Our Fringe Senators

Editorial of The New York Sun
May 25, 2005

The senators spent most of Tuesday trying to bask in the reflected glow of amicability that emanated from the 14 "moderates" who engineered a horse trade Monday night to allow the confirmation of three of President Bush's judicial nominees. When the cloture motion on the nomination of Priscilla Owen to the federal appeals bench finally came to a vote yesterday, a full 81 senators supported giving her an up-or-down vote.

In a letter to President Bush, Senator Schumer praised the "bipartisan show of good faith and trust" that brought the Senate "back from the precipice of breakdown," even as he chided the president for not consulting Democrats on judicial appointments. Senator Clinton didn't release a formal statement, but she did join Mr. Schumer in voting to allow Judge Owen an up-or-down vote, which looks a lot like a conciliatory gesture to us - especially since Mr. Schumer and Mrs. Clinton had each voted four times back in 2003 against allowing the Owen nomination to come to an up-or-down vote.

But before anyone gets carried away in this new spirit of comity, mark how we came to be on the "precipice" in the first place. Senators Schumer and Clinton weren't part of the bipartisan group forging a compromise on the judicial nominations. If anything, Mr. Schumer used his seat on the Judiciary Committee to pioneer the use of the filibuster to block nominees.

During committee hearings on the nomination of Judge Janice Rogers Brown in 2003, Mr.Schumer charged that "it's obvious to me that many of the president's judicial nominees want to return us not just to the 1930's, but to the 1890's," according to the New York Times. It was apparently a reference to a period when the courts still accepted racial segregation. In a floor debate not long after, Mrs. Clinton referred to the president's nominees as "lemons." They were just warming up.

Within the past month, Mrs. Clinton issued a statement saying that "I must admit that I find it somewhat ironic that as we fight to promote democracy abroad, we are watching the fundamental tenets of our democracy here at home be torn apart by a Republican majority that is only interested in promoting its own extremist agenda."

Speaking on the Senate floor, Mr. Schumer bemoaned the nomination of "judges who believe, for instance, that the New Deal was a socialist revolution and should be undone. Judges who believe that zoning laws are unconstitutional. Judges who believe the purpose of a ... woman should be to be subjugated to a man. Judges who believe that slavery was God's gift to white people." These over-the-top claims wound up leaving New Yorkers unrepresented in the bargaining room where leaders like Senators McCain and Lieberman were making agreements to get seats filled on the federal bench.

In respect of returning America to the 1930s, no one of late holds a candle to the neo-protectionist Smoot Schumer. But Mr. Schumer and Mrs. Clinton are each capable of compromise when the spirit moves them. In recent years, we've applauded Mr. Schumer for his bipartisanship on class-action lawsuit reform and encouraged Mrs. Clinton as she has made steps toward welfare reform.

Yet when it comes to the federal bench, so far they've only been interested in partisan politics. When, on Monday evening, Mr. Lieberman proclaimed, "the bipartisan center held," New York's senators were off the field. They haven't been part of the centrist group. They've been out there on the far fringes of obstructionism. The way for New Yorkers to assure they are part of the decision-making in Washington on judges is to elect a Republican in 2006 and help President Bush get a filibuster-proof majority.