- The Washington Times - Wednesday, June 27, 2001

Senate Democrats yesterday said they would "openly examine ideology" in their consideration of President Bush's judicial nominees after years of complaining about conservatives applying "litmus tests" to President Clinton's nominees.
Several Democrats on the Senate Judiciary Committee said, during hearings on the judicial-confirmation process, that ideology should be a qualification for office, words that Republicans called a thinly disguised partisan effort to block conservative candidates.
The Senate is justified in opposing judicial nominees "whose views fall outside the mainstream and who have been selected in an attempt to further tilt the courts in an ideological direction," said Sen. Charles E. Schumer, the panel's chairman.
"Unfortunately, this unwillingness to openly examine ideology has sometimes led senators who oppose a nominee to seek out nonideological disqualifying factors, like small financial improprieties from long ago to justify their opposition," the New York Democrat added.
"This in turn has led to an escalating war of 'gotcha' politics that has warped the Senate's confirmation process and harmed the Senate's reputation," Mr. Schumer said.
Republicans called such "litmus tests" an "aggressive assault on Bush's nominees" to block qualified candidates for political purposes.
"It is an unwise and dangerous thing for the Senate to change the way we evaluate judges and it undermines the confidence the American people have in the law," said Sen. Jeff Sessions, Alabama Republican and ranking member of the Judiciary Committee.
Sen. Jon Kyl, Arizona Republican, said the hearings let Democrats lay the groundwork for blanket opposition of Mr. Bush's nominations "purely on political grounds" and will create a "confirmation collision."
"You can't change 200 years of history without laying the foundation for it, and this is what it's all about," Mr. Kyl said. "They are very brazen about it."
Mr. Schumer said Republicans are being "defensive" about the reviews, which he said are not litmus tests, but a "thorough examination" of ideology.
"We should enter into discussions and evaluations, but that does not equal litmus testing," Mr. Schumer said.
The New Yorker's words yesterday were echoed by his party's leader in the Senate, Majority Leader Tom Daschle, who said "extremists" need not apply.
"We would ideally like to have people from the mainstream, center right or center left, but from the mainstream," the South Dakota Democrat said.
Mr. Schumer said the reviews will bring ideological balance to the federal courts, but Mr. Kyl said Democrats are applying "a hypocritical definition."
"This is pretty bogus," Mr. Kyl said.
Specifically, Rep. Christopher Cox, a conservative California Republican and one-time judicial contender to the 9th U.S. Circuit Court of Appeals, removed his name from consideration after liberal Democrats signaled his confirmation was unlikely.
But during the Clinton administration, Democrats attacked Republicans for blocking qualified nominees on ideological grounds:
In 1995, President Clinton accused Republicans of "pandering" to pro-life voters for opposing Dr. Henry Foster's appointment as surgeon general.
"A small minority are using this nomination to dictate a litmus test to the rest of America," he said. "That is wrong."
In 1997, Attorney General Janet Reno attacked critics of Bill Lann Lee, the administration's choice to head the Justice Department's civil rights division, as engaging in an ideological assault on a "qualified" nominee.
"No one denies that Bill Lann Lee is more than qualified for the job," Miss Reno said. "Others say he should be rejected because he shares the views of the president on affirmative action. I say 'no' to that, and so does the president."
In 1999, Republicans who opposed the nomination of Missouri Judge Ronnie White to the federal bench because of his death-penalty decisions were called racists.
"Those in the Senate who seek to railroad this process with a litmus test for color and race are undermining the Constitution," said Rep. James E. Clyburn, South Carolina Democrat and chairman of the Congressional Black Caucus.
The timing of the hearing also raised eyebrows among key Republicans still negotiating the reorganization of the Senate under new leadership. Democrats took control of the Senate three weeks ago.
Republicans want assurances nominees will get a full Senate vote, and the elimination of "blue slips" that allow secret vetoes. Yesterday's hearing validated their concerns that conservative candidates will be cast aside.
"We suspect their goal is to quietly bury nominees in committee," said Sen. Mitch McConnell, Kentucky Republican.
Sen. Trent Lott, minority leader and Mississippi Republican, said nominees historically are evaluated by their legal experience and temperament.
"The Democrats seem to be reversing 200 years of precedent by imposing narrow litmus tests on all federal judicial nominees," Mr. Lott said.
"By imposing what amounts to political litmus-testing requiring nominees to be card-carrying members of their party, the Democrats want to pre-ordain the outcome of every issue that will come before the courts and rewrite the Constitution as well," Mr. Lott said.
Democrats say they need to examine ideology because of statements Mr. Bush made during the presidential campaign that he admires Supreme Court Justices Antonin Scalia and Clarence Thomas, both pro-life.
During last year's campaign, former Vice President Al Gore called the admiration "code words" that Mr. Bush would appoint judges to overturn Roe v. Wade.
However, Mr. Bush said he would not use a litmus test to appoint pro-life judges, but supported legislation outlawing partial-birth abortion.
"I don't believe in liberal, activist judges. I believe in strict constructionists, and those are the kind of judges I will appoint," Mr. Bush said during the campaign.
Mr. Bush has nominated more than 20 judges to fill 107 vacancies in federal courts, but no Senate hearings have been scheduled.

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