Judges’ political ideologies have grown increasingly important in the battle over Supreme Court justices, and one of the biggest reasons is Sen. Charles E. Schumer.
Over the past two decades, the New Yorker has argued that senators should peer beyond a nominee’s legal credentials to try to figure out his or her ideological leanings and that the Senate should strive to preserve ideological balance on the court.
Now, as the Senate Democrats’ floor leader, he is poised to be the biggest hurdle between Judge Neil Gorsuch and the Supreme Court.
After meeting with the judge last week, Mr. Schumer emerged to say he was disappointed. Judge Gorsuch dropped no hints on how he would rule on big cases, or even big issues, despite Mr. Schumer’s prodding.
“Judge Gorsuch must be far more specific in his answers to straightforward questions about his judicial philosophy and opinions on previous cases. He owes it to the American people to provide an inkling of what kind of justice he would be,” Mr. Schumer wrote in a New York Times op-ed after the meeting.
Such a demand would have shocked senators several decades ago, when the major questions were over legal credentials, judicial temperament and fidelity to the law.
But as big battles are elevated to the court, the fight over the nine justices with final say on those matters has intensified.
Mr. Schumer outlined his philosophy in 2001, using his position as chairman of a Senate Judiciary subcommittee to hold a hearing looking at what role ideology should play in confirmations. He declared that it “often plays a significant role.”
The senator said his goal was to preserve a legal “mainstream” and to weed out judges he thought fell outside of that — those he said who “have been selected in an attempt to further tilt the courts in an ideological direction.”
Republicans said that was a break with decades of practice.
“Fundamentally, the Senate’s responsibility to provide advice and consent does not include an ideological litmus test because a nominee’s personal opinions are largely irrelevant so long as the nominee can set those opinions aside and follow the law fairly and impartially as a judge,” said Sen. Orrin G. Hatch, Utah Republican.
In 2007, after the confirmations of Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., both appointments of President George W. Bush, Mr. Schumer said the court had fallen “dangerously out of balance.”
He now says he felt particularly betrayed by Chief Justice Roberts. Even though he didn’t vote for confirmation, Mr. Schumer said, the judge misled the country in his hearing, promising to be a straight-shooter. Once on the court, though, Mr. Schumer said, the chief justice tacked to the right.
Mr. Schumer said he is worried that Judge Gorsuch will do the same thing, which is why he wants the judge to expose his ideology.
Senate Majority Leader Mitch McConnell, Kentucky Republican, said Mr. Schumer is enforcing a “double standard.” He said Justice Ruth Bader Ginsburg, a nominee of President Clinton, declined to explain her thoughts on hot-button issues, and most of the nominees since followed what became known as the “Ginsburg standard.”
“But the far left has been pushing him and other Senate Democrats to oppose anyone whom the president nominates to the Supreme Court. So the ’Ginsburg standard’ has given way to the double standard,” Mr. McConnell said.
Mr. Schumer also has pioneered a theory of balance on the high court, saying a conservative should not replace a liberal justice because it would tilt the bench.
Last year, when President Obama picked Judge Merrick Garland to fill the seat of the late Justice Antonin Scalia, Republican senators used that philosophy against Mr. Schumer. They said replacing Scalia, the court’s leading conservative, with a liberal would break the sense of balance that Mr. Schumer advocated.
Now, conservatives say Judge Gorsuch is a fitting replacement for Scalia.
Sen. Mike Lee, a Utah Republican who sits on the Senate Judiciary Committee, said Mr. Schumer’s philosophy is more about liberal tilt than about balance.
“They really like having the courts — and the Supreme Court in particular — playing a pretty central role in major questions of public policy, deciding major disputes that ordinarily would be otherwise decided in the political branches of government, either at the state level or through a combination of Congress and the White House,” Mr. Lee told The Washington Times.
Carrie Severino, chief counsel at the conservative Judicial Crisis Network, said Mr. Schumer is making excuses to oppose the judge.
“Sen. Schumer’s standards change every five minutes because they’re purely political. There’s no principle behind it,” Ms. Severino said.
Asked about Mr. Schumer’s ideology test, his office referred to the senator’s New York Times op-ed, where he said he was duped by then-Judge Roberts, who went on to lead the court in rulings on campaign finance and voting rights that Democrats protested.
“The overarching lesson of Chief Justice Roberts can be summed up in a familiar phrase: Fool me once, shame on them; fool me twice, shame on me,” Mr. Schumer wrote.
Dan Goldberg, legal director at the liberal Alliance for Justice, said Mr. Schumer’s goal is a judge who represents Americans’ “constitutional values.”
“Quite frankly, his entire career — but particularly now — Chuck Schumer has recognized the importance of the courts and protecting constitutional values and critical legal protections. It’s something he’s fought for his entire career,” Mr. Goldberg said.
Analysts said Mr. Schumer is using his standards to try to shape the court.
“Sen. Schumer is a shrewd and aggressive liberal senator,” said David K. Rehr, senior associate dean at George Mason University’s Antonin Scalia Law School. “What he really wants to do, I believe, is to push his own ideological view of the Constitution in an effort to sway who might be selected or how the committee might vote on a particular individual.”
Senate Majority Whip John Cornyn, Texas Republican, told The Washington Times that he hopes Mr. Schumer doesn’t attempt to block Judge Gorsuch’s confirmation as he has tried to do with Mr. Trump’s other Cabinet picks.
“He’s probably got the toughest job in Washington, D.C., having to appease the Elizabeth Warren and Bernie Sanders wing of the Democratic Party, so I understand the challenges he’s got,” said Mr. Cornyn.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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