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Senator Schumer's Says No More GOP Justices:

Speaking yesterday at the American Constitution Society's National Convention, Senator Charles Schumer said that the Senate was "duped" and "hoodwinked" by John Roberts' and Samuel Alito's confirmation hearing performances and explained that he would "do everything in [his] power to prevent" the confirmation of another justice like John Roberts or Samuel Alito. Here are some excerpts:

Although we have only experienced one full term with both Roberts and Alito on the Supreme Court, it appears that we were not given the most accurate picture of the nominees we confirmed.

After hearing Roberts wax philosophic about judicial modesty at his confirmation hearings, and then reading his calculated decisions furtively defying stare decisis, I can only conclude that we were presented a misleading portrait.

And so, every day, I feel more comfortable with my vote against Chief Justice Roberts.

And every day, I am pained that I didn't do more to try to block Justice Alito. Every two years, I look back and take stock of my greatest failings and regrets in the past Congress. Without question, my greatest regret in the 109th Congress was not doing more to block Alito. Alito shouldn't have been confirmed. I should have done a better job; my colleagues said we didn't have the votes, but I think we should have twisted more arms and done more. . . .

We now have the most conservative Supreme Court in memory. And, as everyone knows, the Justices who are -- actuarially speaking -- most likely to step down next are the liberal ones.

The Court is, interestingly, at odds with the country. As the Court grows more conservative, the rest of the nation is in the midst of a pendulum swing in the progressive direction.

Unless we are vigilant in our efforts to moderate the Court, that institution will stand in the way of a much-needed and long-overdue swing back to moderation. . . .

[F]or the rest of this President's term and if there is another Republican elected with the same selection criteria let me say this:

We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito.

Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.

They must prove by actions—not words—that they are in the mainstream, rather than the Senate proving that they are not.

Here's coverage of the speech from Politico and Reuters. The full text is on-line at the ACS Blog here.

Related Posts (on one page):

  1. Are Democrats Short-Sighted on Judges?
  2. Senator Schumer's Says No More GOP Justices:
EIDE_Interface (mail):
Ah as usually Chucky Schumber is throwing a tantrum because he doesn't like the Roberts ideology. Yeah, let's throw a fit because left-wing activists don't rule the SCOTUS anymore!
7.28.2007 12:19pm
Justice Fuller:
Question for Chuck Schumer: In what period was the Supreme Court in your view a "moderate" court? 1966?
7.28.2007 12:22pm
plunge (mail):
Sort of offtopic, but isn't it sort of funny that wikipedia STILL can't seem to bring itself to call drudgereport a conservative/Republican slanted site? This non-story is top collumn news, and the claim of Edwards that the right wing media is out to get him is, rather ironically, the lead.
7.28.2007 12:45pm
Daniel Chapman (mail):
"We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance."

The fact that every controversial case turns out 5-4 says otherwise, Senator...
7.28.2007 12:46pm
CaseyL (mail):
SFAIK, there wasn't anything in Alito's past record to indicate he wouldn't respect precedent. My concern during his confirmation - which the Senate did little to address - was his position on the Unitary Executive.

There are many problems with the confirmation process.

One is that people appointed for ideological reasons can and will lie: they'll say their one-sided views were merely for-hire opinions (as Alito and, IIRC, Roberts did), and don't reflect what they'll actually do once they're on the Court. This is where the "presumption of confirmation" should be reversed. A nominee's past writings should be taken as evidence of their actual philosophy.

Another is that Senators have been reluctant to ask serious questions about why a particular nominee has been nominated. Ideological balance might be a legitimate criterion, but customizing the SCTOUS to be sympathetic to a specific political agenda - e.g., protecting claims of Executive Privilege, upholding a Unitary Authority that has no basis in the Constitution - is very much not a legitimate criterion.

