A View from the Senate

By Charles E. Schumer

Throughout the history of our democracy, Americans have looked to the federal courts to protect their rights. It was the federal courts that insured that all Americans have access to the voting booth; it was the federal courts that opened the schoolhouse door to children of all races; and it was the federal courts that declared that women have the right to choose.

Due to the large number of vacancies on the federal bench, and the possibility that a current Supreme Court Justice may step down in the coming year, the President and the Senate will have an extraordinary opportunity to influence the future of our judiciary. If the federal courts are packed with right-wing ideologues, thirty years of legal advancements for women and other Americans could be lost. In fact, it could lead to decades of judicial opinions that roll back our rights, including reproductive rights, civil rights, the right to privacy, environmental protections, and worker and consumer safety.

The Senate, working with the President, must insure that we have a balanced, moderate federal judiciary. The United States Constitution gives the President the power, with the advice and consent of the Senate, to appoint judges to the federal bench. The Senate is the last check before a judicial nominee is appointed for life. The Senate's role in the judicial confirmation process is coequal to the President's, and it is a responsibility that Senators must exercise diligently and carefully.

The Senate's role is not only critical in the selection of Supreme Court justices, but in the selection of federal judges to the lower benches as well. Since the Supreme Court hears fewer than 100 cases per year, and district or circuit court judges make the final decisions in almost all cases, it is particularly important that the Senate take seriously its constitutional role to examine every nominee to the federal bench.

The Role of the Judiciary Committee

The Senate Judiciary Committee, of which I am a member, has the lead responsibility in the Senate to review the President's judicial nominees. After the President nominates an individual for a vacant judicial seat, the Members of the Senate Judiciary Committee review the record and background of each nominee.

After the records are reviewed and the Committee determines that it has the information that it needs to go forward, the Senate Judiciary Committee holds hearings on the nominees. At these hearings, senators ask extensive questions of the nominees about any number of topics, including the nominees' legal scholarship, past judicial opinions (if the nominees have served as judges in another court), judicial philosophy, and any other issues that may give rise to concerns about the nominees' fitness for the bench. In addition, outside witnesses may also be asked to come and testify. After the hearing, the senators may submit written questions to the nominees as well.

Once all the questions have been answered, the Senate Judiciary Committee votes on whether to recommend the nominees to the full Senate. If the Committee recommends the nominees, the full Senate debates the merits of the nominees and then votes on whether to confirm them.

The Question of Ideology

Examining ideology is a critical part of the Senate's advise and consent role. But explicit discussion of ideology has become something of a taboo. Despite the historic Senate examination of a judicial nominee's ideology, ever since 1987, when Judge Robert Bork's nomination was defeated based largely on his positions on abortion and civil liberties, ideology has played a more behind-the-scenes role in nominations hearings. My view is that it would be best for both the process in the Senate and the President's nominees if we returned to a more open and rational consideration of ideology when we consider nominees.

The importance of ideology to the process varies depending on three factors: (a) the extent to which the President himself makes his initial selections based on a particular ideology, (b) the composition of the courts at the time of the nomination, and (c) the political climate of the day. The application of this test today indicates that ideology must be a very important part of the Senate's vetting process of judicial nominees. The President campaigned with pledges to appoint judges of a particular stripe in the mold of Justices Anton Scalia and Clarence Thomas. And the balance of the courts, especially the Supreme Court, leans decidedly to the right. While some judges on a Court of a conservative temperament may be fine, a Court that leans too heavily to the right may be less likely to make reasoned moderate decisions. The Supreme Court's recent cutbacks on Congressional power in a series of 5-4 decisions is probably the best evidence that we are within a period of conservative judicial rule.

The Future of the Courts

Politically, no one needs to be reminded that the President was elected by the narrowest of margins, while the Senate is nearly split down the middle. As I see it, this era calls for collaboration between the President and the Senate in judicial appointments and certainly justifies Senate opposition to judicial nominees who are outside the mainstream and have been selected in order to further tilt the courts to the right.

One of the constitutional rights most imperiled by a federal judiciary overwhelmed by right wing ideologues is the right to choose. In its most recent decision on abortion, Stenberg v. Carhart (2000), the Supreme Court upheld the right to choose by the narrowest of margins -- one vote. The lower federal courts also play an important role in ensuring women's reproductive rights -- many far-reaching decisions are made by appellate court judges and are never reviewed by the Supreme Court.

The President's promise to nominate judges like Supreme Court Justices Scalia and Thomas is very troubling when it comes to a woman's right to choose. Each has ruled consistently against reproductive rights. In Planned Parenthood of Southeast Pennsylvania v. Casey (1992), Justices Scalia and Thomas joined Chief Justice Rehnquist in bluntly stating, "We believe that Roe was wrongly decided, and that it can and should be overruled ..."

If President Bush has the opportunity to replace one Supreme Court Justice with an individual whose judicial ideology is in keeping with Justices Scalia's and Thomas' views on Roe v. Wade, the right to legal abortion in this country may be lost. Further, if President Bush has the opportunity to fill the approximately thirty vacancies on the federal appellate bench with judges who agree with Justices Scalia and Thomas, those courts could put up such procedural hurdles that American women will have almost no access to abortion services. It is imperative that the Senate, when considering a judge's judicial ideology, inquires into the nominee's views on the right to privacy and reproductive rights. Otherwise, we risk a judicial opinion that takes away the ability of American women to make decisions regarding their own bodies and lives.

Our Challenge

Not only do elected officials like myself have an important role to play in the judicial confirmation process, but you do as well. Your role involves educating yourselves about the President's judicial nominees, informing others in your community, and letting the President and your senators know your views. Ultimately, the President and the members of Congress report to you, the voter. You must make sure that your voices are heard as we go through this process. You can do several things to play a role in the judicial confirmation process.

Educate yourself about the individual nominees and about the issues at stake before the federal courts. You can do this by reading the newspaper, calling advocacy organizations that watch the courts, or working on issues of particular import to you.

Inform your community about what is at stake for them. There are many ways to educate your neighbors about the impact that new appointees to the federal courts have on them and their lives. Write letters or op-eds for the local newspaper. Organize a town hall meeting or speakers' panel on judiciary issues. Everything you do to shed light on the judicial confirmation process only increases the pressure on the President and the Senate to appoint and confirm judges that are in keeping with your ideological views.

Let the President and your senators know how you feel about the judges being appointed to the federal bench. Write letters, call, or e-mail both the White House and Congress with your views. Your elected officials cannot act on your behalf if they do not hear from you.

With so much at stake, we all must work together to insure that we have a federal judiciary that reflects the best of our nation. I will continue to work with my colleagues in the Senate, and with the President, to make sure that the federal courts remain a forum in which our constitutional rights are protected. I urge you to join the fight.

Note: This article was originally printed in the NCJW Journal: The Fight for Choice (Spring 2002).