He may have lost the battle over Judge Neil Gorsuch, but Senate Minority Leader Charles E. Schumer appears to have won a bigger fight: making ideology the focus of Supreme Court nominations.
The New Yorker was the driving force behind Democrats’ filibuster Thursday of Judge Gorsuch and the chief reason why Republicans triggered the “nuclear option,” permanently defanging the filibuster as a weapon to block Supreme Court nominees.
It was the latest in a nearly 20-year crusade for Mr. Schumer to tilt the federal courts to the left, saying the battle for the judiciary is inherently about political values and if one party is winning, then the other is losing.
In this case, that meant Judge Gorsuch was a loss for the left.
“His record shows, far from being the kind of mainstream candidate for the Supreme Court that could earn 60 votes, he may very well turn out to be one of the most conservative justices on the bench,” Mr. Schumer said on the Senate floor.
Jim Manley, a longtime senior Senate aide who worked for Sens. Edward M. Kennedy and Harry Reid, said the trend was already toward ideology even without Mr. Schumer, but the fights over Judge Merrick Garland last year and now over Judge Gorsuch confirm that ideology is front and center.
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“It’s the triumph of ideology over the now quaint idea that a president deserves deference,” he said. “This is following the arc of the Senate and the political process as a whole, where norms and customs are being broken left and right.”
Hans von Spakovsky, a senior legal fellow at The Heritage Foundation, said Republicans have no choice but to follow suit. If the positions had been reversed, he said, he had no doubt that Democrats would have triggered the nuclear option.
In that respect, Mr. Schumer will have received the answer he wanted in 2001 when he began his crusade to make ideology an explicit part of the confirmation process.
As a first-term senator serving as chairman of his first subcommittee, a panel overseeing the federal courts, Mr. Schumer called a hearing to promote ideology in judicial selection.
“For one reason or another, examining the ideologies of judicial nominees has become something of a Senate taboo,” Mr. Schumer said in a New York Times op-ed the morning of the hearing. “The not-so-dirty little secret of the Senate is that we do consider ideology, but privately.”
He said the more a president relied on ideology to nominate a judge, the more the Senate should look at ideology in its confirmation process.
He would later lament that Democrats didn’t do more to focus on the ideology of John G. Roberts Jr. and Samuel A. Alito Jr. during the George W. Bush administration. He said his party missed a chance to swing the court toward the left.
It wasn’t for lack of trying, though. Mr. Schumer joined fellow Democrats in attempting to filibuster Justice Alito but fell short because not enough Democrats decided it was appropriate to block a high court nominee through a filibuster.
Supreme Court picks used to be much less contentious.
Justice Byron White’s confirmation hearing lasted just 90 minutes in 1962 and was confirmed on a voice vote. Indeed, voice votes were common through most of the 20th century.
That began to change in the 1960s and hit bottom in 1987, when President Reagan picked Judge Robert Bork to fill a vacant seat on the Supreme Court.
Within hours of the announcement, Sen. Edward M. Kennedy had delivered his “Robert Bork’s America” speech, accusing the conservative jurist of being an “extremist” ideologue who would reimpose segregation and ban the teaching of evolution. Judge Bork later faced nearly 30 hours of questions, nearly all of it focusing on his ideology.
In the end Mr. Kennedy led the Senate in rejecting the nomination on a 58-42 vote. Judge Bork became the only nominee in 45 years to be defeated on a floor vote.
A few years later came the contentious hearings for Justice Clarence Thomas, then a brief respite as Republicans put up little resistance to President Clinton’s two high court nominees.
By the time President George W. Bush took office in 2001, though, the process had deteriorated and Democrats — pushed by Mr. Schumer and Mr. Kennedy — were seeking major changes in the federal courts.
Some analysts credit Mr. Schumer with being the driving force behind Democrats’ unprecedented filibusters of Mr. Bush’s appeals court picks, with 10 nominees blocked from 2003 to 2005.
Republicans were so fed up that they invented the nuclear option as a way to overcome the filibuster — but didn’t pull the trigger, after a bipartisan group of senators struck a side deal to approve most of the nominees while avoiding a rules change.
Eight years later, after Republicans adopted Democrats’ filibuster tactics against President Obama’s appeals court nominees, Mr. Schumer and fellow Democratic leaders triggered the nuclear option, changing the rules for all executive branch picks and judicial nominations save for the high court.
Mr. Schumer said Thursday that both sides share blame but Republicans should shoulder more of it because the party’s presidents choose worse judges.
“We believe the Republican Party has been far more aggressive in the escalation of tactics and in the selection of extreme judicial candidates, while Democrats have tended to select judges closer to the middle,” he said.
Republicans laughed at that assertion.
“I would say to my friend from New York, few outside of Manhattan or San Francisco believe that Ruth Bader Ginsburg is in the mainstream but Neil Gorsuch is not,” said Majority Leader Mitch McConnell, Kentucky Republican.
Mr. Schumer now says he regrets helping trigger the nuclear option in 2013. He insisted that he didn’t want the changes to apply to Cabinet nominees and fought to ensure that they didn’t apply to the Supreme Court.
Mr. von Spakovsky, the Heritage Foundation scholar, said this year’s Supreme Court fight merely confirms that the Senate had long ago passed the tipping point. He blamed Democrats, who he said are intent on advancing their ideology through the courts at any cost.
“They don’t care about what’s the correct legal principle, what’s the correct constitutional principle in each of these cases. All they care about is that the law and the court precedent be such as to achieve the ideological and social goals that they have,” Mr. von Spakovsky said.
Mr. Manley, though, said it’s the Republican base that has driven the fight as the Supreme Court becomes more important in American government.
“It continues to be the end-all and the be-all for Republicans, not only on the Hill but for outside groups as well, who view it as a crucial part of their effort to remake America the way they want it, as it becomes a much more diverse place,” he said.
“For whatever reason, conservatives have taken the Supreme Court much more seriously than Democrats ever did,” he said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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