Also, confirmation hearings can't be held in a vacuum. When an Administration has a long history of acting mendaciously, in bad faith, with a deep contempt for the American political system, and has already wrecked everything it has touched, "presumption of confirmation" should go right out the window.
7.28.2007 12:54pm
volokh watcher (mail):
The political pendulum does always swing back in our history.

And "Chucky," as a commenter above called Schumer, is merely complaining about the operative SCOTUS majority the same way the John-Bircher types, and other conservatives, did in the 60's. We need "strict constructionists," they cried (and still do).

One day, commenters Justice Fuller and EIDE-Interface will be complaining until red-faced about recently confirmed justices appointed by Democrat[ ] presidents, using thoughtful characterizations like "liberal pinko communists" the way Archie Bunker would have.
7.28.2007 1:00pm
PersonFromPorlock:
I do admire the principled way in which Sen. Schumer has concluded what a lesser man might out of sheer partisanship.
7.28.2007 1:08pm
Matthew Kelley (mail):
I admit I am a little confused by Senator Schumer's confusion. Just because he didn't do his research doesn't mean he didn't know what these justices were going to do. Give me a break, whatever political deal that got made behind closed doors helped him out at the time. Everybody with a legal education knew what Roberts and Alito were going to do. I am so confused that everyone is now so surprised that they actually acted the way anybody who read their previous work thought they would.
7.28.2007 1:14pm
Prosecutorial Indiscretion:
The only long-term solution to this mess is to emasculate the Court, seeing it adopt a robust judicial restraint that defers to the more democratically-accountable branches except where the Constitution is explicitly violated. And that would not be such a bad outcome.

Until that day comes, I don't see things getting back to the way they were pre-Bork. There's money to be raised and bases to rally from tarnishing the names of brilliant and able judges and nominees from both ends of the ideological spectrum as long as you can turn each confirmation into a referendum on abortion, affirmative action, environmental regulation, or whatever other issue can be made to resonate with a given group of people.

When the Court decides an issue it creates two big problems. First, the decision cannot be changed without great effort and patience either on the Court itself or through a laborious democratic process. Second, the decisionmakers cannot realistically be held accountable. Displeasure with the past decisions of the Court is taken out on future nominees, who are held vicariously accountable. The latter is not necessarily a problem; I'm all for life tenure. But the Court should generally be engaged in dry and boring work as a structural check and arbiter of procedure, work that will not incline most people to hold its justices accountable for anything. Virtually any issue that gets people fired up should be resolved via the elected branches, with a few notable exceptions (e.g.,<i>Brown</i>, with the odd case relating to something like the independent counsel or the limits of Congress's authority potentially attratcing some attention too).

In the meantime, confirmation battles are simply policy battles by proxy, with the unfortunate side effect of putting some of our best and brightest legal minds in the crossfire and relentlessly maligning them on the national stage.

Please pardon the ranty nature of this comment, as well as any spelling or grammatical errors.
7.28.2007 1:24pm
EIDE_Interface (mail):
I for sure will call out a pinko Commie when I see one. Now I need to get to the terlut.
7.28.2007 1:25pm
Justice Fuller:
volokh watcher, I like Schumer a lot, actually, and I often vote Democrat myself. But I just think Schumer's wrong in suggesting that the current Supreme Court is really out of step with public opinion.
7.28.2007 1:27pm
Steven Lubet (mail):
When conservatives don't like Supreme Court justices, they call for impeachment (some people call for worse, but I won't characterize them as conservatives). When liberals don't like Supreme Court justices, they call for more careful confirmation hearings in the future.
7.28.2007 1:35pm
Christopher Hagar:
Justice Fuller: Yes, the Democrats have misinterpreted the public's dislike of Bush and opposition to the Iraq war that put them in Congress as being support for totally unrelated things like "progressive" causes, government-run health care, etc.
7.28.2007 1:39pm
Michael B (mail):
Chuck Schumer is the Pee Wee Herman of the Senate, excepting he - his ego and his ever-increasing physical size - isn't so "wee." Give him some super-sized helpings at one of Washington D.C.'s lavish restaurants until he's sated, then give him a microphone, place him before the right audience so he additionally has equally generous helpings of applause, then print his name with attendant and often near-mindless plaudits in the NYT and other rags and, voila: Chuck Schumer, the walking, talking personification of D.C. based narcissism, posing as more serious and temperate commentary.

