Sen. Schumer’s evil experiment

By Thomas Jipping

Sen. Charles Schumer, D-N.Y., these days looks like “Q”‘s evil twin – while Q created gadgets to help James Bond beat the bad guys, Sen. Schumer creates them to help his fellow Democrats beat the good ones.

His lab is the subcommittee he chairs, and in it he hatches plans and makes tools for opposing President Bush’s judicial nominees. In a June 2001 hearing, he conjured up a plan for senators to use raw ideology and litmus tests to evaluate nominees. Sure, that politicizes the judiciary and destroys judicial independence – but no matter.

The ideology campaign has had some success, with Democrats now virtually ignoring nominees’ qualifications. And boy, you gotta feel sorry for the American Bar Association these days. Last year, Democrats were their only friends, proclaiming ABA ratings the “gold standard” for evaluating nominees. Now, Democrats just shred the ratings and take out the litmus tests instead.

Sen. Q was back in the lab this week, holding a hearing on the need for “balance” on the U.S. Court of Appeals for the D.C. Circuit here in Washington. He wanted to warm things up before chairing yesterday’s hearing on the nomination of Miguel Estrada to that court.

The timing here is a little odd. The D.C. Circuit has been one-third empty for a year and Mr. Estrada’s nomination has been pending for 506 days. The seat to which his fellow nominee, John Roberts, has been named has been vacant for more than six years. On the other hand, the court’s eight full-time judges are evenly divided between Republican and Democrat appointees. Mr. Roberts would replace Reagan appointee James Buckley, but Mr. Estrada would replace Carter appointee Patricia Wald. Tilt. No wonder Sen. Schumer went back to the lab.

All kidding aside, everyone knows what’s going on here. The far-left can’t afford judges who (gasp) let “we the people” run the country and define the culture, because we reject most of its agenda. Since they are about power, not liberty, they seek activist judges who will ignore the law the people make in favor of whatever will deliver the right (or left) political goods. Mr. Bush’s nominees are so well qualified that the far-left has to change the subject and create new ways to defeat them.

Mr. Estrada also received a unanimous “well qualified” ABA rating. Turning just 41 on Wednesday, Mr. Estrada was a law clerk on the U.S. Supreme Court after graduating magna cum laude from Harvard Law School. A former assistant U.S. Attorney in New York, he served in the U.S. Solicitor General’s office during both the Bush and Clinton administrations, and now is a partner with one of the nation’s most prestigious law firms.

The litmus testers don’t have much to go on here. When the National Organization for Women sued pro-lifers under the federal racketeering law, for example, Mr. Estrada wrote a brief for the Clinton Justice Department supporting the feminists’ reading of the statute. The U.S. Supreme Court unanimously agreed with him.

The far-left’s playbook says that if nothing real exists, just make it up. So out trots Paul Bender, a leftist who served as deputy solicitor general during Mr. Estrada’s Justice Department tenure. Last year, he said Mr. Estrada is an “ideologue” who cannot separate his personal views from his lawyering.

That’s tough to square both with the “outstanding” performance evaluations Mr. Bender signed for Mr. Estrada and the rave reviews from every other person who worked in that office at the time. Former Solicitor General Seth Waxman, for example, says Mr. Estrada is an “exceptionally well qualified appellate advocate.” Ron Klain, former chief of staff to Vice President Al Gore, says Mr. Estrada is “a very independent thinker” who is “confident enough to come to his own conclusions.” Mr. Bender has never given any examples of Mr. Estrada’s supposedly ideological work and now refuses to give interviews on the subject.

Mr. Bender was chief counsel for the 1970 presidential commission on obscenity that recommended eliminating all legal restraints on porn. The Senate then voted 95-5 to reject Mr. Bender’s position. Once in the Justice Department, he got the administration to change its view of the child porn law, narrowing its definitions to make prosecuting pedophiles more difficult. This time, the Senate voted 100-0 to condemn Mr. Bender’s position. Oh, and the House voted 426-3 and even President Clinton piled on in November 1993. Who’s the ideologue?

If you know someone by his critics, Mr. Estrada may be even more qualified than even the ABA first thought.