Senator Schumer's Says No More GOP Justices:

Speaking yesterday at the American Constitution Society's National Convention, Senator Charles Schumer said that the Senate was "duped" and "hoodwinked" by John Roberts' and Samuel Alito's confirmation hearing performances and explained that he would "do everything in [his] power to prevent" the confirmation of another justice like John Roberts or Samuel Alito. Here are some excerpts:

Although we have only experienced one full term with both Roberts and Alito on the Supreme Court, it appears that we were not given the most accurate picture of the nominees we confirmed.

After hearing Roberts wax philosophic about judicial modesty at his confirmation hearings, and then reading his calculated decisions furtively defying stare decisis, I can only conclude that we were presented a misleading portrait.

And so, every day, I feel more comfortable with my vote against Chief Justice Roberts.

And every day, I am pained that I didn't do more to try to block Justice Alito. Every two years, I look back and take stock of my greatest failings and regrets in the past Congress. Without question, my greatest regret in the 109th Congress was not doing more to block Alito. Alito shouldn't have been confirmed. I should have done a better job; my colleagues said we didn't have the votes, but I think we should have twisted more arms and done more. . . .

We now have the most conservative Supreme Court in memory. And, as everyone knows, the Justices who are -- actuarially speaking -- most likely to step down next are the liberal ones.

The Court is, interestingly, at odds with the country. As the Court grows more conservative, the rest of the nation is in the midst of a pendulum swing in the progressive direction.

Unless we are vigilant in our efforts to moderate the Court, that institution will stand in the way of a much-needed and long-overdue swing back to moderation. . . .

[F]or the rest of this President's term and if there is another Republican elected with the same selection criteria let me say this:

We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito.

Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.

They must prove by actions—not words—that they are in the mainstream, rather than the Senate proving that they are not.

Here's coverage of the speech from Politico and Reuters. The full text is on-line at the ACS Blog here.

Are Democrats Short-Sighted on Judges?

Stuart Taylor thinks that Senate Democrats are being short-sighted on judicial nominations, and that their actions may come back to haunt a President Clinton or Presient Obama:

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative? . . .

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

I would add to Taylor's argument an additional reason why the Senate Democrats' approach is particularly short-sighted: As a campaign issue, judicial nominations has been a more successful campaign issue for Republicans than Democrats. In both the 2002 and 2004 elections, judicial confirmations were an issue that helped motivate the Republican base and boosted GOP candidates in tight Senate elections.

As I have said before (perhaps ad nauseum), I believe that Senate "advice and consent" should be fairly deferential, and I do not believe that ideology is a reason to reject highly qualified judicial nominees. Insofar as judicial philosophy should influence judicial selection, I believe it should influence the President's selection of nominees, not the Senate's decision on whether to confirm that nominee.

Among other things, I believe there are many reasons why the Executive is more likely to take a "long view" in assessing judicial philosophy than is the Legislature, and is less likely to focus on specific judicial controversies. Some of these reasons were suggested by Alexander Hamilton in Federalist 76.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

Others relate to the fact that Presidents are term-limited, whereas Senators are not — meaning that Senators are more likely to have to "live with" the decisions of confirmed judges for a longer period of time than the President, and therefore may be prone to consider how a judge will address specific issues. Thus, executive branch interviews of judicial nominees include broad discussions of judicial philosophy, whereas Senators routinely try and pin judges down on specific issues, sometimes even specific cases.

Such arguments aside, Taylor is clearly correct that Senate Democrats are creating conditions for future judicial nomination fights with their treatment of Southwick and other Bush nominees.

UPDATE: I have already addressed most of the objections of the questions raised in the comments in prior posts on judicial nominations. I summarize my views in this post, which includes links to prior posts with greater detail. (See also here.)

I recognize the difficulty of convincing either side to engage in "unilateral disarmament." My suggestion -- which I have made before but is hardly original with me -- would be for a Senate resolution endorsing a given set of rules to take effect after the next Presidential election. If done far enough in advance, there is the possibility that there would be enough uncertainty about which party would control the White House (and the Senate) that each side might agree, but it would require substantial political leadership to make this happen -- and the window for such a deal before the 2008 election is rapidly closing.