Read what he says above (or the entirety here); then read what he doesn't say, what he avoids saying, how he avoids any serious or more temperate and incisive and specific juridical analysis/commentary, how he avoids any genuine gravitas in addressing his subject (the Constitution and interpretation thereof no less), how he forwards political pabulum in lieu of that gravitas, albeit with the now-standard Schumerian rhetorical flourishes.

Chuck Schumer is politicized perversity personified. Yet is applauded by pew-sitters on the left endlessly. But at least Chucky is informing us about lessons learned. He informs us, doncha know, that ideology matters.

Who'd a thunk it without Chucky's help?
7.28.2007 1:40pm
Glenn W. Bowen (mail):

Senator Charles Schumer said that the Senate was "duped" and "hoodwinked" by John Roberts' and Samuel Alito's confirmation hearing performances


...it takes a big man to admit he and his colleagues are below average intelligence- they're always the last to know, FWIW.
7.28.2007 1:44pm
Al (mail):
When liberals don't like Supreme Court justices, they call for more careful confirmation hearings in the future.

Yep, they call for either more careful confirmation hearings in the future...or that the justice be fed lots of eggs and bacon so that he dies of heart disease.

I certainly don't remember any "liberals" calling for impeachment (or worse) after the Bush v. Gore decision in 2000, no sir.
7.28.2007 1:56pm
Steve2:

The Court is, interestingly, at odds with the country. As the Court grows more conservative, the rest of the nation is in the midst of a pendulum swing in the progressive direction.


I wish he were right. Oh, how I wish he were right. But he isn't. The country's not moving in the right direction, it's moving in the same direction as the Court - which is likely why the Court's moving in the direction it is.
7.28.2007 2:01pm
Mr. Impressive (mail):
Mr. Schumer makes what is simply a brilliant proposal. Shift the burden of proof to the nominees to establish that their point of views are reasonable and that they will show sufficient restraint and deference towards the democratic branches.

In other words, lack of a paper trail is sufficient reason to vote for someone. This would be quite effective in ending stealth as a viable confirmation strategy. It would have the salutory effect of giving those with a paper trail an advantage over those without one.

Also, Schumer is a breath of fresh air for suggesting that ideology is very important in the confirmation process. Because ideological balance is important, we should increase the size of the Supreme Court to counter the direction it is going now.
7.28.2007 2:02pm
CheckEnclosed (mail):
Senator Schumer must like the idea of having Anthony Kennedy decide all of the most important issues before SCOTUS. Let's assume that a Justice (Stevens?) steps down and no one nominated by a republican can get confirmed. Then all the cases that are now 5-4 for the "conservative" wing of the Court will be 5-3, and those that now go 5-4 for the "liberal" wing will go 4-4. That means that granting cert. to cases you want to see affirmed will be more tactically significant. At the same time, the "liberals" will not have the 4 votes needed to grant cert. unless Kennedy joins them.

If that is the outcome of adoption of Schumer's proposal, while inviting Republican blowback if a Democrat ever gets into the White House, while the confirmation process gets ever more tawdry and partisan, just how big a win could it be for the Democrats? Great for Justice Kennedy, though.
7.28.2007 2:10pm
Mr. Impressive (mail):
Steve2,

Actually, you have little grounds to worry. It is clear that the country is moving in the progressive direction after a taste of what it means to have Republicans in power.

