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politics

Judge Robert Bork

To Bork or not to Bork
Democrats give notice that ideology will play a role when the Senate considers Bush's judicial nominees.

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By Alicia Montgomery

June 27, 2001 | WASHINGTON -- Everyone knew that when the Democrats took over the Senate, the road for President Bush's judicial appointments became much rougher. But to make sure that message was clear to the administration -- and perhaps to create some political cover for when the time comes to oppose would-be judges -- Democrats decided to publicly explore the reasons why judicial nominees should be grilled about their political leanings.

In a hearing Tuesday, it was the job of Sen. Charles Schumer, D-N.Y., a member of the Senate Judiciary Committee, to run the proceedings with the high-minded title "Should Ideology Matter? Judicial Nominations 2001." Schumer had already given a preview of his own answer to the question in an Op-Ed piece in Tuesday's New York Times, in which he wrote, "Pretending that ideology doesn't matter -- or, even worse, doesn't exist -- is exactly the opposite of what the Senate should do."

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He reiterated that point during the hearing, saying that ignoring ideology has led to more "gotcha politics" in the confirmation process, with senators and interest groups digging for dirt in nominees' writings, financial records and personal lives to camouflage differences over issues like abortion and gun control. He argued that such practices increase public cynicism about the nomination process. "Let's make our confirmation process more honest, more clear and hopefully more legitimate in the eye of the American people," he said.

But Republicans at the hearing made it known that they believed fairness was the last thing Schumer and other Democrats were looking for in the confirmation process, and that Democrats were instead laying the groundwork for a full-bodied "Borking" of Bush's nominees.

When Schumer said "ideology," Republicans heard "litmus test," and Sen. Mitch McConnell, R-Ky., helpfully offered what he feared were some of the liberal tenets that nominees would have to accept in order to win confirmation. In McConnell's view, Bush nominees would have to support "partial-birth abortion," "judicial activism" and "racial preferences." Nominees would also be required, he said, to promise to "restrict First Amendment rights of political speech and association" -- code for supporting campaign reform limits.

With 107 judgeships needing to be filled by the Bush administration, Republicans are warily watching the Democrats' positioning. A GOP source close to the Judiciary Committee said that three of the president's first batch of nominees are likely to be targeted by Democrats:

Michael McConnell, a legal scholar who has advocated greater government support of religious institutions and publicly funded school vouchers, and who has voiced support for the Boy Scouts of America's ban on gays.

Jeffrey Sutton, another school voucher fan, who is a member of the conservative Federalist Society, and who donated $1,000 to Bush's presidential campaign in 1999.

Deborah Cook, an Ohio state Supreme Court justice who opposed a lawsuit against gun makers and supported limits on jury damage awards, and who -- with her husband -- has donated over $13,000 to the Republican Party and GOP candidates in the past four years.

A Democratic source close to the Judiciary Committee said that the party was reserving judgment on all of the Bush nominees, but agreed that McConnell could be in danger.

Republicans are indignant at the prospect that Bush's nominees could be subjected to an ideological third degree. They claim that former President Clinton's judicial nominees were never subjected to the Republican equivalent of such testing. And they say that Schumer was trying to change the ground rules of confirmation at Tuesday's hearing. "What's being suggested here is a significant departure from the way that nominees have traditionally been treated," said Sen. Jon Kyl, R-Ariz. "Have there been exceptions? Quite. But they prove the rule because they are exceptions to the general deference that's always been given to the president's nominees."

Schumer, of course, disputed this, saying that Republicans' method of avoiding appearances of partisanship against Clinton nominees was to put the former president on notice that all judicial liberals would be dead on arrival.

Next page | Tribe on the Supreme Court's "disdain for democracy"
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Photograph by Corbis












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