With 107 judgeships needing to be filled by the Bush administration, Republicans are warily watching the Democrats’ positioning. A GOP source close to the Judiciary Committee said that three of the president’s first batch of nominees are likely to be targeted by Democrats: Deborah Cook, an Ohio state Supreme Court justice who opposed a lawsuit against gun makers and supported limits on jury damage awards, and who — with her husband — has donated over $13,000 to the Republican Party and GOP candidates in the past four years.
A Democratic source close to the Judiciary Committee said that the party was reserving judgment on all of the Bush nominees, but agreed that McConnell could be in danger.
Republicans are indignant at the prospect that Bush’s nominees could be subjected to an ideological third degree. They claim that former President Clinton’s judicial nominees were never subjected to the Republican equivalent of such testing. And they say that Schumer was trying to change the ground rules of confirmation at Tuesday’s hearing. “What’s being suggested here is a significant departure from the way that nominees have traditionally been treated,” said Sen. Jon Kyl, R-Ariz. “Have there been exceptions? Quite. But they prove the rule because they are exceptions to the general deference that’s always been given to the president’s nominees.”
Schumer, of course, disputed this, saying that Republicans’ method of avoiding appearances of partisanship against Clinton nominees was to put the former president on notice that all judicial liberals would be dead on arrival.
The witnesses at the hearing tilted slightly against Schumer’s argument. While the second panel, made up of law professors and activists, split evenly on whether explicit questions of ideology are proper in the nomination process, the first panel was a wash for Schumer. C. Boyden Gray, White House counsel in the first Bush administration, got to the point early in his statement. “If the goal of today’s hearing is to answer the question, ‘Should ideology matter?’ I can answer in one word: No,” Gray declared. Carter administration counselor Lloyd Cutler echoed Gray’s sentiments. “To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one,” Cutler offered. “That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts.”
Schumer finally found a like-minded partisan with Laurence Tribe, a Harvard law professor and one of former Vice President Gore’s attorneys in the Florida recount battle. Tribe prompted frequent smiles and affirming nods from Schumer throughout his testimony, which found him frequently leaving aside his prepared remarks and speaking off the cuff. He said that the current fashion of staying away from ideological questions in the confirmation process forced senators to forgo tough questions, and instead substitute “ludicrous platitudes” and legal softballs at nominees.
Tribe gave his impression of a typical exchange. “‘Would you follow the law?’” he asked, before answering himself: “Duh.”
But Tribe wandered dangerously far into partisan minefields. He accused Republicans of “revising history” on the 1987 defeat of Supreme Court nominee Robert Bork, claiming that the Senate’s rejection was based on legitimate concerns about his narrow vision of rights implied by the Constitution, not on Democratic scapegoating.
In another example, Tribe reserved his most heated words for the current Supreme Court. Tribe described it as “utterly contemptuous” of Congress, mentioned its verdict in Bush vs. Gore as an example of its “disdain for democracy” and worried aloud that Bush’s stated preferences for more justices like Antonin Scalia and Clarence Thomas would pull the court hopelessly out of step with the American mainstream.
These remarks went largely unchallenged during the hearing itself, mostly because there weren’t many Republicans around to say anything. Only Alabama’s Sen. Jeff Sessions, the committee’s ranking minority member, stuck around for the second panel, and he spent as much effort tangling with Marcia Greenberger, co-president of the National Women’s Law Center. She criticized Sessions’ concern about ideology, saying he had quizzed liberal judicial nominees on everything from welfare issues to civil rights law. He suggested that Greenberger’s criticism of the Supreme Court was an overreaction to valid decisions that her group merely disagreed with.
Greenberger claimed that the opinions authored by Reagan and Bush Supreme Court appointees — with the exception of David Souter — should upset “anyone who is concerned with civil rights.” She cited the court’s reversals in the past several years of provisions in acts like the Violence Against Women Act and the Americans With Disabilities Act as proof the Republican justices are bent on narrowing ordinary citizens’ means to fight discrimination.
But a Republican Senate staffer who witnessed the hearing said that the Democrats seemed more interested in getting fodder for the next election season than in protecting citizens from a renegade Supreme Court. He singled out Greenberger as playing “Chicken Little of the hard left” in a Democratic drive to capitalize on unfounded fears about Bush’s judicial nominees. “They’ll keep saying, ‘The sky is falling, the sky is falling,’ and that will help them raise some more money.”
And there’s more to come. Schumer promised at least three more panels discussing how the Senate should handle touchy questions about judicial nominees. But as the senator reminded Sessions during the hearing, there isn’t much else to do until the parties hammer out rules for the new Senate. Confirmation hearings to fill the empty slots in the federal judiciary can’t begin until Senate Republicans and Democrats agree about whether senators will be able to put anonymous holds or “blue slips” on nominees they don’t like, and whether the president’s Supreme Court picks will be guaranteed a Senate floor vote, regardless of the Judiciary Committee’s disposition.