Things are actually better than ever for progressives. The rise of the Republicans have cleansed Democratic ranks of the conservatives who used to pollute our ranks and keep promising liberals from competing for political positions. Republicans used to talk about how we had 50 years of Democratic control of the Congress before they took over. What they failed to mention was that many Democrats were actually quite conservative.

Now, we have a Democratic majority. And most Democrats in that majority are actual liberals.

So, the rise of Republicans has been a very good thing. It cleansed the ranks of the Democratic party and it demonstrated to the public how useless the Republican party is.

What did the Republicans accomplish with their majority? Bankruptcy reform? What a joke.

The Supreme Court notwithstanding, our country is about to enter into a progressive period. All we need is enough Democratic backbone to take back the Supreme Court (by increasing its size) and enough Democratic footwork to ensure that whoever the Democratic nominee is, whether Clinton or Obama, wins the Presidency.

While we are at it, we can take the populated portion of DC and make it into a state, while leaving just the Capitol Building and other government buildings unrepresented in Congress.

It is, indeed, a good time to be a liberal or progressive.
7.28.2007 2:12pm
Mr. Impressive (mail):
CheckEnclosed,

Please explain how having a liberal justice replaced by another Scalia will help ensure that liberals have enough votes for cert.

If one has to choose between having a vacancy or another Scalia, it is obviously in the best interests of liberals to go with the vacancy.
7.28.2007 2:15pm
OrinKerr:
Steve Lubet,

What, no love for Court-packing?
7.28.2007 2:45pm
TerrencePhilip:
If he was genuinely surprised that Bush's appointees have voted as anticipated, he would not have been smart enough to get elected to the US Senate.
7.28.2007 2:54pm
Truth Seeker:
"We should reverse the presumption of confirmation."

It's "advise and consent" not advise and fillibuster. Give Bush your two cents and then consent to HIS nominee. Period.
7.28.2007 2:55pm
Truth Seeker:
I look forward to the day when Fred or Rudy whups Hillary or Obambi and the news is filled with stories of progressives with post-election syndrome and call to the Canadian embassy! It'll be like when they finally got their hero McGovern nominated. But with a better opponent than Nixon.
7.28.2007 2:58pm
John Herbison (mail):
Justice Fuller states, "I often vote Democrat myself." Given his proclivity to use a noun as an adverb, does Justice Fuller ever vote literate?
7.28.2007 2:59pm
Mr. Impressive (mail):
TerrencePhilip,

Yeah, I guess it is foolish to trust a conservative would not deceive the committee about:

(1) Respecting the considered views of all his colleagues while trying to seek consensus.

(2) Showing respect for precedent.

To Mr. Schumer's credit, he voted against the deceptive Mr. Roberts, who sold a bill of goods that didn't match up with his rhetoric during his confirmation hearing.

That said, I don't think it is naive to think that an honorable conservatives means what he says. But maybe it is naive to think that a conservative would be honorable rather than deceptive.

Yes, we liberals have been burned. Don't expect it to happen again.
7.28.2007 3:08pm
Russ (mail):
Mr. Impressive,

Politics moves in cycles, and the democrats won't be in charge forever. A Republican Congress approved Ginsburg, with almost every Republican voting to confirm, despite disagreeing with her views, since they sought to defer to the President on the principle that he should be allowed to choose who he wants.

However, this could change that. If Schumer goes forward with this, and most nominees don't even get a vote(which is likely what would have to happen to make this work), the Republicans will pay it back in spades when the roles are reversed.

