November 5, 2003
By Brian C. Anderson
Everyone has commented on the unprecedented filibuster campaign against President Bush's appellate court nominees -- the latest of whom is likely to be Janice Brown, a black veteran of California's Supreme Court. What hasn't sufficiently been underscored is that the filibusters rest on a novel jurisprudential conceit: call it "Schumerism," after Chuck Schumer, the New York senator who is its most strident proponent.
Schumerism has wrought incalculable damage to our political fabric. For two years, Sen. Schumer has waged a campaign to subvert the criteria by which the Senate ratifies presidential judicial picks. For much of American history, the Senate, in its confirmation of judges, has relied on principles laid down by Alexander Hamilton in The Federalist: integrity, intelligence and temperament, and faithfulness to the rule of law -- terms on which President Bush's picks, Ms. Brown included, pass with high marks. But instead of Hamiltonian standards, Mr. Schumer insists that senators must make a judge's "ideology" their principal concern. By this he means the judge's private political opinions, as well as the political results his decisions have led to in past cases and could lead to in the future. Judges whose views on affirmative action and abortion are outside the "mainstream" should be disqualified from sitting on the federal bench, regardless of competence. As for the definition of "mainstream," Schumerism simply holds that conservative are, ipso facto, "extremist."
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Schumerism is now the regnant jurisprudential philosophy among Senate Democrats. Indeed, a candidate for the Democratic presidential nomination, John Kerry, has said he'll filibuster any Supreme Court nominees who wouldn't uphold abortion rights or "laws protecting workers and the environment." This partisanship goes beyond anything the Democrats have asserted in earlier judicial battles. In defeating the Supreme Court nomination of Robert Bork and in trying to defeat Clarence Thomas, the Democrats still felt constrained by Senate tradition to argue against confirmation primarily on grounds of temperament and integrity.
No longer. They justify the filibuster of Priscilla Owen because she argued in one case that parents should play a role in the decision-making process for their minor daughter's quest for an abortion. Most Americans support parental notification laws for abortion; yet any judge willing to contemplate any limitation on abortion at any time is a "right-wing extremist." Miguel Estrada was filibusterable because he's reputed to be conservative in his political views (as if many Americans didn't share similar values). And in justifying opposition to Ms. Brown, Mr. Schumer described her as an "out-of-the-mainstream activist of the first order," even though she won nearly 80% of the vote in her last election and frequently writes the majority opinion in California Supreme Court decisions. She has drawn the ire of Democrats above all for her willingness to uphold California's Proposition 209, in which state voters halted group preferences and racial quotas.
For decades, liberals have happily watched an activist judiciary twist the Constitution to make it produce "progressive" policy outcomes -- from affirmative action to partial-birth abortion -- that the left never could have won from voters. Liberals have defended the judiciary's expansive policymaking by saying that it simply grew out of a "Living Constitution" -- a document whose principles, interpreted by wise judges (i.e. those with a "progressive" world view), could adapt to the needs of every era. Conservatives have lamented this trend toward legislating from the bench; they want the courts restored to some semblance of what the Framers intended courts to be -- neutral referees, applying the law not creating it. The conservative jurisprudence of "originalism," favored by Bush judicial appointees, directs judges to stick to the Constitution as the Framers understood it, and to read statutes to mean what they say. Originalists believe that legal texts have a limited range of meaning, which can be rightly or wrongly glossed. The prospect of an originalist bench depoliticizing the law gives the left nightmares, since it could sweep away some court-mandated liberal policy gains as unconstitutional.
So Schumerists have trained their fire on originalism. They argue that all approaches to law are at bottom a matter of power politics. The originalists might claim to be faithful to legal texts, but that's a delusion: Judicial interpretation is unavoidably "ideological." What the Bush judges, like all judges, are really up to, Schumerism avers, is construing the law so that it produces their favored policies. And since what's at stake is momentous -- abortion, affirmative action, vouchers -- and since judging is just a form of politics, Schumerism licenses the use of any means necessary to retain a liberal judiciary. This includes calling Bush nominees "extremist right-wing ideologues" out to "attack working families"; denouncing originalists as "right-wing judicial activists"; smearing nominees as closet bigots; trying to create by filibuster a new super-majority requirement for judicial confirmations; and proposing, as Sen. Schumer has done, to take away the president's constitutional power to select judges and turn it over to state committees, equally divided between Democrats and Republicans, making impossible the appointment of a judge unacceptable to Democrats.
Republican efforts to defeat the filibusters have, alas, fizzled. Senate Majority Leader Bill Frist and 10 other senators had proposed a change to Senate rules on filibustering judicial nominations that would gradually lower the votes required to end a filibuster; but changing rules requires at least 67 votes, making Democratic resistance impossible to get around. The best course for the GOP may be to use the filibuster debacle and take their case to the public in the next election. Sen. John Cornyn, who chairs the Judiciary Committee's subcommittee on the Constitution, says that "it may take an intervening election," bringing a bigger Republican majority, to resolve the judicial crisis.
There's good reason to think that the filibusters could hurt the Democrats' chances for retaking the Senate in 2004. With more than half of next year's 34 contested Senate seats currently held by Democrats, and the Dems confident of holding only nine of those, the GOP may be able to build a filibuster-proof majority and restore sanity to the judiciary, right up to the Supreme Court. The biggest gain of all, however, would be the death of Schumerism.
Mr. Anderson is senior editor of City Journal.
©2003 Wall Street Journal
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