SHOULD IDEOLOGY BE CONSIDERED BY THE SENATE DURING THE CONFIRMATION PROCESS FOR JUDICIAL NOMINEES?

A recent hearing before a subcommittee of the Senate Judiciary Committee addressed one of the more controversial issues of our political era: Should the Senate consider ideology when voting on the confirmation of federal judges, particularly Supreme Court justices?

For most Republicans the answer was no. Most Democrats, however, think the answer is yes. Who is correct? A sampling of the witnesses, experts intimately familiar with the subject, provides the answer.

Senator Charles Schumer (D. NY), the newly anointed chairman of the Senate's subcommittee on administrative oversight and the courts, staked out his position at the outset of the hearings. Schumer said the closeness of the last presidential election, and the all but equally divided Senate, mandated "moderation and bipartisanship."

While the President can obviously appoint as "he sees fit," Schumer warned if he "sends countless nominees who are of a particular ideological caste, Democrats will likely … deny confirmation" to prevent further ideologically tilting the courts.

On the other side, the former chairman of the Senate Judiciary Committee, Senator Orin Hatch (R. Utah), charged that Schumer's hearing was "the first step in a troubling attempt" by the Democrats to change "the ground rules by altering the long-standing practice of avoiding any examination of political ideology beyond the question of whether nominees could put such ideology aside."

No doubt the 100 judicial nominees submitted by President Clinton who were rejected or not even given a hearing by Senator Hatch might look askance at Hatch's claim that ideology is not relevant. In fact, anyone who reads Supreme Court rulings like Bush v. Gore appreciates that judges do make the law, and their ideology does make a difference.

It appears that Democrats are concerned that President Bush II wants to stack the judicial branch with conservative ideologues, or in Bush's own words, judges like Antonin Scalia and Clarence Thomas. Thus, they called this hearing to lay the issue on the table for discussion.

To address this issue, the subcommittee called on two former White House counsel, several law professors, and legal activists to share their thoughts. This testimony produced solid arguments on both sides — and one major problem.

Former White House counsel Lloyd N. Cutler, who served under Presidents Carter and Clinton, reminded the subcommittee that a bipartisan commission assembled by The Miller Center of Public Affairs at the University of Virginia examined this question and reported on it in 1996. Similarly, Citizens for Independent Courts filed a report on this and related issues in 1999.

Cutler embraced the earlier recommendations from the 1996 and 1999 studies: "To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one," he testified. "That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts."

Cutler's law partner C. Borden Gray, who served as father Bush's White House counsel, also testified that he believed ideology should not be part of the process — either in the Senate, or at the White House. He added that nominees should not answer questions about their ideology either, citing historical precedents.

I was surprised that these men, who had once worked in the trenches, both talked naively in terms of ideals (and neither man is naïve) — not the way the process really works today. Surely, Borden Gray did not recommend that his boss nominate Clarence Thomas without taking ideological considerations into account.

At the hearing, it was the academics who talked turkey, and took on the real world. Ironically, their perspectives were not as "ivory tower" as those of the former White House counsel.

Harvard Law School constitutional law professor and occasional U.S. Supreme Court practitioner Laurence H. Tribe told the subcommittee that today most Americans appreciate that the rulings of the U.S. Supreme Court affect their lives. This fact was driven home, he said, by the high court's "highly controversial and I believe profoundly misguided performance last December in the case of Bush v. Gore."

Professor Tribe told the subcommittee, in essence, that the President has made clear that he is going to select nominees who mirror his views of the Constitution. Accordingly, Tribe counseled that since the Supreme Court is already tilting to the right, the Senate has an obligation to set the balance straight. While he did not advocate injecting ideology, he recognized it was already in play.

Tribe would have the Senate undertake the role "the Framers contemplated, what history confirms, and what a sound appreciation for the realities of American politics demands." He would shift the burden to the nominee and the President "to persuade each Senator … that the nominee's experience, writings, speeches, decisions, and actions affirmatively demonstrate not only the exceptional intellect and wisdom and integrity that greatness as a judge demands but also the understanding of and commitment to those constitutional rights and values and ideals that the Senator regards as important." In short, in Tribe's view, ideology can't be ignored.

