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Truth and Justice

Chuck Schumer has bravely introduced -- gasp! -- honesty into the judicial-confirmation process. John McCain warned him he'd pay for it. Just wait until the fall.

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Another one to file away in the so-much-for-conventional-wisdom bin: Remember last year, while Hillary was running, how people used to say -- usually with that chest-puffing self-regard that virtually guarantees that what's being said will be proved wrong -- that the last thing Chuck Schumer wanted was Hillary Clinton in the Senate, lest he be constantly upstaged?

This assurance depended on uncharitable assumptions about both politicians that have turned out to be wildly off the mark. The experts assumed that Schumer's undeniable taste for publicity meant that he would secretly be hankering for Hillary to lose; as it happened, Schumer campaigned hard for her and has worked closely with her on mass-transit funding and many other issues. With respect to Hillary, the assumption was that she was so power-mad and publicity-hungry that her comportment toward Schumer would make Anne Baxter's treatment of Bette Davis in All About Eve look like charity.

Well, Hillary hasn't sabotaged her more seasoned colleague yet, and Schumer, as anyone who knows him should have foreseen, is holding his own just fine. Hardly a week has gone by since January that he hasn't been in the papers, proposing this solution to spiraling gasoline prices or that one to high airfares. They've been good, solid, constituent-service things. But they have not been the kinds of things that would swell the breasts of New Yorkers who are chauvinistic about the legacies of Wagner and Javits and Moynihan.

Until now.

Quietly last week, the Senate Judiciary Committee began consideration of W.'s first round of judicial nominees. The first one is Roger Gregory, an African-American whom Bill Clinton named temporarily to Richmond's Fourth Circuit and whom Bush has renominated. He is uncontroversial, but the same is hardly true of nominees like former Scalia law clerk Jeffrey Sutton and Miguel Estrada, a partner in the firm of Solicitor General Ted Olson. The federal-courts subcommittee that Schumer chairs will probably start in on those nominations in September.

But already, Schumer has changed the rules by which these nominees will be judged. With a piece he published in the Times on June 26 in which he argued that a nominee's ideology is a legitimate area of inquiry, and through the subsequent round of debate that article sparked, Schumer has brought some honesty to a process that's been corrupted beyond anything that James Madison or even Dwight Eisenhower would recognize.

"The not-so-dirty little secret of the Senate," Schumer wrote in the Times, "is that we do consider ideology, but privately. Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago."

It's obvious to anyone who has watched the process deteriorate over the years that truer words were never written. And yet, because saying what's true is usually a bad idea in politics, Schumer has taken a lot of heat. "John McCain pulled me over after the article ran," Schumer says, "and he said to me, 'Don't do this; you'll become a target for the hard right just like I am.' " And of course it has happened -- Paul Gigot in the Wall Street Journal, a New York Post editorial, Lawrence Kudlow on McLaughlin, a few of the other televised hyenas.

Their arguments have depended on two strategies, one a distortion and the other an outright lie. The former, advanced on the McLaughlin show, was that Schumer has proposed an ideological "litmus test" for judges. He did nothing of the sort, and in fact wrote that the importance the Senate places on a nominee's ideology should vary according to how ideological the president's choice was in the first place and the composition of the courts at the time. If the president and the nominee signal at least some flexibility, Schumer says, the Senate should respond in kind.

The lie, of course, is that ideology has no place in the judicial process at all. In its editorial criticizing Schumer, the Post asked the following question: "Whatever happened to the notion of . . . apolitical judges?" Where do we start with that one? Perhaps with Clarence Thomas's confirmation hearing. Under questioning about his views on Roe v. Wade, Thomas was asked about his praise of a Heritage Foundation anti-abortion polemic that he had called "splendid." He answered that he had only skimmed it and was lauding it for other reasons. Asked about signing a White House Working Group on the Family report that pronounced Roe "fatally flawed," Thomas answered that he had never read it. Then there were Thomas's "I have no agenda," "I retain an open mind," etc., and his famous revelation under questioning from Pat Leahy that he'd never even discussed the case with another human being. All this was exposed, in Jane Mayer and Jill Abramson's book, Strange Justice, as a calculated strategy to keep his opposition to Roe under wraps. In other words, there was ideology in Thomas's nomination and in his hearing process. It's just that it remained hidden.

But Thomas succeeded, just as his conservative sponsors have succeeded in selling their cherished concept of "strict construction" as nonideological, when in fact, as Schumer says, "to say that strict construction is not an ideology doesn't pass the smell test." And here we sit, a decade after Thomas's confirmation, dealing with the aftermath of Bush v. Gore, a decision it is absolutely impossible to imagine the five majority justices having made had the parties in the suit been reversed. And that, Post, is what happened to the notion of apolitical judges.

It's been six years now since Chuck Schumer has been a legislator in the majority party -- he was in the House of Representatives in 1995 when the Republicans took over that body, and his entire time in the Senate, until now, has been spent in the minority.

Since the Democrats took over the Senate, only a few have really stepped forward to lead the charge. Tom Daschle has been getting high marks as leader; John Edwards, with the patients' bill of rights, is upping his presidential-wannabe profile; Teddy is Teddy. Schumer has now identified the area in which he wants to make his mark. And it's worth pointing out that he could have chosen any number of easier paths. As McCain suggested to him, he will become a lightning rod for the right -- just wait until his subcommittee takes up the Estrada nomination. Skeptics will say Schumer did it just to get the attention, but I can't help but notice over his career that most of the time when he's gotten attention, he's also been doing the right thing.

E-mail: tomasky@aol.com


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