Remember what folks say about payback...
7.28.2007 3:08pm
Truth Seeker:
Did anyone ever notice that in the last 100 years the only time the Democrats could win the presidency was if there was
a third pary upsetter (1912, 1992)
a national crisis (1932 depression, 1976 watergate)
a stolen election (1960)
a re-election of a sitting president (1916, 1936, 1940, 1944, 1948, 1964, 1996)
Interesting.
7.28.2007 3:09pm
Mr. Impressive (mail):
Truth Seeker,

What an amusing twisted interpretation of the Senate's constitutional duties. So, you think the Senate is nothing more than a rubber stamp?
7.28.2007 3:10pm
Truth Seeker:
No wonder there's a push for Bloomberg to run. But he'd take more votes from the Dems. And Nader is talking about running. Since his numerous organizations get more donations when Republicans are in power he naturally wants to help the Dems. lose.
2008 will be one hell of an election.
7.28.2007 3:14pm
Dave N (mail):
Mr (Rather Less Than) Impressive,

Let's change hypotheticals. It is 2009, Senator Sam Brownback (also a member of the Senate Judiciary Committee) announced after President Hillary Clinton took office that he will not give a presumption of confirmation to her nomination to replace Justice John Paul Stevens, an otherwise well qualified appellate judge with a sterling reputation. Rather, he grandly announces, he will want to ensure that President Clinton's appointee is not "extreme."

Further, Senator Brownback announces he will do everything in his power to prevent President Clinton's nominee from being confirmed.

Now for the easy question (for all but the most absolutely rabidly partisan). How is my hypothetical position by Sam Brownback any different than what Chuck Schumer has said?
7.28.2007 3:17pm
Daniel Chapman (mail):
You use the word "clense" too much, Mr. Impresive... it makes you look like some sort of lunatic.
7.28.2007 3:18pm
Steven Lubet (mail):
Orin: No, not much love for court packing. And in any event, Smith is just wrong when he says that it would only take a Congressional majority. Senate Republicans would obviously filibuster any expansion of the SCOTUS (and who could blame them?), as they would also filibuster nominees to any new seats that were somehow created (no more claims that filibusters violate the "Constitutional option").
7.28.2007 3:27pm
EIDE_Interface (mail):
Mr. Impressive has a few fascistic tendencies. But that's not out of line among the Kos crowd.
7.28.2007 3:28pm
Michael B (mail):
"I am not a scholar or a practitioner, but a Senator. As such, I am vested by the Constitution with the responsibility to provide advice and consent on the President's judicial nominees." Chuck Schumer, emphases added

Yes Senator, you are vested by the Constitution with a responsibility to provide advice and consent. (Note Ruth Bader Ginsburg's, among others', confirmation by congressional Republicans.) That's the U.S. Constitution, Chuck. Try to remember that vis-a-vis Supreme Court nominees as well as other judicial nominees, to lower courts. Remember. Remember what document has vested you with what responsibility.

And Senator, you are a graduate of both Harvard College and Harvard Law School, so you possess, via those bona fides and others, the ability to comment with far more Constitutional and juridical probity, yet you resort to platitudes, even while decrying the platitudes of others. And Senator, you speak to the need for "humility," Chuck Schumer insisting upon the need for humility. (Pause, consider.) Next we'll have Rosie O'Donnell demanding temperate and considered opinion, from others. Too, Chuck decries the hearings for providing more "heat than light"? This is Chuck Schumer preaching. Physician, heal thyself.

And the glosses, referencing Carhart, Seattle School District, etc. Almost entirely pure political spin rather than more incisive, more penetrating, more evenhanded juridical and Constitutional commentary. Rosie O'Donnellesque, through and through.

But Chuck is notably right in suggesting he offers us prologue, prologue for 2008. It's a political war. I.e. Chuck Schumer is being Chuck Schumer, a profoundly and willingly Kosified left-Dem, ratcheting up the rhetoric, lowering standards, the Constitution be damned.
7.28.2007 3:47pm
Elliot123 (mail):
Is it OK to customize the SCOTUS to be sympathetic to abortion availability?
7.28.2007 3:52pm
PersonFromPorlock:

How is my hypothetical position by Sam Brownback any different than what Chuck Schumer has said?

Oh, that one's too easy. Conservatives = Spawn of Satan; Progressives = Elect of God.
7.28.2007 3:54pm
Truth Seeker:
Oh, that one's too easy. Conservatives = Spawn of Satan; Progressives = Elect of God.

