Obama's Justice: How Biden Politicized Supreme Court Appointments

Her bio reads out of Democratic Party central casting: daughter of the South Bronx, who grew up in a housing project. Her father, a factory laborer from Puerto Rico with a third-grade education who spoke no English, died when she was nine years old -- a year after Sonia was diagnosed with childhood diabetes. While working as a nurse six days a week, her widowed mother Selena, whom the judge singled out as her greatest role model, insisted that she and her brother study hard.

They heeded this advice. Her brother became a physician, and Sonia earned outstanding grades and headed off to Princeton and Yale Law School. She worked in New York as a prosecutor, then a private litigator, before being appointed to the federal district court by the first President Bush, and elevated to the appellate court by President Clinton.

As an appeals judge, Sotomayor is reliably liberal and known for being a forceful questioner from the bench. She'd be a role model and an instant icon. As New York Senator Charles Schumer put it in a letter to Obama last month, "Judge Sotomayor has a long and distinguished career as a public servant...and commitment to public service."

That statement is self-evidently true, but for nearly every Republican member of the Senate, there is a powerful case against voting for Sonia Sotomayor, and it was made bluntly during the last administration by none other than Chuck Schumer himself -- as well as by the vice president who stood beside Obama in the East Room Tuesday while the president introduced Sotomayor to the nation.

After George W. Bush nominated Judge John G. Roberts Jr. to replace William Rehnquist as chief justice, Schumer immediately said that he would conceivably vote for a "mainstream conservative," but not an "ideologue." This proved to be not only a subjective line, but a moveable one, and as the hearings continued, Schumer demonstrated himself to be as much or more of an "ideologue" than John Roberts: "Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society?" Schumer asked the nominee.

Is "remaking" society the job of the Supreme Court? And what did Schumer have in mind in this great remaking? Well, it wasn't hard to determine. Abortion rights, of course. Also, Schumer tried to get Roberts to promise that he would lend his support from the bench to "the environment, Americans' health and workers' civil rights."

Nothing wrong with any of these causes, of course: Any Democratic statewide candidate from New York, or Delaware, should certainly espouse them. Schumer was joined in this chorus by numerous Democratic liberals in the Senate, 22 of whom voted against Roberts despite his braininess, qualifications, and obvious judicial temperament. Another one of the nay votes was cast by Joseph Biden, who blurted out during the confirmation process that Roberts was essentially running for office.

He isn't, of course, but if the issue is framed that way, then they should vote against him, because they differ with him on the issues. But since when did judicial appointments to the high court simply mirror political candidacies? Since the late 1980s is the answer, and our current vice president was instrumental in this change. Why? Political expediency seems to have been the catalyst, not any Biden epiphany about the Founders' intentions.

In 1986, a year before Biden took over as Judiciary Committee chairman, Antonin Scalia (the first Italian-American justice, by the way) passed out of the committee unanimously and was confirmed by the full Senate on a 98-0 vote. Late that year, as word reached Capitol Hill that President Reagan might nominate Robert Bork, Chairman Biden conceded that he'd have to vote for a man of such sterling qualifications, and that if the Democratic special interest groups "tear me apart, that's the medicine I'll have to take."

In the summer of 1987, however, when the Bork nomination was sent to Judiciary, Joe Biden decided that running afoul of feminist groups was a pill he could not swallow after all. You see, by then Biden was running for president in a large field of Democratic contenders. And a new theory of constitutional law was born.

"The Framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary," Biden claimed that August. "The Senate has an undisputed right to consider judicial philosophy."

And so it did, with an unhealthy dose of character assassination tossed in the mix. Bob Bork saw his nomination go up in smoke, as Democrats followed the lead of Sen. Edward M. Kennedy, and Bork's name itself became a verb.

Much more than one nomination was impacted.

In fact, Sonia Sotomayor would likely not have been the first Hispanic member of the court had not the Democrats on the Senate Judiciary Committee "Borked" a George W. Bush nominee named Miguel Estrada, who never even made it to the appellate bench. Although the same party controls the Senate and the White House today, those who cared about the court still worry that an undesirable precedent has been established.

They have warned of two likely outcomes, both disquieting.

The first was raised by former Sen. Alan Simpson, a Wyoming Republican, twenty years ago. Noting how Bork's written opinions had been used against him, Simpson predicted that the logical replacement for Bork would be an imaginary lawyer named "Jerome P. Sturdley," who had written little that was thoughtful or original. He was a stealth candidate. Nobody would know how he would vote, true, but nobody would know if he was qualified to be a justice either.

Lo and behold, Jerome Sturdley soon made it to the court, or at least a reasonable facsimile of him did. His name was David Souter, and it is his seat Obama now wants to fill with Sotomayor.

A second, and even more unsettling, possible result of the Biden-Schumer theory of advise and consent was that the court would simply become so politicized that its ability to interpret the law in a fair or judicious manner would gradually evaporate. The justices' opinions would simply ratify the stance of the party that chose them; in time, their moral authority in the eyes of the citizenry to apply constitutional principles would cease to exist.

That second scenario was painted by legal writer Stuart Taylor Jr. in the context of John Roberts' nomination fight. Taylor wrote that if the Democrats ever succeeded in forcing nominees to reveal their views on political issues or dicey court cases, it would not only "corrupt the integrity and independence of new justices," but would open the way "for presidents to pack the court with people who have virtually pledged their votes on a long list of issues."

The high court has always had its detractors, and not every American is going to view its pronouncements as Olympian. But consider how citizens will view a court in which weighty constitutional decisions are dismissed by half the public because those who sit on the court are viewed as Democratic justices or Republican justices. A preview of that worry came with the disconcerted, even bitter, reaction of many Americans to the decision called Bush v. Gore.

The challenge of avoiding that fate is in Republican hands as well as the Democrats, who because they have enough votes to confirm any name the White House sends them, are perhaps not aware of the danger. But Republicans should be -- because the pressure is building already. As Sotomayor's nomination was announced Tuesday morning, Wendy E. Long, counsel to the conservative Judicial Confirmation Network, sent out a blast-fax denouncing Sotomayor as "a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written."

If Senate Republicans were to follow the Biden-Schumer-Kennedy concept of advise and consent, they would heed such warning from their base and vote against Judge Sotomayor solely on the issue of ideology.

Or they could rise above partisanship and acknowledge that, because Obama won the election, the Constitution gives him the right to appoint qualified judges. Their decision won't dictate the outcome of this nomination; unless some scandal is revealed, she will be confirmed. Yet it might effect the standing in public opinion of the third branch of government. And that is not nothing.