Senator Charles Schumer may not have stopped the nomination of Samuel Alito to the Supreme Court, but he is declaring a minor victory after the candidate’s confirmation hearings.
“The three-year tack I’ve been taking has been vindicated,” the Senator said, a few days after it became clear that his fellow Democrats had failed to stop—or even slow down—Judge Alito’s eventual elevation.
Mr. Schumer was referring to an argument he has been making in the Senate cloakroom, on op-ed pages and on the Senate floor. In his own words: “That ideology matters and is relevant and should be the point of the questioning the nominees.”
Vindication is in rather short supply among Democrats on the Senate Judiciary Committee. The abiding images of the hearing—Judge Alito’s wife in tears; Senator Joseph Biden of Delaware speaking pleasantly and interminably; Edward Kennedy, of all people, grilling the nominee about murky details of his past— didn’t simply fail to slow down Judge Alito’s ascent; they also failed to further the Democratic contention that President George W. Bush is using the federal judiciary to roll back the clock on any number of issues.
But Mr. Schumer didn’t make anyone cry. Indeed, he momentarily seemed to focus the hearings, as he had hoped, on what the Democrats and their pollsters believe to be the winning issue of abortion. But that was before discussions turned to Judge Alito’s mutual-fund manager and his membership in a conservative Princeton alumni group. Those issues swept all before them.
“I think the best way to beat Alito is not any game of gotcha, but rather showing how he does want to turn the direction of the courts,” Mr. Schumer said during the brief telephone interview on Jan. 17. “I think I did a pretty good job of showing that, and unfortunately the next day the focus shifted to these other things.”
In any case, with Republicans controlling the Senate and the White House, Democrats may never have had a chance of stopping Judge Alito.
“The script was in the can in advance,” said Stephen Gillers, a professor of law at New York University. “In a Senate run by Republicans, Alito was going to get confirmed as long as he held to Rule No. 1, namely smile and say nothing.”
But others argue that the senior Democrats on the committee—Mr. Kennedy, Mr. Biden and Pat Leahy—blew their chances with a combination of endless speechifying and focusing on details of Judge Alito’s past. By the time the three junior Democrats on the committee—Mr. Schumer, Russ Feingold and Richard Durbin—began asking Judge Alito (relatively) rapid-fire questions about ideology, the tone had been set.
“If Schumer, Durbin and Feingold had done all the questioning, I think maybe this guy would be in some trouble right now,” said a former Democratic Judiciary Committee staffer, who spoke on the condition of anonymity to avoid antagonizing the Senators.
“They asked questions that exposed who Alito was rather than giving speeches.”
In particular, Mr. Schumer grilled Judge Alito on the question of whether the right to abortion is, like other constitutional interpretations the judge had committed to, “settled law,” and seemed to demonstrate that Judge Alito is likely to vote to overrule Roe v. Wade.
Mr. Schumer declined to comment on the performance of his colleagues or on the strategy of questioning Judge Alito’s ethics in hearing a case involving a company managing his savings, an issue that the New York Senator didn’t raise. And there seemed to be no coherent strategy on the Democratic side of the panel. The New York Times reported that, according to Democratic aides, “there had been even less strategy than usual in trying to coordinate the questioning by the eight Democratic senators.”
But Mr. Schumer does seem to have moved the question of ideology to the center of the debate over the judiciary. When, in 2001, he held a hearing titled “Should Ideology Matter?”, he was mocked by Senate Republicans, whose answer to the question—except in the most trivial sense—was no.
But Mr. Schumer’s arguments, coupled with the conservative sabotage of the nomination of the insufficiently conservative Harriet Miers, have made questions about abortion, privacy and Presidential power respectable again—even if no more likely to get complete answers.
In questioning Judge Alito, Mr. Schumer cited “the Miers precedent.”
“Everyone now seems to agree that nominees should explain their judicial philosophy and ideology,” he said. “After so many of my friends across the aisle spoke so loudly about the obligation of nominees to testify candidly about their legal views and their judicial philosophy when the nominee was Harriet Miers, I hope we will not see a flip-flop now that the nominee is Sam Alito.”
Mr. Schumer’s philosophical approach isn’t the only way, of course, in which he differs from the more senior Democrats on his committee. There is also this sampling from his questioning:
SCHUMER: I do have to tell you, Judge, your refusal [to answer questions about abortion rights] I find troubling. And it’s sort [of] as if I asked a friend of mine 20 years ago—a friend of mine 20 years ago said to me, he said, “You know, I really can’t stand my mother-in-law.” And a few weeks ago I saw him and I said, “Do you still hate your mother-in-law?”
He said, “Well, I’m now married to her daughter for 21 years, not one year.”
I said, “No, no, no. Do you still hate your mother-in-law?”
And he said, “I can’t really comment.”
What do you think I’d think?
ALITO: Senator, I think ….
SCHUMER: Let me just move on. You have a very nice mother-in-law. I see her right here. And she seems like a very nice person. O.K.
ALITO: I have not changed my opinion of my mother-in-law.
SCHUMER: Good. I’m glad you haven’t.
ALITO: I can answer that question.
SCHUMER: She seems nice.
Mr. Schumer remains a junior Democrat on the Judiciary Committee. His attempt to change the terms of the debate (while adding a touch of the Borscht Belt) may have succeeded. But Judge Alito appears certain to be confirmed by the Judiciary Committee on Jan. 24, and to take over from Justice Sandra Day O’Connor not long after that. And what will Mr. Schumer have won?
Until they win back the Senate—or the White House—Democrats content themselves with small victories.
“It is cumulative,” Mr. Schumer said. “If, say, a [John Paul] Stevens or a [Ruth Bader] Ginsberg, God forbid, had to be replaced, it helps lay out a predicate.”