have always chosen to obfuscate the real const. controversy here. So I'm not particularly against an honest and partisan confirmation process at this point as an educational device. I hope S. goes to town, puts his money where his mouth is, etc., etc., the next time a confirmation hearing rolls around. It may, of course, be a long time before a Republican president appoints another justice, just as it may be very soon.

Given Schumer's determination to stop the Senate from doing its constitutional job of voting on judicial nominees, shouldn't President Bush revive the process of recess appointing Supreme Court Justices? About a dozen Justices were so appointed and all but one ultimately confirmed. President Eisenhower recess appointed 3 Justices, CJ Warren, Brennan, and Potter Stewart. There are good nonpolitical reasons to make sure the Court bench is full, among other things the fact that each Justice is also on the Circuits.
Some may object that Bush recess appointees will never get confirmed. But this whole issue of Senate judicial confirmation can be brought to the voters in a dramatic way if Bush is compelled to go that route, and I have little doubt that most Americans expect the Senate to do its job as well as preferring the kind of Justices Bush has generally appointed. In the end this should help Republicans win back the Senate, perhaps keep the White House, and thus ensure confirmations for recess appointees. If the Senate remains in the hands of the Dems, conservatives will be no worse off than we are now, given the Schumer doctrine.

dennis is correct, sir.

Dennis wrote: "... and I have little doubt that [a] most Americans expect the Senate to do its job as well as [b] preferring the kind of Justices Bush has generally appointed. In the end this should [c] help Republicans win back the Senate, perhaps keep the White House, and thus ensure confirmations for recess appointees."

I wonder about [a]. It's a function of how much the average American knows about the judicial appointment obstructions, and how much they care. The press will minimize the first part of that. I'm not sure Americans have put two and two together regarding judicial appointments and the daily running of their own lives.

I agree in general with [b], except I think there's some flexibility in how Americans define what's acceptable. And it doesn't take much movement left to alter the decisions made from the bench. So a cloaked nominee, ostensibly moderate but with a liberal leaning on a few key elements of the law could easily be approved of by the American public.

I disagree with [c]. The Republicans won't take back the two chambers simply by running candidates with an R after their name. They need to run compelling candidates. Who might those be? I see a pretty stark field.

Don, certainly Republicans cannot win back Congress merely by promoting their (R). My point, however, is that the recess appointment strategy I proposed is precisely intended to force a heck of a fight between the parties, to bring the issue of judicial supremacy to the forefront. Make Schumer et al. DEFEND their refusal to confirm good Justices and their determination to remake our political order, i.e. destroy the Declarational principles of constitutional self-government. Republicans don't really like to debate these questions either, so you have to COMPEL them to support good Justices like Alito and Roberts and promise to confirm such nominees. I say that recess appointments are a dramatic way of forcing both parties to debate the role of the judiciary, and THAT fight -- and not merely being a Republican -- is what can win over the voters and restore conservative control of the Senate.

I don't share dennis's optimism about the restoration outcome of the fight he's talking about. But it would still be good for our souls and at least somewhat beneficial to our side.

Well, Peter, I don't know how powerful such a campaign debate/issue would turn out to be in swinging voters, and maybe should be more "nuanced." I do believe, though, that the vision of Schumer et al. for the judiciary is a vision of America which is anti-family, anti-faith, anti-democracy, pro-bureaucracy, pro- foreign law trumping the US Constitution, pro-big government, et al. That vision comes to sight with an incisive debate about the nomination process. What kind of Justices do you really want, should be the kickoff question.
IF our Presidential and Senate candidates articulated this point clearly, do you doubt that many Americans, Democrats as well as Republicans, would strongly reject that vision?
Certainly to win the whole election requires that conservative candidates intelligently address other issues of more immediate concern, esp. Iraq and the struggle against terrorism. I don't mean the judiciary alone is the winner. I do mean that it's one of the best issues on which to divide the electorate by bringing their attention to the unAmerican vision that grounds the Democratic Party's understanding of the judiciary.

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