Cultural Revolutions

Ideology in Judicial Selection?

President Bush, many of us believed, was preparing to appoint a set of jurists committed to the rule of law to the federal bench, but this has been thrown into doubt by Senator Jeffords leaving the Republican party. One of the immediate results of that move, which threw committee control of the Senate to the Democrats, was a set of hearings presided over by New York's senior senator. Democrat Charles Schumer, on what he called "ideology" and its role in judicial selection.

Orthodox legal thinkers believe that ideology plays no role in judicial selection, because the only criteria that should be considered when selecting judges are their character, their knowledge of law, and their commitment to deciding cases as the law dictates. Thus, the two first witnesses—Lloyd Cutler, White House counsel to Jimmy Carter and Bill Clinton, and Boyden Gray, White House counsel to the first President Bush and presumably an advisor to the second — seemed to surprise Senator Schumer at the first of these hearings, held June 26, when they argued that it was wrong to consider ideology in judicial selection.

Cutler and Gray, as spectacularly accomplished eminences grises, were allocated a whole panel to themselves, the opening act in the Washington mini-drama. Perhaps the second panel at the hearing (of which I was a member) was more what Senator Schumer desired. Three of our panelists—Marsha Greenberger,...

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