WASHINGTON -- Democratic Sens. Charles Schumer of New York and Dianne Feinstein of California had tried to hide their frustration while questioning Judge John G. Roberts Jr. for the second time last week. But once the confirmation hearing ended, they betrayed their emotions in the confines of a Russell Senate Office Building elevator, oblivious to who was overhearing them. The two senators bitterly complained Roberts simply was not answering their questions.
Feinstein sounded like a sympathetic sidekick, but this was more serious for Schumer -- a crushing defeat in his campaign to establish a new standard for confirmation of Supreme Court nominees. Ever since George W. Bush's election, Schumer has been planning how to force nominees to take broad policy positions. In his elevator conversation with Feinstein, Schumer grumbled that Roberts was getting away with incorrectly claiming he was following precedent set by liberal Justice Ruth Bader Ginsburg in her confirmation hearing (though in private conversation last week, Ginsburg disagreed with Schumer).
Schumer may be the Senate Judiciary Committee's best lawyer, but Roberts is an even a better one. "If this were a fight, the referee would have stopped it," Republican Sen. Lindsey Graham told me in assessing the Schumer vs. Roberts confrontation. Beyond their legal duel, the outcome should set a new standard for Supreme Court confirmations. It is unlikely any future nominee can be drawn into an inquest of their policy positions.
A relatively junior senator just beginning his second term, Schumer has been out front seeking to determine who will serve on the Supreme Court. Four years ago, he propounded an issues test and has not deviated in assessing nominees for lower federal courts. Schumer has been against confirmation of every Bush appointee with any significant opposition. He opposed cloture on all 16 nominees blocked by filibuster, and said "no" on all eight brought to a vote.
Sen. Edward M. Kennedy, who restrained himself from unleashing the unbridled invective hurled at Robert Bork two decades ago, was ineffective as he questioned Roberts's devotion to civil rights. Sen. Joseph Biden blustered into incoherence, railing against the nominee's calm. Schumer, in contrast, reflected years of planning as he told Roberts "the American people . . . need to understand that your first-class education and your advantaged life will not blind you to live the plight of those who need help." More specifically, Schumer wanted Roberts to pledge support from the bench for "the environment, Americans' health and workers' civil rights."
Both Biden and Schumer would have turned judicial nominees into political candidates, who would then gain overwhelming support for confirmation by endorsing a liberal laundry list. Roberts responded to Biden that judges "decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed."
Roberts has won the argument. Law writer Stuart Taylor Jr., in an Aug. 1 Legal Times article, indicated he had changed his mind and now felt that if Democrats "ever succeed in forcing nominees to detail their views, it will not only corrupt the integrity and independence of new justices. It will also, perhaps, open the way for presidents to pack the court with people who have virtually pledged their votes on a long list of issues." Taylor cited the position by Laurence Silberman, a senior judge on the District of Columbia Circuit Court, that every case must be tried on its merits and weighed against the Constitution rather than decided on broad considerations of social philosophy. That is precisely the standard put forth repeatedly by Roberts.
In response, the Democrats have so hardened their posture that a unanimous Judiciary Committee vote by them against Roberts is probable. In the full Senate, the most that Roberts can hope for is probably eight Democrats, or 63 total votes.
Schumer said at the beginning of the hearing he would accept Roberts as a "mainstream conservative" but not an "ideologue." Is Roberts more of an ideologue than Justice Antonin Scalia, who was confirmed with 98 votes? Is Roberts more of an ideologue than former American Civil Liberties Union (ACLU) general counsel Ginsburg, who got 96 votes? Chuck Schumer did not make his case.