Better change that to Elect of Gaia. Progressives are known for being religious.
7.28.2007 4:12pm
Truth Seeker:
I meant NOT known.
7.28.2007 4:23pm
Jeremy Pierce (mail) (www):
I'm trying to figure out what he means by saying the Senate was fooled. Does he mean he was fooled? If so, how could he still have managed to vote against both of them both in committee and on the Senate floor? Was he fooled into thinking they were moderate, all the while calling them way outside the mainstream? Are even moderates way outside the mainstream?

The other possibility is that the rest of the Senate, the 50-some percent that voted to confirm these nominees, were fooled. Is that what he means? But surely he should have thought that back then when he didn't go along with them. Why does he need some investigation into the hearings to show something he and 40-some percent of the Senate were aware of during the hearing process? I know he did object to certain things then, such as the standing practice of not commenting on cases that might come before the Court. He thinks he should be able to ask nominees exactly how they'd rule outcome-wise even without giving the nominees the facts of the cases relevant for deciding them. (At least that's what follows from the speeches he gave at the time given how Roberts and Alito defended their view on this and given his disagreement.)
7.28.2007 4:53pm
Jim Rhoads (mail):
A few observations:

First, Schumer and many of his Democratic colleagues on the Judiciary Committee voted against Alito and Roberts.

Second, Roberts and Alito had been judges, and written opinions.

Third, until recently it would have unthinkable to expect future justices to make any promises as to how they would decide actual cases.

Fourth, I suspect that Schumer does not have the intellectual horsepower to make out a cogent case that either Roberts or Alito has written any opinions on the SCOTUS bench that materially contravenes their testimony in the Senate.
7.28.2007 5:24pm
volokh watcher (mail):
My apology to Justice Fuller.

Jim Rhoads, your "intellectual horsepower" argument about Schumer sure takes a shot at Harvard Law grads.

Roberts went to, uh, let me think . . . Harvard Law. But he's full of intellectual horsepower because . . . he's movement conservative.

I see the distinction now in your thinking.
7.28.2007 6:01pm
Heh:

Jim Rhoads, your "intellectual horsepower" argument about Schumer sure takes a shot at Harvard Law grads.


How so? I read his quote twice, and it seems to take a shot at one person: Schumer. The fact that Schumer went to Harvard doesn't magically make a comment about him a comment about anyone else who went there. I can't even imagine how one would reach such a conclusion.

I personally wouldn't say Schumer lacks intellectual horsepower. I've listened to him speak and read some of the things he's written, and he comes across as well as any other senator. The problem is that in this case he was clearly playing to an audience. I think that was abundantly clear when we saw the line about his regrets right after the line where he re-assured himself he voted correctly.

He's cruising for sympathy in the hopes that the listener will hear his contriteness and say "Hey, if he feels so bad about it that he's apologizing in public and berating himself over it, it must be bad".

I have a co-worker who practices such statements regularly. He will immediately apologize for anything and begin a diatribe that often leaves the listeners feeling sorry for him, instead of upset at his missed goal. It's quite impressive to watch once you realize the game :)
7.28.2007 6:53pm
The General:
Schmuck Schumer will forget about ideological balance and his anti-presumption diatribe if Hillary, God help us, gets elected. He is just being a whiny little bitch. All this blather about respecting precedents is bullshit. He only cares about liberal precedents. No nominee worth his salt would commit to upholding any precedent during the confirmation hearings. Alito and Roberts made no such promises. Much of what Alito and Roberts said was identical to what Ginsburg and Breyer said during theirs.

You commie libs should just get over the fact that the Supreme Court is not your personal super-legislature where all of your socialist hopes and dreams (that you can't pass thru legislative means) get enacted and constitutionalized.
7.28.2007 8:17pm
Seamus (mail):
Alito and Roberts made no such promises. Much of what Alito and Roberts said was identical to what Ginsburg and Breyer said during theirs.

