July 28th, 2007

Schumer: Bush’s future Supreme Court nominations are guilty until proven innocent

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.

14 Responses to “Schumer: Bush’s future Supreme Court nominations are guilty until proven innocent”

  1. Zhombre Says:

    Senator Schumer is a very savvy, astute politician and a realist. He knows that in the long-term it is control of the courts that matter. The progressive agenda may be advanced through the courts even if progressives fail to win elections or persuade majority opinion, as long as judges on the bench are sympathetic and willing to bend the law. Judicial fiat grants what the electorate may not be willing or ready to give, and the liberal side is relieved of the messy business of persuasion, negotiation and compromise, of actually competing.

  2. University Update - Supreme Court - Schumer: Bush’s future Supreme Court nominations are guilty until proven innocent Says:

    [...] House Contact the Webmaster Link to Article supreme court Schumer: Bush’s future Supreme Court nominations are guilty until proven [...]

  3. gcotharn Says:

    Lack of citizen education about Government (via High School Government classes) allows Schumer to get away with this type of demagoguery.

    I recently had a couple of long beers with a friend and his wife. My friend routinely travels overseas, and he keeps up with world happenings pretty well. Yet, he did not understand the concept of Judicial Restraint. In his mind, a “Conservative” justice – such as Scalia, would be motivated to revoke Roe because of Scalia’s political beliefs and religious agenda.

    My friend could not conceive that Scalia would revoke Roe b/c Roe amounted to Judicial Activism. He insisted that a Catholic Scalia would revoke Roe b/c Scalia didn’t believe in abortion.

    My friend is a highly compensated Engineer. I asked if, in all his education, he had ever taken a government course, or a political science course. Answer: no.

  4. Stubbs Says:

    I don’t think Schumer is surprised by the court’s rulings. Is he admitting to having been bamboozled? He is just saying that the president is weak enough that future nominations can be obstructed.

    I do wonder if he isn’t telegraphing, despite himself, that one of the leftists on the court is likely to die or retire before Bush leaves office.

  5. Stubbs Says:

    Oh, and, yes, Democrats love to propose rules, like those now controlling office romances–excuse me, sexual harassment in the workplace–right until they come back to bite them (Clinton’s sex with a subordinate in the White House).

    I think the right has been lax in enforcing Democrats’ rules, and future SC nominees from the left should enjoy a scrutiny from the right that they have never before encountered.

  6. An FDR biographer thinks it’s time for another court-packing scheme… at Amused Cynic Says:

    [...] Neo-neocon on her senior senator’s latest assault on [...]

  7. Ymarsakar Says:

    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.

    Exactly, you can always count upon the Left to use the protection of that which they seek to destroy, to destroy that which they seek.

    Just as Leftists joined the military post 9/11 in order to gain “street cred” in dismantling the military from the inside out via rumours and false charges.

    Subversion and insurgency is predicated upon the premise that the strongest fortress can be taken by deception from an insider. Obstacles that cannot be defeated in a fair 1 on 1 fight can be defeated through treachery from the inside.

    The US Constitution is not immune to such.

    In fact, he has never held a job outside of politics.

    Don’t you just love people that love power that much, Neo?

    Btw, this imbalance of powers comes as a result of the President not cracking down on the domestic enemies of the US Constitution. This allows Congress and the Supreme Court to form an overbalanced power block that together can nullify Presidential powers. The US Constitution wanted to prevent this precisely because we know from Roman history that a triumverate is very stable, but a single or a double power structure is not stable at all. In a dual system, one of the two will turn on the other and wage civil war. In a One system, the one will become a dictator and Emperor.

  8. Mark Says:

    But is the triumvirate enhanced or weakened when one of its members is highly unpredictable? The Supreme Court is exactly that. What’s more, because it’s created by the other two, it is likely to become the center of vicious contentions, as we see now. Each side expects it to be loyal to one side or the other, an expectation that has been enhanced by a Court that for fifty years has shown more loyalty to the justices personal beliefs than to the words of the Constitution. It’s become a partisan-of-the-day in the political and popularity battles of Congress and the Executive, rather than standing as a Guardian of the Law.

    Until we get a Center that cares more about the written Constitution as the guardian of civil society, both the Right and the Left will be making claims on it.

    We can argue about who started it. We can claim that The Other Side is the worse abuser. But what’s most important is that we all get over it.

  9. JayC Says:

    Keep in mind that Schumer is also completely shameless. If a Democrat is elected in 2008, and nominates a SC justice, Schumer will be outraged if any Republican even considers voting against them.

    Everything he says today will go straight into the memory hole.

  10. Daveg Says:

    Everything he says today will go straight into the memory hole.

    Only if they succeed in getting something like the Fairness Doctrine back in place. I give them 50-50 odds on getting that done. I’m giving 100% odds that they will try, and that it will be narrowly written to only affect AM radio.

  11. md Says:

    I think the fact that Sen. Specter is concerned about this supreme court is germane to this post: “Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation.

    “Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate.

    “There are things he has said, and I want to see how well he has complied with it,” Specter said, singling out Roberts.

    “The Specter inquiry poses a potential political problem for the GOP and future nominees because Democrats are increasingly complaining that the Supreme Court moved quicker and more dramatically than advertised to overturn or chip away at prior decisions. “

  12. Bob M Says:

    “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. ”

    They will come back, but they won’t bite. Mainstream media won’t make much of a deal of it. And if anyone does, he will happily explain why those circumstances are materially different from the ones he addresses now, and it will be this rationalization that is highlighted.

  13. If instead of a lifelong partisan politician looking to turn the judiciary into an arm of his party, Chuch Schumer (D-NY) were the shortstop on a team in a close August penant race Says:

    [...] very definition of unfair. And I think that, given time, the fans will come to agree…”* Posted by Jeff G. @ 8:40 am | Trackback Share [...]

  14. Ymarsakar Says:

    What’s more, because it’s created by the other two, it is likely to become the center of vicious contentions, as we see now.

    The reason why that is is because the SC was never designed to hold much enforcement or legislative power. The reason why people fight over it now, is because people have freely and willingly given the SCourt powers of enforcement and legislation. The power to enforce laws (KELO Act when others want laws such as emminent domain enforced) and the power to create laws (Roe vs Wade).

    The triumverate is unbalanced because one corner is getting more and more power, necessitating that the two others try to vie for more alliances with the One.

    Essentially, the Executive Branch can remove the SC’s power of enforcement simply by not agreeing to abide by SC’s decisions. Andrew Jackson made a great example of that.

    The Legislative Branch can also just as easily remove the effect of the SC’s rulings on GitMo and abortion by making new laws that can’t be subverted by SC judges. But the Legislative Branch does not do, does it.

    Until we get a Center that cares more about the written Constitution as the guardian of civil society, both the Right and the Left will be making claims on it.

    Remove the powers from Supreme Court justices that were never designed for them, and nobody will want to fight over them.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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