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Last week’s high-minded hearing regarding judicial nominations and ideology with law professors, legal activists, and former White House counsel did nothing to lower the tension between Senate Republicans and Democrats over the anticipated treatment of President George W. Bush’s candidates for the courts. Clearly enjoying their newfound control of the Senate, Democrats used the June 26 discussion before the Judiciary Subcommittee on Administrative Oversight and the Courts to reaffirm their expected resistance to a slate of judges in the mold of conservative Justices Antonin Scalia and Clarence Thomas, the president’s acknowledged favorites. “If the president sends countless nominees who are of a particular ideological cast, Democrats will likely exercise their constitutionally given power to deny confirmation so that such nominees do not reorient the direction of the federal judiciary,” said Sen. Charles Schumer, the New York Democrat who chairs the subcommittee. Kentucky Republican Sen. Mitch McConnell responded that presidents are entitled to tilt the judiciary any way they see fit. “The president was elected, not the editorial board of The New York Times,” said McConnell, who has led the GOP in negotiating with Senate Majority Leader Thomas Daschle, D-S.D., over how the new Senate will be organized. For several weeks, those talks have sputtered over Republican demands that Democrats pledge to follow a century-old tradition to grant a full Senate vote on nominees to the Supreme Court, regardless of how the Judiciary Committee votes. Democrats have resisted codifying that tradition, but Judiciary Chairman Patrick Leahy, D-Vt., has agreed to another GOP demand: Forcing senators who use their privilege to block home-state nominees to make their opposition public. But why — and not how — senators oppose nominees was the subject of Schumer’s June 26 hearing, which featured a roster of star commentators. Schumer argued that senators should debate legal ideology with nominees instead of using small financial improprieties or other embarrassing personal details — “gotcha politics,” he called it — to disqualify judicial nominees. A pair of former presidential lawyers now at Wilmer, Cutler & Pickering — Jimmy Carter and Bill Clinton counsel Lloyd Cutler and George Bush counsel C. Boyden Gray — disagreed. Putting ideology front and center, argued Gray, would suggest to the public that “law is just politics by other means.” But Laurence Tribe, the Harvard law professor who argued on behalf of presidential candidate Al Gore in the first election case at the Supreme Court last year, said ideology has always been — and should be — a consideration in the nomination and confirmation process. All panelists and senators agreed that nominees should not discuss how they would vote in pending cases, but Schumer argued that there would be nothing wrong with exploring what nominees thought of established decisions. A conservative panelist, Clint Bolick of the Institute for Justice, countered that Schumer’s strategy would improperly compel candidates to prejudge a case before it comes before them. He pointed out that the Supreme Court’s 25-year-old decision in Buckley v. Valeo is still a major factor in campaign finance law. If a nominee prejudged that issue before the Senate Judiciary Committee, said Bolick, “I’d do a recusal motion.” Along those lines, Tribe urged senators to ask how nominees would decide whether to strike down acts of Congress, as opposed to pegging their questions to particular cases and controversies. He noted with criticism that a conservative majority on the Supreme Court has struck down more than a dozen federal laws in recent years. “Vigilance is called for,” Tribe added, to balance the Court. The following are excerpts from the written testimony submitted by witnesses at the June 26 hearing: C. Boyden Gray: If the goal of today’s hearing is to answer the question, “Should ideology matter?” I can answer in one word: no. The only legitimate question on this subject — from the White House, the Senate, the Judiciary Committee, or an individual senator — pertains to the proper constitutional role of a federal judge. The question is very simple: “What is the proper role of the federal judge, or of the federal judiciary?” If the nominee’s answer is “to interpret and apply the law,” or words to that effect, then you have a nominee who understands the limited role of a judge. If, on the other hand, a nominee views the judiciary as a vehicle for favoring particular interest groups or particular outcomes, then the nominee is unfit to be a judge and should consider running for legislative office instead. Historically, judicial nominees have not been asked about their views. There simply were no hearings on judicial nominees until 1925. Even then, the hearings were perfunctory affairs for decades. When Byron White was nominated to the Supreme Court in 1962, the Judiciary Committee asked him eight questions and the hearing lasted 15 minutes. In 1981, Sen. Kennedy defended Sandra Day O’Connor’s refusal to answer questions about her views on abortion. He said, “It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy.” As I said earlier, I think there is one legitimate test of judicial philosophy. But if the Senate — or the White House — asks overly specific questions, they threaten the independence of the federal judiciary by seeking advance commitments to rule certain ways in particular cases. Laurence Tribe: Some might be tempted, after watching the Court perform so poorly in the pit of presidential politics, and after witnessing it substitute its policy judgments for those of Congress in one legislative arena after another, to imagine that, if we could only wave a magic wand and remove all ideological considerations from judicial selection — both on the part of the president in making nominations and on the part of the Senate in the confirmation process — somehow the Olympian ideal of a federal judiciary once again above politics and beyond partisan reproach could be restored. For several reasons, this is a dangerous illusion. First, there’s no way for the Senate to prevent the president from doing what presidents from the beginning of the republic have asserted the right to do, and what some presidents have done more successfully than others: Pick nominees who will mirror the president’s preferred approach to the Constitution’s vast areas of ambiguity. Second, in dealing with those areas of ambiguity, there may or may not be any right answers, but there most assuredly are no unique or uncontroversial answers; invariably, in choosing one Supreme Court nominee rather than another, one is making a choice among those answers, and among the approaches that generate them. And third, with a Supreme Court that is already so dramatically tilted in a rightward direction, anything less than a concerted effort to set the balance straight would mean perpetuating the imbalance that gave us not only Bush v. Gore but the myriad decisions in the preceding half-dozen years in which the Court thumbed its nose at Congress and thus the American people.

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