It seems the gloves are off—not that they ever were really on.
Senator Schumer has flung down the gauntlet (can’t resist those glove metaphors) and said that the Democrats need to oppose all of President Bush’s future Supreme Court nominations, “except in extraordinary circumstances.”
This, of course, is a reversal of the Constitutional charge concerning the Senate’s participation in these matters. And this is despite the fact that Schumer made the speech at a meeting of a group that calls itself “The American Constitution Society.” Of course, since it also describes itself as “one of the nation’s leading progressive legal organization,” we can assume this is a very liberal organization.
According to Article II Section 2 of the Constitution, which enumerates Presidential powers, the executive branch appoints Supreme Court justices with the “advice and consent” of the Senate. This, of course, doesn’t mean that Senators must consent to presidential Supreme Court appointees. But it has meant—at least till certain relatively recent, more consistently obstructionist, decades—that traditionally it was only under extraordinary circumstances that the Senate would fail to confirm appointments, considered to be a prerogative of the executive branch. And, of course, it stands to reason that a President would be appointing Justices aligned with his/her own point of view. The balance of powers put into place by our foresighted founding fathers clearly placed this power with the President, with Congress occupying a very subsidiary role.
Shumer knows how to read a legal document; after all, he’s a lawyer, although he’s never practiced. But Schumer is a political animal through and through—he entered politics right after graduating from Harvard Law as a twenty-three year old, and never looked back. In fact, he has never held a job outside of politics.
Unfortunately, it shows. Not that such a history is necessary to flex Congressional muscles unduly. Nor is that practice limited to liberal Democrats—in the past, Newt Gingrich did some (unsuccessful) bullying himself when he tried to shut down Congress in a showdown with President Clinton.
But Schumer is certainly shameless in his partisanship, and in his contempt for the Constitution. He considers, strangely enough, that the “progressive” Senators who voted for Justice Roberts’s confirmation (he was not among them; Schumer held firm at “nay”) were “hoodwinked” during the hearings when Roberts said, among other things, that he thought judicial precedent was important and would respect it.
Schumer quickly brushes aside the fact that it is hardly unheard of for Justices to end up surprising the public when they actually get on the bench. Although he mentions Earl Warren—who became a tremendous liberal in one such reversal—as one of the prime examples, Schumer says, “Those days are over, as people have come to understand the central importance of the Court and the need to not take chances.”
The need not to take chances—an odd way to put it. Supreme Court Justices are nominated for life in order to free them from political considerations, or having to answer to anyone. Their character and their intellect are their qualifications, and they are presumed to rule on the merits of each decision as they see fit, which includes the possibility of growth and change. Precedent—as Schumer well knows—is not sacrosanct, even to conservatives.
Is Schumer really as in love with following precedent as his speech would indicate? Of course not; the Warren Court, one of the most liberal ever, repeatedly smashed precedent in its rulings, and no doubt Schumer applauds that Court’s iconoclasm—or, rather, what he might call its “progressivism.”
Is Schumer upset because Roberts and Alito misled the Senate when they said they would respect precedent? Doubtful indeed. If their decisions had been in line with Schumer’s politics he would almost certainly have considered any divergence with whatever they said at Senate hearings, or with precedent, to be evidence of change and growth.
No, what it boils down to is that Schumer is hopping mad they turned out to be more conservative than he’d thought. And even in this he can hardly consider himself “hoodwinked.” As he himself points out, Bush indicated he wanted to appoint Justices in the mold of Scalia and Thomas. He also admits that the judicial records of Roberts and Alito were quite conservative. He’s just surprised that they’ve continued that way after making nicey-nicey to the Senate. He shouldn’t be.
Schumer indicates that if President Bush gets any more chances to appoint future Supreme Court nominees, they should be considered to be something like defendents in a trial with the burden of proof against them—guilty, as it were, until proven innocent. Guilty of what? Of being the sort of Justice President Bush wants:
The burden of proof lies with the nominee to prove that he is something other than what the President chose him for.
Schumer seems to think that his words will not come back to bite him if a Democrat becomes President and tries to nominate Supreme Court Justices of his/her own. Either he believes that Republicans will take the high road and be less obstructionist than he and his fellow “progressives,” or he thinks Republicans will do so poorly in 2008 and 2012 that Democrats will have the Senate numbers to override any Republican attempts to similarly block virtually all Court nominations.
I suggest that Schumer should rely on his experience as a political animal, and think again.