The One That Got Through…

Twenty-two minutes after President George W. Bush introduced Judge Samuel Alito as his nominee to the Supreme Court on Halloween

Twenty-two minutes after President George W. Bush introduced Judge Samuel Alito as his nominee to the Supreme Court on Halloween morning, New York Senator Charles Schumer declared war.

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In a statement e-mailed to reporters, Mr. Schumer declared it “sad that the President felt he had to pick a nominee likely to divide America,” and warned that “this controversial nominee, who would make the Court less diverse and far more conservative, will get very careful scrutiny.”

Later, as Washington woke up to the nomination, Mr. Schumer was the first Democratic Senator to face the press, his heavy reading glasses riding down his nose as he seemed to echo Senator Edward Kennedy’s famous warning, delivered in 1987, about Robert Bork. In Judge Bork’s America, Senator Kennedy said, “blacks would sit at segregated lunch counters.”

Mr. Schumer said the question of the moment was “whether [Judge Alito] would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.”

The remark raised another question: How had the combative Brooklyn Senator risen, without fanfare or official recognition, to be “the voice of the Democrats on judges,” in the words of Schumer ally Kate Michelman, a former president of the National Abortion Rights Action League?

On a Senate Judiciary Committee stacked with famous names, Mr. Schumer has emerged as the Democrats’ most prominent voice on what is, right now, the most important battle in Washington. That position allows him to step out of the giant shadow cast by his superstar colleague, Hillary Clinton, the would-be, may-be Presidential candidate. With his staunch opposition to conservative judges, his denunciation of “theocrats” and “economic royalists” in Mr. Bush’s coalition, and his media ubiquity, Mr. Schumer has become an unlikely champion of the Democratic left.

“He’s not going out looking for a fight, but when it’s appropriate that there’s a fight, that’s where the fact that he’s a Brooklyn guy really helps the party,” said Mr. Schumer’s former chief counsel, Jeff Berman.

This is a fight Mr. Schumer has been girding for since soon after Mr. Bush took office in 2001. That June, he wrote an op-ed in The New York Times attacking the “taboo” against “examining the ideologies of judicial nominees.”

“The not-so-dirty little secret of the Senate is that we do consider ideology, but privately,” he wrote, and called for Senators and judicial nominees to lay their ideological cards on the table.

With Judge Alito, Mr. Schumer is getting what he asked for. The judge has 15 years of opinions that include one in favor of a law requiring women to notify their husbands before seeking abortions, along with a broad record of rulings and a consensus about his intellectual qualifications.

So is Mr. Schumer satisfied? Well, not exactly.

“There are two steps here,” Mr. Schumer told The Observer in a telephone interview from his Senate office the evening of Judge Alito’s appointment, pausing occasionally to munch on a take-out Chinese dinner of steamed shrimp and vegetables on rice. “The first one is to get them to sit down and say what their views are. But that’s just a means to an end. Which is to have judges–and I have one criterion–who are mainstream.”

In becoming the Democratic voice on matters judicial, Mr. Schumer started with an edge on some of his colleagues: a Harvard law degree, a relatively safe seat and a proximity to, and affinity for, the cameras. But as with everything else in his career, Mr. Schumer has mostly propelled himself to the center of the action. It started with his status as an extremely junior member of a high-powered Senate committee, and his assignment to one of its least interesting subcommittees: Administrative Oversight and the Courts, which had recently heard testimony on administrative procedures in the Department of Agriculture.

“Nobody wanted it,” Mr. Schumer said of the subcommittee assignment.

Then, on May 9 of 2001, Mr. Bush announced his first round of Appellate Court nominees, a group that made it clear he took seriously his conservative supporters’ wish for a judiciary remade in the model of Justice Antonin Scalia.

The group of 11 included two, Priscilla Owen and Miguel Estrada, who would wind up in the middle of the filibuster fight. It also included the current Chief Justice of the Supreme Court, John Roberts.

Less than a month later, Vermont Senator Jim Jeffords left the Republican Party, giving the Democrats control of the Senate and making Mr. Schumer the chairman of this dull little subcommittee. Within weeks, it wasn’t so dull.

That July, Mr. Schumer turned his subcommittee into a platform for hashing out the central issue of judicial confirmation: What qualifies a person to be a federal judge? With the other key members of his committee largely focused on their own chairmanships elsewhere, Mr. Schumer devoted himself to the judges.

“Chuck came with one thing that [Senator Joseph Biden of Delaware, Senator Kennedy and others] didn’t have as much of, and that’s time,” said Tom Daschle, then the Senate Majority Leader.

