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Jewish World Review July 10, 2001 / 19 Tamuz 5761

Morton Kondracke

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High Court vetting will be ideological, but that isn't good -- ON the one hand, Sen. Charles Schumer (D-N.Y.) is just telling the truth when he says that ideology plays a part in Senate judgment of Supreme Court nominees. On the other hand, he's helping to make it the dominant part.

Schumer has served notice that ideology will be the major factor that the newly Democratic Senate will use to decide the confirmation of President Bush's High Court nominees.

Well, we knew that, didn't we? Democrats aren't about to confirm more conservatives like Bush's declared favorites, super-strict constructionist conservatives Antonin Scalia and Clarence Thomas.

It's useful and honest to get this reality on the table. There's also some justification for Democrats to deny Bush the option to swell the court's conservative bloc into a decisive majority when the country is ideologically split down the middle.

Before Schumer uttered a word, it was virtually certain that Bush would have to find a moderate, a cipher or a Senator to be his first nominee -- the likeliest possibility being Sen. Orrin Hatch (R-Utah).

Though Hatch's decision to back federal funding of embryonic stem-cell research was made as a matter of conscience, it will undoubtedly help his confirmation prospects by making it clear he's reasonable in his pro-life views.

The problem with Schumer declaring that ideological vetting is legitimate is that he is practically guaranteeing that it will be the primary basis for judging nominees in the foreseeable future.

After Democrats put Bush's nominees through a political grinder, Republicans will do the same when they take control of the Senate again. And, sooner or later, they will.

For nearly two decades now, both parties in Congress have been demonstrating the axiom "What goes around, comes around," producing a downward spiral of political vengefulness that Bush hasn't begun to alter.

On judicial nominees, Republicans on the whole have been far less ideological -- or ruthless -- in handling Democratic selections than Democrats have been toward Republicans.

Republicans did block many of President Bill Clinton's second-term appellate court nominees, but they confirmed both of his Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer, and with a minimum of fuss, despite that they are pro-choice liberals. Ginsburg was a counsel for the American Civil Liberties Union.

Democrats, on the other hand, have established a tradition of "Borking" Republican nominees. They actually began the practice well before they savaged and defeated Appeals Court Judge Robert Bork in 1987.

It happened first in 1969, when Democrats on the Senate Judiciary Committee and their allies in the AFL-CIO and the NAACP shredded Nixon nominee Clement Haynsworth's reputation, making him out to be a racist and union-buster.

After his defeat, Haynsworth continued serving with distinction on the 4th U.S. Circuit Court of Appeals, for 17 years as chief judge.

Bork, who contributed to his own demise by appearing to lack judicial temperament, was denounced in memorable, demagogic terms by the lead Democratic ideologue on the Judiciary Committee, Sen. Edward Kennedy (Mass.).

"Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters and school children could not be taught about evolution," Kennedy famously declared.

As NBC's Tim Russert recalled last Sunday, citing a recent Roll Call story, Kennedy similarly denounced a current colleague, Sen. Jeff Sessions (R-Ala.), when Sessions was a District Court nominee in 1986.

"Mr. Sessions is a throwback to a shameful era which I know both black and white Americans thought was in our past," Kennedy said then. "It's inconceivable to me that a person of his attitude is qualified to be a U.S. attorney, let alone a federal judge."

And then, of course, there was the Clarence Thomas epic, in which Democrats subjected the current justice to a public inquisition about alleged sexual harassment -- and not very serious harassment, certainly by Clinton standards -- when opposition was really based on ideology.

What Schumer promises is that, instead of playing ethical "gotcha," Democrats from now on will forthrightly consider a nominee based on his or her views.

They will ask, and expect answers, to questions about judicial philosophy, he says, and about abortion, privacy, gun control, campaign finance and federalism.

It's nothing new for judiciary members to pepper Supreme Court nominees with questions on issues bound to come before the court. But wise nominees have ducked answering and generally have been allowed to do so. As Democratic attorney Lloyd Cutler warned Schumer's subcommittee, "to make ideology an issue in the confirmation process is to suggest that the legal process should be a political process. That is not only wrong as a matter of political science, it also serves to weaken public confidence in the courts."

It used to be that judicial nominees were vetted primarily for their learnedness, temperament, fairness and self-restraint. Those days are gone, as Schumer is saying. But he's not helping bring them back.

JWR contributor Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill. Send your comments by clicking here.

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