Ideology Serves as a Wild Card on Court Pick - New York Times

Ideology Serves as a Wild Card on Court Pick - New York TimesNovember 4, 2005
Ideology Serves as a Wild Card on Court Pick
By SCOTT SHANE

WASHINGTON, Nov. 3 - Senator Patrick J. Leahy, Democrat of Vermont, concedes that Judge Samuel A. Alito Jr. - a brainy product of Princeton and Yale, a former federal prosecutor and Supreme Court litigator and an appellate judge for 15 years - has the qualifications to serve on the nation's highest court.

But Mr. Leahy says unapologetically that the stellar résumé is not enough. He says he plans to assess Judge Alito on ideological grounds.

"This is not over competence," Mr. Leahy, ranking Democrat on the Senate Judiciary Committee, said. "He certainly is competent. This is the whole issue of ideology, and if the ideology is one that you go in with a predetermined agenda, then I don't care if they are a Democrat or a Republican. They don't belong on the Supreme Court."

The debate over what criteria senators should use in deciding how to vote on Supreme Court nominees is almost as old as the court itself, because the Constitution offers the scant instruction that justices should be appointed "with the advise and consent of the Senate."

Should education, temperament, experience and integrity be the sole determining factors? Or should ideology, a nominee's political leanings and predictable stands on the hot judicial disputes of the day, also have a major role?

As Judge Alito continued on Thursday to make the rounds on Capitol Hill, senators of both parties examined his views on issues like the separation of church and state.

Senator Joseph I. Lieberman, Democrat of Connecticut and a member of the bipartisan moderates known as the Gang of 14, said it was too soon to decide whether Judge Alito's conservatism amounted to the "extraordinary circumstances" that the group has agreed might justify a filibuster. [Page A22.]

Mr. Lieberman said, "I think ideology is a relevant thing."

The nomination poses questions about the unwritten rules to decide on a confirmation. No one has questioned Judge Alito's knowledge, experience or intellect. But if he succeeds Justice Sandra Day O'Connor in what has been a swing seat on critical issues, his staunchly conservative views could have a profound effect on the court and the nation.

"It presents the issue in a very crystalline form," said Richard D. Friedman, a law professor at the University of Michigan. "Alito is superb on all the measures of qualifications. All that's left to oppose him on is ideology."

Professor Friedman argues that ideology should not have a dominant place in the Senate consideration.

"The aggressively ideological opposition distorts the confirmation process," he said. "Treating it as a political matter may encourage a view of the court as nothing more than another political institution."

But Lee Epstein, a professor of law and political science at Washington University, said that to expect senators to engage in an apolitical confirmation process was unrealistic.

"If their constituents think ideology is a good reason to vote against a nominee," Professor Epstein said, "they're going to vote against him."

Of the 156 Supreme Court nominees since the court was created, 35 have been rejected or withdrawn, according to the Congressional Research Service. Most of the 35 were clustered in times of turmoil like the Civil War and Reconstruction, when politics often trumped qualifications.

In 1869, more than a century before bloggers and cable pundits would turn up the heat on nominees, President Ulysses S. Grant nominated Ebenezer Rockwood Hoar, widely considered one of the nation's top legal minds. After seven bitter weeks, the Senate voted him down, 33 to 24, in part because he had pressed for the selection of federal judges on the basis of legal talent rather than political allegiance.

No nominee has been voted down since Robert H. Bork, President Ronald Reagan's conservative nominee in 1987. Harriet E. Miers withdrew last month because of criticism of her credentials, not her views.

A statistical model developed by Professor Epstein and her colleagues, which incorporates newspaper editorials and other sources, suggests that confirmations have steadily grown more polarized over ideology in recent decades.

Since 1937, her model shows, the importance of nominees' qualifications has not changed. But ideology took on greater importance beginning in the 50's, with Brown v. Board of Education and conservative criticism of the Warren court. Ideology "exploded" after the Senate rejected Mr. Bork, Professor Epstein said.

The bitterly contested confirmation hearings for Justice Clarence Thomas, who was accused of sexual harassment by a former employee, Anita F. Hill, played out before a rapt national television audience.

To some, the court's role in settling the 2000 presidential election seemed to shatter once and for all any notion that it occupied some antiseptic zone untouched by politics.

Senators of either party who serve long enough usually find themselves on both sides of the ideology question. In 1967, Senator Edward M. Kennedy, Democrat of Massachusetts, backing Thurgood Marshall's nomination, urged his colleagues not to reject the nominee simply because they might not share his views.

"We are really interested in knowing whether the nominee has the background, experience, qualifications, temperament and integrity to handle this most sensitive, important and responsible job," Mr. Kennedy said.

When Judge Alito was announced on Monday, Mr. Kennedy, although acknowledging that he was "clearly intelligent and experienced on the bench," said he "could very well fundamentally alter the balance of the court and push it dangerously to the right."

Such elasticity is bipartisan, of course. "The hypocrisy on the Republican side is just as blatant," Lanny J. Davis, a Democratic lawyer who worked in Bill Clinton's White House, said. "Everybody should just admit it. Substance matters. It's not just the résumé."

In September, when 22 Democrats voted against the confirmation of Chief Justice John G. Roberts Jr., some Republicans accused them of blatant partisanship. The Republicans drew a pointed contrast with the treatment of Mr. Clinton's nominees, Justice Ruth Bader Ginsburg, who received just three no votes in 1993, and Justice Stephen G. Breyer, opposed by just nine senators in 1994.

But at least two Republican senators who were not in office in 1993, Jeff Sessions of Alabama and John Cornyn of Texas, have said they would not vote for Justice Ginsburg today.

"Let me tell you why I wouldn't vote for Ruth Bader Ginsburg," Mr. Sessions said. "Because in her own writings and the positions that that she took, she clearly evidenced a philosophy of judicial activism.

"If a judge has strong political views, it is perfectly appropriate to inquire whether those views would affect their legal reasoning and cause them not to be objective and fair."

Professor Epstein and other legal scholars are wary of some of the terms thrown about in this debate. On Roe v. Wade, the abortion ruling that has stood as a precedent since 1973, she asked, would not a "judicial conservative" be a person who would uphold it and a "judicial activist" one who would overturn it? That is the opposite of the way such terms are often used.

"I told my class the other day I have no idea what judicial activism is," Professor Epstein said. "Maybe the best definition of a judicial activist is a judge you don't like."

David D. Kirkpatrick contributed reporting for this article.