Should Ideology Matter?: Judicial Nominations 2001

Statement of Senator Schumer

Today, for the first time in over a decade and for the first time during the Bush presidency, we are formally examining the judicial nominations process.

This hearing is specifically focussed on the vital question of what role ideology should play in the selection and confirmation of judges. Let me start by saying that it is my intention to hold a series of further hearings that will examine in detail several other important issues related to the judicial nominating process.

At this point, we plan to hold at least three more hearings on the following issues:

(1) The proper role of the Senate in the judicial confirmation process. What does the Constitution mean by "advise and consent" and historically how assertive has the Senate's role been ?

(2) What affirmative burdens should nominees bear in the confirmation process to qualify themselves for life-time judicial appointments? The Senate process can be criticized for being a search for disqualifications. We will examine whether the burden should be shifted to the nominees to explain their qualifications and views to justify why they would be valuable additions to the bench.

(3) The significance of the Supreme Court's recent federalism decisions for the judicial selection process. Most Americans probably do not realize what these cases curtailing the powers of Congress mean for their everyday lives and futures. We will try to make these somewhat esoteric and often abstract decisions more real and relevant for ordinary citizens.

Today's hearing on ideology is a good place to start because it will touch upon all of these issues and serve as the beginning of the important dialogue that we in the Senate should be having before we proceed much further with nominations hearings and certainly before we embark on the consideration of Supreme Court nominees.

I have read all of the testimony submitted by the witness and I have to say all of it is terrific. Both sides of this issue present alluring arguments and certainly underscore how difficult and how important the issue we are wrestling with today is.

One thing is clear: the ideology of particular nominees often plays a significant role in the confirmation process. Unfortunately, knowing when and to what degree ideology should be a factor for the Senate is far more obscure.

For whatever reason, possibly senatorial fears of being labeled partisan, legitimate considerations of ideological beliefs seem to have been driven underground. It's not that we don't consider ideology, we just don't talk about it openly.

And, unfortunately, this unwillingness to openly examine ideology has sometimes led Senators who oppose a nominee to seek out non-ideological disqualifying factors, like small financial improprieties from long ago, to justify their opposition. This in turn has led to an escalating war of gotcha politics that has warped the Senate's confirmation process and harmed the Senate's reputation.

As many of you know, this was not always the Senate's practice. During the first 100 years of the Republic, one out of every four nominees to the Supreme Court was rejected by the Senate, many for clear ideological reasons. George Washington's appointment of John Rutledge to be Chief Justice and President Polk's nomination of George Woodward are two early examples of the Senate rejecting nominees on purely ideological grounds.

The power of the Senate in the nominations process has, however, been accordian-like, and from 1895 to 1967, only one Supreme Court nominee was defeated. Since 1968, ideological considerations have occassionally surfaced, notably in Republican opposition to the Fortas nomination to be Chief Justice and in Democratic opposition to the nomination of Robert Bork.

But since the Bork fight in 1987, ideology, while still an important factor for the Senate, has primarily been considered sub-rosa, fostering a search for a nominee's disqualifiers that are more personal and less substantive.

It is high time we returned to a more open and rational consideration of ideology when we review nominees. Let's make our confirmation process more honest, more clear, and hopefully more legitimate in the eye of the American people. And let's be fair to the nominees the President picks.

If we do this, the knotty question we face is how dominant a factor should a nominee's ideology be in the Senate's consideration. Historically, the role ideology has played in past confirmations has varied, but it seems to me that several factors are relevant:

First, the extent to which the President himself makes his initial selections on the basis of a particular ideology; second, the composition of the courts at the time of nomination; and third, the political climate of the day.

The Eisenhower presidency is instructive and shows how these factors affect the Senate's confirmation process. First, Eisenhower's selection criteria were non-ideological. He brought the ABA into his selection process and sought candidates with, as he put it, "solid common sense," eschewing candidates with "extreme legal or philosophical views."

Second, the balance of the courts was leftward in light of twenty years of Democratic appointments. In fact, when Eisenhower took office, four out of every five federal judges were Democrats. Third, politically Eisenhower had a strong mandate, having been elected by overwhelming majorities in both 1952 and 1956.

Thus, in a time when the courts had been filled by Democrats, a split Senate had little cause to ideologically oppose the non-political picks of an overwhelmingly popular Republican President.

Today, the calculus is much different. President Bush campaigned on a pledge to appoint judges of a particular stripe, like Justices Scalia and Thomas. And the balance of the courts, especially the Supreme Court, leans decidedly to the right.

Politically, the American people were completely divided in our recent national elections, sending a message of moderation and bipartisanship.

This era, perhaps more than any other before, calls out for collaboration between the President and the Senate in judicial appointments. It certainly justifies Senate opposition to judicial nominees whose views fall outside the mainstream and who have been selected in an attempt to further tilt the courts in an ideological direction.

Having one or even two Justices like Scalia and Thomas might be legitimate because it provides the Court with a particular view of constitutional jurisprudence. But having four or five or nine Justices like them would skew the Court, veering it far from the core values most Americans believe in. The Constitution instructs the Senate to first advise the President as to his choice of nominees and then to review and decide whether to confirm the President's picks. As the research of Professors Tribe, Sunstein and others has forcefully revealed, the debates of the Constitutional Convention suggest a fully shared authority between the President and the Senate as to the composition of the Supreme Court.

As Professor Sunstein has written, the text of Article II, section 2 assigns two distinct roles to the Senate -- an advisory one before the nomination and a reviewing function after it. The clause envisions, or at least encourages, collaboration in which Presidential consultation leads to easier confirmation.

Let me conclude by saying that I and many of my colleagues see the appointment of judges as the ultimate test of bipartisanship.

In electing two branches of our government, the country was split down the middle, leaving appointments to the third branch as perhaps the defining indicator of the political direction our country will take.

The President, of course, can choose to exercise his nomination power however he sees fit. But if the President sends countless nominees who are of a particular ideological caste, Democrats will likely exercise their constitutionally-given power to deny confirmation so that such nominees do not reorient the direction of the federal judiciary.

But if the President does not grossly inject ideological politics into his selection criteria, neither will the Senate.

Today, we are going to hear from two former White House Counsels who spent years advising and recommending candidates for the federal bench in both Republican and Democratic administrations.

We will also hear from some of the brightest legal academics around who have dedicated their careers to studying judicial nominations and the way the Senate and President handle them.

The issue we're discussing today is not merely academic. The stakes involved for our country are enormously high. The Supreme Court has split 5-4 on so many fundamental issues of the day, including most importantly the extent of power held by the Court's co-equal and democratically-elected branches of government.

We therefore begin this important inquiry and examination of the nominations process carefully, conscientiously, and fairly. Let me thank in advance our distinguished witnesses; we are very interested to hear your testimony and engage you on these issues.

I'll now turn to our Ranking Member, Senator Sessions for his opening statement. And let me just thank him up front for helping to make this a fully bipartisan hearing with equal numbers of witnesses. He and his staff are a pleasure to work with and I look forward to holding future hearings in the same manner.