Confirmation process then, now: Both parties flip-flop

0 Comments | Deseret News (Salt Lake City), Jul 31, 2005 | by Dick Polman Knight Ridder Newspapers

PHILADELPHIA -- Democrats in Washington think it's time to stop swooning over John Roberts. They want the guy to get specific.

They want President Bush's high-court nominee to state his positions on the hot judicial issues that might land in his lap -- abortion, privacy, gay rights, affirmative action, church and state, federal power, you name it. As New York Sen. Charles Schumer argued in a speech Wednesday, "This (confirmation) process should not be a rote and robotic review of the resume." On the contrary, he insists that Roberts should specify his views "to prove that he is not an ideologue."

Yet this was not the Democratic argument in July 1993, when President Bill Clinton tapped Ruth Bader Ginsburg for the court. Quite the opposite, in fact.

Here's what Delaware Sen. Joseph Biden -- at the time, chairman of the Senate Judiciary Committee -- advised Ginsburg: "You not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 forms, probably, over your tenure on the court."

Today's Democrats, above all, want specificity on abortion. Vermont Sen. Pat Leahy said Monday that if a nominee doesn't declare advance support for Roe v. Wade, "I don't see how they get confirmed." Yet back in 1999, Leahy told PBS: "You cannot have a small clique decide they want to know exactly how judges are going to rule before they go on the bench."

In other words, welcome to the Senate confirmation process, where the principles of lawmakers appear to be quite flexible -- dictated by the contingencies of the moment, and fueled by the take-no- prisoners mentality that dominates contemporary politics.

In the weeks ahead, as the Judiciary Committee prepares for hearings with Roberts, there will be considerable wrangling over whether it is wise or foolish to elicit a court nominee's opinions on issues and rulings, both past and pending. It's part of a larger debate, centuries old: Should we pick judges solely on the basis of brains and temperament, or do we want judges with known views who will deliver predictable rulings?

When politicians weigh in on these lofty issues, however, expediency often trumps consistency. The current Republican stance, for example, is essentially the opposite of the 1993 Republican stance.

Twelve years ago, Republicans tried hard to pin down Ginsburg on issues, and after they won control of the Senate in 1995, they invoked specificity as a weapon against Clinton's lower-court nominees. The Judiciary Committee chairman at the time, Utah's Orrin Hatch, argued in a 1997 speech, "I believe the Senate should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists."

Yet today, with Bush in power, Senate Republicans are arguing the other way. In a memo Tuesday, they said: "No judicial nominee should be compelled to answer any question that would force him or her to prejudge or signal future conclusions. . . . Any demand that Judge Roberts prejudge cases or issues threatens the independence of the federal judiciary."

The two parties have exchanged stances out of political necessity. Republicans don't want Roberts to get specific about his views on Roe v. Wade because they don't want to risk triggering broader opposition to him, or sowing doubts among the few GOP senators who support Roe. The latest polls show that a significant majority of Americans want Roberts to state his position on abortion -- and that a majority want Roe to remain the law of the land.

Meanwhile, the Democrats, confronted with a widely lauded GOP nominee, are demanding specificity because it might provide them with some much-needed traction: If Roberts answers their questions and reveals conservative views, they can cite those views as a reason to vote no (and thus satisfy liberal interest groups); and if Roberts refuses to answer their questions, they can cite stonewalling as a reason to vote no.

That second option is probably more likely. Court nominees are trained by their handlers to answer in generalities (they always say they'll adhere to the law when making their rulings), and Roberts probably won't be different. Schumer, a Judiciary Committee member, has met with Roberts but failed to get him to open up. On Wednesday, he warned, "Judge Roberts' reticence is wrong. I think it's going to cause some problems."

Yet the record shows that the Republicans decided not to cause problems for Ginsburg back in 1993 -- despite her staunch reticence on dozens of questions during the Senate confirmation hearings.

When Hank Brown, a Colorado Republican, asked whether gays deserved equal rights, she replied, "This is an area where I sense that anything I say could be taken as a hint or forecast." When South Carolina's Strom Thurmond asked for an opinion about private- school vouchers, she replied, "This is the very kind of question that I ruled out." When Pennsylvania's Arlen Specter tried to quiz her about the death penalty, she replied, "My own views . . . are not relevant to the job for which you are considering me."