Schumer said his “greatest regret” in the last Congress was not doing more to scuttle Alito. Schumer to fight new Bush high court picks

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”

“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”


Schumer’s assertion comes as Democrats and liberal advocacy groups are increasingly complaining that the Supreme Court with Bush’s nominees – Chief Justice John Roberts and Associate Justice Samuel A. Alito – has moved quicker than expected to overturn legal precedents.

Senators were too quick to accept the nominees’ word that they would respect legal precedents, and “too easily impressed with the charm of Roberts and the erudition of Alito,” Schumer said.

“There is no doubt that we were hoodwinked,” said Schumer, who sits on the Senate Judiciary Committee and heads the Democratic Senatorial Campaign Committee.

A White House spokeswoman, Dana Perino, said Schumer's comments show "a tremendous disrespect for the Constitution" by suggesting that the Senate not confirm nominees.

"This is the kind of blind obstruction that people have come to expect from Sen. Schumer," Perino said. "He has an alarming habit of attacking people whose character and position make them unwilling or unable to respond. That is the sign of a bully. If the past is any indication, I would bet that we would see a Democratic senatorial fundraising appeal in the next few days."

Schumer voted against confirming Roberts and Alito. In Friday’s speech, he said his “greatest regret” in the last Congress was not doing more to scuttle Alito.

“Alito shouldn’t have been confirmed,” Schumer said. “I should have done a better job. My colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more.”

While no retirements appear imminent, Bush still could have the opportunity to fill another vacancy on the court. Yet the two oldest members – Justice John Paul Stevens, 87, and Justice Ruth Bader Ginsburg, 74 – are part of the court's liberal bloc and could hold off retirement until Bush leaves office in January, 2009.

Earlier this week, Pennsylvania Sen. Arlen Specter, the Judiciary Committee’s ranking Republican, said he was persuaded by a conversation with Justice Stephen G. Breyer, who spoke with Specter at the Aspen Institute gathering in Colorado this month, to study the decisions of the Roberts Court. The term that ended in June was notable for several rulings that reversed or chipped away at several long-standing decisions, delighting conservatives but enraging liberals.

Breyer has publicly raised concerns that conservative justices were violating stare decisis, the legal doctrine that, for the sake of stability, courts should generally leave precedents undisturbed.

“It is not often in the law that so few have so quickly changed so much,” Breyer said, reading his dissent from the bench in June to a 5-4 ruling that overturned school desegregation policies in two cities.

Schumer said there were four lessons to be learned from Alito and Roberts: Confirmation hearings are meaningless, a nominee’s record should be weighed more heavily than rhetoric, “ideology matters” and “take the president at his word.”

“When a president says he wants to nominate justices in the mold of [Antonin] Scalia and [Clarence] Thomas,” Schumer said, “believe him.”