To Bork or not to Bork

Democrats give notice that ideology will play a role when the Senate considers Bush's judicial nominees.

Topics:

To Bork or not to Bork

Everyone knew that when the Democrats took over the Senate, the road for President Bush’s judicial appointments became much rougher. But to make sure that message was clear to the administration — and perhaps to create some political cover for when the time comes to oppose would-be judges — Democrats decided to publicly explore the reasons why judicial nominees should be grilled about their political leanings.

In a hearing Tuesday, it was the job of Sen. Charles Schumer, D-N.Y., a member of the Senate Judiciary Committee, to run the proceedings with the high-minded title “Should Ideology Matter? Judicial Nominations 2001.” Schumer had already given a preview of his own answer to the question in an Op-Ed piece in Tuesday’s New York Times, in which he wrote, “Pretending that ideology doesn’t matter — or, even worse, doesn’t exist — is exactly the opposite of what the Senate should do.”

He reiterated that point during the hearing, saying that ignoring ideology has led to more “gotcha politics” in the confirmation process, with senators and interest groups digging for dirt in nominees’ writings, financial records and personal lives to camouflage differences over issues like abortion and gun control. He argued that such practices increase public cynicism about the nomination process. “Let’s make our confirmation process more honest, more clear and hopefully more legitimate in the eye of the American people,” he said.

But Republicans at the hearing made it known that they believed fairness was the last thing Schumer and other Democrats were looking for in the confirmation process, and that Democrats were instead laying the groundwork for a full-bodied “Borking” of Bush’s nominees.

When Schumer said “ideology,” Republicans heard “litmus test,” and Sen. Mitch McConnell, R-Ky., helpfully offered what he feared were some of the liberal tenets that nominees would have to accept in order to win confirmation. In McConnell’s view, Bush nominees would have to support “partial-birth abortion,” “judicial activism” and “racial preferences.” Nominees would also be required, he said, to promise to “restrict First Amendment rights of political speech and association” — code for supporting campaign reform limits.



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:

  • Michael McConnell, a legal scholar who has advocated greater government support of religious institutions and publicly funded school vouchers, and who has voiced support for the Boy Scouts of America’s ban on gays.

  • Jeffrey Sutton, another school voucher fan, who is a member of the conservative Federalist Society, and who donated $1,000 to Bush’s presidential campaign in 1999.

  • 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.

  • Alicia Montgomery is an associate editor in Salon's Washington bureau.

    More Related Stories

    Featured Slide Shows

    • Share on Twitter
    • Share on Facebook
    • 1 of 11
    • Close
    • Fullscreen
    • Thumbnails

      Ten spectacular graphic novels from 2014

      Beautiful Darkness by Fabien Vehlmann & Kerascoët
      Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

      Ten spectacular graphic novels from 2014

      Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
      Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

      Ten spectacular graphic novels from 2014

      Here by Richard McGuire
      A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

      Ten spectacular graphic novels from 2014

      Kill My Mother by Jules Feiffer
      The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

      Ten spectacular graphic novels from 2014

      The Motherless Oven by Rob Davis
      This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

      Ten spectacular graphic novels from 2014

      NOBROW 9: It's Oh So Quiet
      For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

      Ten spectacular graphic novels from 2014

      Over Easy by Mimi Pond
      When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

      Ten spectacular graphic novels from 2014

      The Shadow Hero by Gene Luen Yang and Sonny Liew
      You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

      Ten spectacular graphic novels from 2014

      Shoplifter by Michael Cho
      Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

      Ten spectacular graphic novels from 2014

      Through the Woods by Emily Carroll
      This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

    • Recent Slide Shows

    Comments

    0 Comments

    Comment Preview

    Your name will appear as username ( settings | log out )

    You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>