Chuck Schumer on the Presumption of Nomination

Senator Charles Schumer feels like he got hookwinked during the Roberts and Alito nominations. And he’s therefore not going to support any Republican nominee for the Supreme Court at all unless a good showing can be made that a new nominee will vote in a manner that pleases him. The key quote from his speech is an exhortation to his Democratic Party colleagues in the Senate: “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.”

I disagree with the premise of his proposal. Politically, there needs to be recognition that the President is going to nominate someone who he thinks will rule in a manner that pleases him, and that there must be some deference to that process or there will be no judges at all. But that’s not the same thing as a “presumption of confirmation;” rather, that’s a realistic view of the situation, and Senators who know that they disagree with the President on Constitutional issues will need to be willing to settle for “half a loaf” during times in the country’s history that political control over the nomination and confirmation process is shared between differing political parties. The distasteful necessity of such a compromise is not exactly Schumer’s complaint, of course – he thinks he was actually deceived by these nominees and their White House sponsors, and that he and his fellow Democrats didn’t even get half a loaf out of agreeing to confirm the nomination of Chief Justice Roberts and Justice Alito. But that’s besides the point.

There should be no presumption either for or against confirmation of any nominee to any post, particularly to a post as critical as the Supreme Court. The Senate has its own role to discharge in the process of putting new judges on the bench, and the Constitution says nothing about deference to the President. The Senate’s main job is to render a sober and thorough evaluation of the nominee’s qualifications and abilities to discharge the office, and at least some inquiry into that person’s likely impact on the sphere of the law and government that the nominee will influence. The exact extent of that impact analysis is not definable in easy terms, since while a judge cannot evaluate the merits of a case before the case is presented to her, her attitude about issues, individual rights, the extent of the government’s powers, and the law in a generalized sense are all important to know.

So I don’t think Senator Schumer is out of line to demand some idea of how a Supreme Court nominee will vote and behave once in office. But I do think that a litmus test on particular issues (most prominently abortion) is improper, and it’s pretty clear to me that Schumer is particularly mad about the recent abortion-rights decision. He would not have made this speech had the Court ruled differently on that single case.

Postscript: I hope all my Loyal Readers, from left, right, and center, will join me in wishing the Chief Justice a speedy recovery from his seizure and fall this afternoon.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. The Senate voted 97-3 to confirm Ginsburg’s nomination. I’m sure all 97 didn’t agreed with her. But I’m told she is well qualified. Why isn’t this brought up by the Republicans?

  2. Because Republicans like the way the Supreme Court is ruling. If a Democrat is elected President in 2008, look to see the Republicans — suddenly out of power and in the minority — changing their voting behavior.

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