His first hearing in a series (“They became a little famous,” Mr. Schumer says; “people still cite them”) was titled “Should Ideology Matter?”

The move surprised the Judiciary Committee’s Republicans.

“The courts subcommittee primarily handled court administration–but it’s the Senate, and your jurisdiction is as broad as you can make your argument to be,” said Makan Delrahim, then the Republican counsel to the full committee.

The hearings proceeded through the summer and resumed in 2002, serving as a kind of a backup document to the Senate Democrats’ filibuster of Judge Estrada and several other nominees.

They drew criticism from Republicans: The ranking member on the subcommittee, Senator Orrin Hatch, labeled Mr. Schumer’s call to return to open evaluations of ideology a “historic misstep.” The next fall, as Mr. Schumer led a hearing about the D.C. Circuit Court of Appeals titled “The Importance of Balance on the Nation’s Second-Highest Court,” Mr. Hatch griped that “the premise of this hearing reminds me of a nickname that some clever college freshman gave to one of his required first-year courses: Introduction to the Obvious.”

And after Republicans retook the Senate in the 2002 midterm elections, Mr. Schumer’s seminars came to a halt.

But the damage had been done to the notion that asking nominees about ideology would be an unfair “litmus test.”

“What Chuck is saying is, call it a litmus test or not, the Senate does have an obligation to make sure a new Supreme Court judge is going to respect these fundamental pillars of the constitutional order,” said City Councilman David Yassky, a former law professor who worked for Mr. Schumer in the House. Mr. Schumer argues that attempts to roll back recent precedents–like Roe v. Wade, and the wide use of the commerce clause in the Constitution to justify federal regulation–represent unacceptable “activism.”

Urging Confrontation

In the summer and fall of 2001, as Mr. Schumer led his public hearings, he was conducting another fight in the privacy of the Senate Democrats’ caucus meetings in the L.B.J. room just off the Senate floor. There, Mr. Schumer was making the case that conservative judges were worth fighting.

“He had to persuade a lot of people–it wasn’t easy,” Mr. Daschle recalled.

As Mr. Schumer remembers it, he made his case to his colleagues one by one, and then in a speech to the full caucus.

“I had to work them. I had to sit down with Diane Feinstein and Joe Biden, who were very leery of this,” he said. Then, in caucus, “I got up and I said we should not do this because we’ll win politically–we won’t. We should do this because that’s why we’re Senators. If we don’t, we could be looking in the mirrors 20 years from now, when we’re shaving or putting on our makeup or whatever, and say, ‘How did we let this happen?’”

In the end, just two filibusters held; Judge Estrada withdrew. But Mr. Schumer was right that they wouldn’t help his party politically. Many observers think they contributed to costing Mr. Daschle his job and the Democrats their majority.

Three years after Mr. Schumer’s last hearing, the climactic fights over the Supreme Court are at last underway. Chief Justice Roberts made it through largely unscathed.

“Roberts was quite stealthy, but he was so brilliant he could pull it off,” said Mr. Schumer, who voted against confirming the Chief Justice.

But when it came to Harriet Miers, Mr. Schumer argues that conservatives–concerned that she would tilt left–finally conceded his point that ideology matters.

“Sam Brownback and I sat down, and we agreed” that a nominee’s views should be better known, Mr. Schumer said of the Kansas Republican. “We’ve won that argument now. I don’t think they’ll ever be going back to a stealth nominee.”

And now, as Judge Alito approaches his confirmation hearings, the lines are being drawn more clearly than ever. One protégé of Mr. Schumer, Congressman Anthony Wiener, declared on Nov. 1 that the Alito nomination was an “open-and-shut case,” that the judge’s opinion in the notification case was grounds for disqualification.

Mr. Schumer hasn’t been quite as blunt. Instead, he co-opts the conservative criticism of liberal “judicial activism,” arguing that conservatives now practice what they once condemned.

“I always felt that judges should interpret law, not make law,” he said. “I remember in college and law school in the late 60’s and early 70’s, even though I agreed with the substance of the Warren Court’s decisions, I thought that some of them were making law.”

Not, the Senator quickly added, with civil-rights rulings like the decision in Brown v. Board of Education, which was issued in 1954. But the Warren Court also greatly strengthened defendants’ protections against police searches.

“I think they went too far on criminal law,” Mr. Schumer said. And while the Senator laughs off the running speculation that he aspires to sit on the Supreme Court himself one day, you could almost hear his testimony to the committee.

“I think they went too far on criminal law,” Mr. Schumer said. And while the Senator laughs off the running speculation that he aspires to sit on the Supreme Court himself one day, you could almost hear his testimony to the committee.

The One That Got Through…