Except that anyone who believed it of Ginsberg, who had a pretty extensive track record, was wilfully blind.
7.28.2007 9:02pm
Seamus (mail):
By "it," in the preceding post, I meant the idea that she would be non-ideological. (I realize that, to the extent there was an antecedent for the pronoun, it wasn't what I wanted to refer to. sorry about that.)
7.28.2007 9:04pm
Eli Rabett (www):
Always struck me that if the President insists on not honoring the Senate's subpoenas the Senate should refuse to vote on any of the President's nominations.
7.28.2007 9:41pm
Truth Seeker:
Always struck me that if the President insists on not honoring the Senate's subpoenas the Senate should refuse to vote on any of the President's nominations.

Okay. How about if Bush then makes a recess appointment of the most conservative person he can find? Bork anyone?
7.28.2007 10:31pm
byomtov (mail):
You commie libs

Where's Dave when you need him?
7.28.2007 11:16pm
byomtov (mail):
You use the word "clense" too much, Mr. Impresive... it makes you look like some sort of lunatic.

Mr. Impressive has a few fascistic tendencies. But that's not out of line among the Kos crowd.

Conservatives rely on logic and evidence, and never resort to name-calling and insults. Right, folks?
7.28.2007 11:21pm
DrGrishka (mail):
Apparently, Chuck Schumer along with Mr. Impressive thinks that Senate Democrats are a bunch of idiots. They have been "burned" with Thomas, and Scalia (98-0) and Alito and Roberts. If the Senate Democrats are truly that gullible why should anyone listen to anything they have to say on any given subject?
7.29.2007 12:13am
Captain Ned:
Can Chuckie please point me to the part of the Constitution that says the Supreme Court must always be the Warren Court?
7.29.2007 12:29am
David M. Nieporent (www):
First, Schumer has been saying for a long time that the Senate ought to take ideology into account. Whether one agrees or not, I think we ought to all agree that the alternate Democratic strategy -- take ideology into account while pretending one isn't, requiring one to find another excuse to vote against the nominee, and manufacturing phony charges of racism to create said excuse -- is less than ideal.

Second, while I give credit for honesty to Schumer on that point, I have to deduct an equal amount of credit for dishonesty for this absurd "They told me they'd respect precedent, but I can find a few cases where they didn't, so they lied and tricked me" shtick.

Third, double negative points for his use of the phony New York Times definition of "out of the mainstream," which means "mainstream liberalism" or "mainstream Democratic ideology" or "mainstream New Yorker" rather than "mainstream American." (E.g., the Times thinks that anybody who's anti-abortion is "out of the mainstream," even though (depending on how one phrases the question) anywhere between 30-70% of the population is "out of the mainstream [sic]" on this point.)

Fourth, I do think it significant that Breyer and Ginsburg had no trouble getting confirmed by Republicans, while Democrats have tried to block every GOP nominee -- even liberal nominees like Souter.
7.29.2007 12:32am
Lev:

First, Schumer has been saying for a long time that the Senate ought to take ideology into account.


So long as schmucks like Schumer turn to the courts for policy enactment, and judge judges on whether they duly enact Schumer's policy into the case law, ideology will matter, but it will matter because the Schumers go to the courts instead of trying to persuade their fellow citizens.


Second, while I give credit for honesty to Schumer on that point, I have to deduct an equal amount of credit for dishonesty for this absurd "They told me they'd respect precedent


To demagogues such as Schumer, stare decisis at the Supreme Court level is a one way ratchet to the left, stare decisis being the Schumerian Doctrine that, just as there are no enemies on the left, cases to the left shall not be revisited, ever.
7.29.2007 1:12am
Public_Defender (mail):
To use Bush-style analysis, the Constitution does not require a vote, the Senate doesn't have to vote. If the president nominates someone the dems don't like, critics can stop whining and pound salt.

