The upcoming battle over who will replace Sandra Day O’Connor is the moment New York Senator Chuck Schumer has been waiting for, according to the Hill’s Byron York:
“In June 2001, just weeks after the defection of Sen. James Jeffords (I-Vt.) gave Democrats control of the Senate, Schumer convened a hearing titled ’Judicial Nominations 2001: Should Ideology Matter?’
“The idea behind the hearings was this: Many senators believe that, in an ideal world, a confirmation hearing should examine a judicial nominee’s fitness and qualifications for the bench. If the nominee is fit and qualified, then he or she should be confirmed. But in the real world, senators often oppose nominees for reasons that have nothing to do with fitness or qualifications and everything to do with ideology. Feeling constrained from openly voicing their ideological objections, the senators look for some small blemish in the nominee’s record that can then be exaggerated into a reason for voting against the candidate….
According to York, Schumer demand to invoke ideology will be useful if he and his allies must “kill [the nomination of] a candidate who is obviously qualified, who doesn’t have a nanny problem or any other personal peccadillo, and who cannot be reasonably portrayed as a right-wing nut.'”
To find a way to fight qualified candidates who disagree with him, Schumer enlisted the support of three legal scholars–Laurence Tribe, Cass Sunstein and Marcia Greenberger. In the past, nominees have refused to answer certain questions because they might have a direct bearing on something that could come before the Court. York quotes Tribe on what to do if a nominee does this:
“When a nominee says, ’Oops, I can’t talk about that because that might have something to do with what I will do as a judge,’” Tribe told Schumer, “it seems to me at that point you ought to really scratch your head and say, ’Of course it would have something to do with what you would do as a judge; I wouldn’t be asking you otherwise.’”
But the Schumerites are up against a tough customer: George W. Bush. “There is no indication that George W. Bush intends to nominate someone who appeared on a recent list of nominees acceptable to Senate Democrats. This would be to cede the appointing power from the president and the Senate majority to a minority in the Senate,” writes Michael Barone in another good piece this morning on the Supreme Court.