- The Washington Times - Tuesday, July 24, 2001

Today, Sen. Charles Schumer, New York Democrat, will convene a second Judiciary subcommittee session on how to delay or deny confirmation hearings to President Bush's nominees to the federal courts. Not, of course, that Mr. Schumer bills it that way. He favors loftier titles, such as last month's "Should Ideology Matter?: Judicial Nominations 2001," and today's "The Senate's Role in the Nomination and Confirmation Process: Whose Burden?" Whose burden, indeed. With several more of these seminar sessions in the works, Mr. Schumer and the Democrats are successfully turning the Judiciary Committee's summer session into one long, open-ended essay question, leaving Mr. Bush's 27 judicial nominees to hang on the answer.
In last month's opener, Mr. Schumer lay down what can only be described as an outrageous rationale for rejecting judicial nominees based on ideology; or, more specifically, for rejecting nominees for thinking beyond the "mainstream" the Democratic "mainstream," that is, particularly on political flash points such as abortion and race. Supported by Harvard's Lawrence Tribe, University of Chicago's Cass Sunstein and the National Women's Law Center's Marcia Greenberger the same three experts who, as National Review Online's Byron York noted, addressed a Democratic strategy session on the federal judiciary last spring Mr. Schumer has called for an open examination of every nominees' ideological beliefs, as though being appointed to the federal bench were tantamount to running for political office.
Notable resistance to such litmus-testing call it "Schumerism" came from no less than Lloyd Cutler, former White House counsel to the last two Democratic presidents. Reading from a 1996 study he worked on, Mr. Cutler said, "To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts."
At today's "Whose Burden?" hearing, Mr. Schumer is expected to make the case for shifting said "burden" of winning confirmation onto the nominee. Where senators traditionally have had to find good reason not to confirm a presidential pick, Schumerism would require that pick to offer senators good reason "good" ideology? to win their votes. This would seem to set adherence to ideology over fidelity to the law. The question is, why? Judges are not appointed to execute their political ideology; or, rather, they're not supposed to be. Indeed, the Constitution provides the mechanism by which legislators Mr. Schumer, for instance are duly elected for that task. Maybe a refresher course in civics would be just the thing for the subcommittee's next little get-together.

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