University of Chicago Law School professor Cass R. Sunstein was a bit more blunt: "'Ideology' should certainly matter," he testified, "both for the President and for the Senate. At least, this is so if 'ideology' means the expected approach, and general patterns of votes, of a potential judge."

Professor Sunstein looked at history and past practice. He noted that while "the Senate ought generally to be deferential to Presidential nominations" relating to the executive branch, it was different "when the President is appointing members of [the Judiciary]." The judiciary "is supposed to be independent of the President, not allied with him."

Sunstein explained that the Framers contemplated the Senate's active involvement in the nomination and confirmation process. He noted that ideology "has played a role in the Senate's consideration of many [recent] nominees, including David Souter, Robert Bork, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Anthony Kennedy and others."

Northwestern University School of Law professor Stephen B. Presser expressed the contrary view that ideology should not be a factor. Relying largely on Alexander Hamilton's views of the Constitution, as expressed in Federalist Nos. 76 and 78, he testified that "the Senate should not use its own partisan political preferences for the production of particular results in the court."

Presser made clear he had no problem with Bush's potential nominees, should they be in the image of Antonin Scalia and Clarence Thomas, because, he said, these two "are the Justices on the court who have been most closely associated with the interpretive philosophy [of original intent and] who come closest to most consistently demonstrating the judicial philosophy outlined in Federalist No. 78." Presser shared his belief in the wisdom of Scalia's and Thomas's positions on a number of constitutional matters.

The professor closed by noting: "I do not suggest that the law or even the Constitution should not change over time," but those changes should "come from the legislature or from Constitutional Amendment; and not through judges acting as legislators."

UCLA Law School professor Eugene Volokh took a different approach. He told the Senate, in effect, not to overreact. His chief point was that "the Supreme Court's recent jurisprudence, including the views of the Court's more conservative members, has been firmly within the mainstream of American constitutional thought." He did not mention Bush v. Gore.

The hearing made clear that there is an endless array of opinions — many of which are ideologically driven — on the question whether, and to what extent, ideology should play a role in the confirmation process for federal judges and Justices. Historical precedents, like statistics, can and often are employed to decide an argument. But in this instance, precedents and history won't work: There appears to be solid historical authority for the Senate to be as active — or as inactive — in dealing with a judicial nominee's ideology as it feels necessary.

Thus, the testimony made clear a fundamental problem: there is no correct answer to the question posed by the hearings, of whether or not the Senate should decide to confirm or not confirm based on a nominee's ideology.

The debate about the role of the Senate vis-à-vis the President in nominating and confirming federal judges, particularly Supreme Court justices, has been ongoing since the founding of our nation — and it's unlikely to end any time soon, if ever.

Recently, I had occasion to read the Senate's debate in 1986 when it confirmed Chief Justice Rehnquist and Associate Justice Scalia. During that debate, Senator Carl Levin (D. MI) addressed the question whether the Senate should consider ideology.

Senator Levin found that the Senate had been rejecting justices from the beginning for ideological reason, starting with George Washington's nominee John Rutledge who was rejected, 14- 10, for the position of Chief Justice of the Supreme Court, even though he had already served four months in that position, as a result of a recess appointment.

Rutledge's nomination was killed because of his opposition to the Jay Treaty — and he was only the first nominee to find his ideology was fatal. As of 1986, the Senate had rejected not less than 22 high court nominees for ideological reasons. Add Robert Bork in 1987 for a current total.

Rather than expressly rejecting a nominee's philosophy or ideology, however, the game has become finding disqualifying conduct, and forcing the nominee to either withdraw or risk rejection. But it doesn't always work — for the "gotcha" is not always sufficient to defeat, as Clarence Thomas's confirmation showed.

Ideology has been and will continue to be a factor at both 1600 Pennsylvania Avenue, when judicial nominees are selected, the U.S. Senate, when advice and consent are given or withheld. It only remains to be seen how the current members of the Senate Judiciary Committee will camouflage the role of ideology with "gotchas" aimed at defeating confirmations.