Sen. Chuck Schumer has landed in the eye of the political storm surrounding President Barack Obama’s plan to nominate a replacement for the late Justice Antonin Scalia, both as a lead voice for Senate Democrats and as a target for Senate Republicans.
In the week since Scalia’s death, the New York Democrat has insisted that the Senate hold hearings and vote on whoever Obama nominates in what will be a high-stakes battle over whether the Supreme Court’s majority remains conservative or flips to liberal.
And he has criticized Senate Majority Leader Mitch McConnell (R-Ky.) as an obstructionist for declaring the next president, not Obama, should pick the next justice so voters have a voice in November.
In response, McConnell has called Schumer a hypocrite for urging Democrats in a 2007 speech not to confirm a high court nominee in the last 18 months of President George W. Bush’s term “except in extraordinary circumstances.”
“He’s in the center of the storm right now,” said Carrie Severino, executive director of the Judicial Crisis Network, an advocacy group in favor of conservative federal judges.
In telephone interview Friday, Schumer said his speech is being misconstrued, and he took a less confrontational approach to the nomination.
“Look, I’d like to see the Senate work the way it used to. We had some good success in the fall,” Schumer said, citing legislation that Congress passed on a bipartisan basis.
“I don’t see it makes any sense to not have a hearing and not have a vote,”he said. “It’s legitimate for folks to vote no if they think the candidate’s out of the mainstream.”
Yet the open seat comes amid a configuration of events, timing and politics that portends great potential conflict.
“This is the first Supreme Court nomination in 25 years by a president facing a Senate controlled by the other party. Plus, it’s Scalia’s seat, it’s an election year, the nomination could dramatically alter the court, and conservatives are more mobilized than ever,” said Ed Whelan, who leads the conservative Ethics and Public Policy Center.
Schumer has long engaged in judicial politics. He can be a deal maker behind the scenes but a firebrand publicly.
Convinced Bush was aiming to shift the courts to the right, Schumer led filibusters of his nominees and said the Senate should weigh a nominee’s ideology, not just the usual legal and ethical qualifications.
But it’s his 2007 speech to the liberal American Constitution Society that has come back to haunt him. In it, he said Chief Justice John Roberts and Justice Samuel Alito had “hoodwinked” the Senate in their 2005 hearings by vowing to respect precedent but then overturning rulings on abortion, race and campaign finance.
“Given the track record of this president and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances,” Schumer said.
Still, Schumer will play a key role this year as the Senate Democrats’ chief of messaging. If the nomination fails, he’ll have a bigger role next year as the Senate Democrats’ leader.
He said he has urged the White House to pick a “mainstream” nominee to win Republican votes, such as his first two picks, Justices Sonia Sotomayor and Elena Kagan.
With a chasm between the right and left, Whelan said, “The idea of a ‘mainstream’ candidate that might be acceptable to both is a fantasy.”
Undeterred, Schumer said, “This is a real test of whether Congress can get back to working together.”