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Schumer Regrets Not Leading an Alito Filibuster

Sen. Charles Schumer (D-N.Y.) declared that his decision not to lead a successful filibuster in January 2006 of Supreme Court Justice Samuel Alito's nomination was one of his "greatest failings" as a senator.

In an address to liberal legal scholars of the American Constitution Society, Schumer said that after watching the work of the newly constructed "Roberts court" the past 18 months, he would block any future Supreme Court nominee of President Bush's should a vacancy arise between now and January 2009.

Schumer's address covered his views on the confirmation processes for Alito and Chief Justice John Roberts. Conservatives have hailed Roberts and Alito for their rulings and generally have said that their confirmations may prove to be the single lasting legacy of President Bush's second term.

But Schumer and liberals were alarmed by many of the 5-4 rulings that went against their interests, as well as the strong denunciations of the right wing of the court by the elderly liberal wing in its dissents. The Roberts court overturned previous rulings on partial birth abortion and campaign finance reform.

Those and other High Court rulings prompted Schumer's unusually blunt assessment of his own performance in the confirmation process, particularly during the hearings on Alito, who was widely viewed as the more conservative of the two justices. Here's what Schumer said of his own failings:

"Every day, I am pained that I didn't do more to try to block Justice Alito. Every two years, I look back and take stock of my greatest failings and regrets in the past Congress. Without question, my greatest regret in the 109th Congress was not doing more to block Alito. Alito shouldn't have been confirmed. 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."

There was an effort to filibuster the Alito nomination, led by Sens. Edward M. Kennedy (D-Mass.) and John Kerry (D-Mass.), but it did not have the vocal public support of Sen. Harry Reid (D-Nev.), then the minority leader, or Schumer or other members of Democratic leadership. While Reid, Schumer and all four Senate Democrats currently running for president voted to sustain a filibuster, they did little to actively support the idea and sometimes even mocked the effort. Only 25 senators voted to sustain the filibuster, and the next day Alito was confirmed to the seat on a 58-42 vote.

Schumer is an unusually strong willed senator. Such a mea culpa doesn't come out of senators' mouths very often, and almost never from Schumer.

It's unclear when the next vacancy will arise on the court, and, if no health concerns come up, next summer is the earliest such a retirement could come. It's doubtful any liberal justice would retire with Bush still president and the possibility of a Democratic president replacing him or her in 2009, but again, health issues could create a vacancy. Schumer now believes, looking back on Alito and Roberts, that no nominee of Bush's will get confirmed by the Democratically controlled Senate:

"We should reverse the presumption of confirmation. 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. 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."

By Paul Kane  |  July 27, 2007; 5:57 PM ET
Categories:  Senate  
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