- The Washington Times - Monday, July 4, 2005

Senate Democrats said yesterday that they will demand to know the political views of any nominee President Bush names to replace retiring Supreme Court Justice Sandra Day O’Connor.

“I think the number one thing that I am interested in are the nominee’s views,” Sen. Charles E. Schumer, New York Democrat and Senate Judiciary Committee member, said yesterday on ABC’s “This Week.”

Such questions will ensure acrimonious confirmation hearings and conservatives have long argued that such questions — political “litmus tests,” they call them — are improper and undermine the independence of the federal judiciary.

Democrats also warned Mr. Bush to pick a “consensus” or a “moderate conservative” nominee — a far cry from Mr. Bush’s re-election campaign pledge to name a conservative to the high court similar to sitting Supreme Court Justices Antonin Scalia and Clarence Thomas.

Sen. Edward M. Kennedy, Massachusetts Democrat, defended his 1987 decision to attack then-federal Judge Robert H. Bork based on his political views, including the famous “Robert Bork’s America” speech on the Senate floor. And he said he would do the same thing if Mr. Bush sends an similarly conservative nominee to replace Justice O’Connor.



“When the president sent Robert Bork to the Senate Judiciary Committee for nomination … it was very clear that he was selected primarily because of his judicial philosophy,” Mr. Kennedy said on ABC. “They made it, really, an issue there, and it became the issue before the Judiciary Committee and the country.”

“Again, this is up to the president,” he said. “If he wants to pick a judge, we want to be able to support him, but if he wants to have a fight about it, then that’s going to be the case.”

The notion of picking apart a nominee to the federal bench based on his personal opinions about political matters is out of bounds, conservatives say.

“It’s asking them to basically run on a political platform,” Sen. John Cornyn, Texas Republican, responded to Mr. Schumer yesterday.

Mr. Cornyn said it’s fine to ask a nominee to opine on a settled case, but asking about the merits of such issues as abortion or affirmative action is akin to requiring nominees to “make promises to politicians about how they’re going to vote should a case come before them.”

Mr. Schumer said “the courts have been the protectors of individual rights since the Republic was founded” and it would be wrong “to put someone on the bench when you know nothing about their views on civil rights, on women’s rights, on environmental rights and on everything else.”

Another Judiciary Committee Democrat said his colleagues will filibuster a nominee they deem unacceptable.

Sen. Joseph R. Biden Jr. of Delaware, a former panel chairman, said on CBS’ “Face the Nation” that while he personally has “no intention of filibustering anybody,” that the nomination of someone like Judge Janice Rogers Brown “would be a very, very, very difficult fight, and she probably would be filibustered.”

Judge Brown, a former California state Supreme Court justice who now sits on the U.S. Court of Appeals for the D.C. Circuit, was recently confirmed after being filibustered for nearly two years.

Her confirmation last month was part of a deal struck in May that ended several filibusters. In exchange for Democrats’ dropping the filibusters, several Republicans agreed not to support the so-called “nuclear option” to ban such judicial filibusters.

But Republicans who signed onto the deal have said that if Democrats abuse the judicial filibuster by using it in cases other than “extraordinary circumstances,” then they will support the nuclear option.

Sen. Lindsey Graham, South Carolina Republican and Judiciary Committee member, said on “Fox News Sunday” that merely nominating Judge Brown or any ideologically conservative nominee — would not constitute the “extraordinary circumstances” under which the deal allows a filibuster.

“To me, it would have to be a character problem, an ethics problem, some allegation about their qualifications of the person,” said Mr. Graham, one of the signers of the deal. “Not an ideological bent, given what we’ve done in the past.”

Added Senate Majority Whip Mitch McConnell of Kentucky: “I think there is every expectation, every reason to believe that there will be no successful filibuster. You know, virtually any reasonable nominee.”

“All options are still on the table, obviously, but we don’t think a filibuster can be sustained,” he said on Fox.

As far as consultation is concerned, Mr. Bush appears to be off on the right foot, according to Sen. Patrick J. Leahy of Vermont, ranking Democrat on the Judiciary Committee.

“I’ve advised the president,” he said on NBC’s “Meet the Press.” “I won’t go into the details of the private conversation, but parts of things I’ve said publicly before: Get somebody who will unite the country, not divide the country.”

But on CNN yesterday, Judge Bork said that the president should not aim for political compromise.

“If Bush does that, he will, I think, have neglected his duty,” he said. “His duty is to find somebody who will make a fine judge, not someone who is a compromise candidate with Teddy Kennedy.”

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