The exercise of raw power untempered by discretion or respect for tradition is fun.
7.29.2007 8:00am
David M. Nieporent (www):
To use Bush-style analysis, the Constitution does not require a vote, the Senate doesn't have to vote. If the president nominates someone the dems don't like, critics can stop whining and pound salt.

The exercise of raw power untempered by discretion or respect for tradition is fun.
Fun? Not if you haven't thought it through. Two words: recess appointments. If the Senate doesn't vote, there's a vacancy. If there's a vacancy, the president can appoint people as soon as the Senate adjourns. So you're giving the president the power to appoint people without even having to worry about confirmation.
7.29.2007 8:44am
Eli Rabett (www):
The Senate has to recess. There is an answer to that if Bush tries to push it, and then John Bolton was out of work after a year, moreover a recess appointee trying to get permanent work is on probation for that year. Cry me a river
7.29.2007 11:40am
CJColucci:
Running out the clock on a lame duck President's judicial appointees is standard, good, clean, bipartisan fun. Let's not make more of this than it is.
7.29.2007 2:04pm
Perry C (mail):
Behind all this BS is simply a "I don't like the way things turned out". Notice that not once does Schumer question the wisdom of the court or the logic of its results. All he questions is the way results have turned out, wringing his hands with the hypothetical that all the 5-4 results would be 5-4 results going the other way is O'Connor were still there.

And court packing is just another deceptive way of saying that. Instead of court packing, why not just reduce the Supreme Court to one justice who will always be "progressive"? I don't think Schumer or progressives would be all that opposed to it if it meant allowing gay marriage, banning war, agreeing to racial/gender redistribution at the whim of sociologists and the government, and legalizing abortion/marijuana/etc.

We're not really supposed to have a Supreme Court based more on how we like results than the logic and justice of opinions, are we?
7.29.2007 6:24pm
JosephSlater (mail):
CJColucci with the correct analysis just above.
7.30.2007 3:52pm
KeithK (mail):
Since he entered the Senate Schumer has been arguing that ideology should be a factor, if not the deciding factor, in the approval of judicial nominees. He has been the leader in moving his caucus towards that position. He didn't have the votes to defeat Roberts and Alito, both very qualified nominees, except through filibuster that his colleagues thought would be too costly to risk. Now that the Democrats have more votes he's trying to advance this strategy.

All of this is political maneuvering and we'll see how it plays out.
7.30.2007 4:12pm
NickM (mail) (www):
How much chutzpah does it take to claim to have been hoodwinked by people you voted against in the first place?

Is Senator Schumer saying that he thought Roberts and Alito would be "judicial moderates", but he voted against them anyway?

Nick
7.30.2007 4:16pm
abb3w:
Steven Lubet: When conservatives don't like Supreme Court justices, they call for impeachment (some people call for worse, but I won't characterize them as conservatives). When liberals don't like Supreme Court justices, they call for more careful confirmation hearings in the future.

I'm generally considered more liberal/libertarian than conservative; I'd be inclined to consider the recent term's Merideth v. Board ruling grounds for impeachment.

Aside from that, however, Schumer's claims are merely sound and fury. While I haven't liked a number of the rulings of late (Bong Hits for Jesus! Abort the Gay Feminist Whales with a Nuclear Handgun! Ahem.), they have not been inconsistent with stare decisis save the sole aforementioned exception.
7.30.2007 5:08pm
Larry Fafarman (mail) (www):
Who cares about having more GOP Supreme Court justices? What we don't need for a while are more graduates of Ivy League -- particularly Harvard -- and Stanford law schools! The Supreme Court now has five Harvard Law School grads, a justice who attended Harvard Law School but graduated from Columbia Law School, and two Yale Law School grads. Only one justice graduated from a non-Ivy League law school -- Northwestern. The last two justices to leave the court both graduated from Stanford Law School. We need more balance on the court.
8.1.2007 12:26am