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Continuing in my inquiry into what particular senators themselves think are appropriate or inappropriate questions for Supreme Court nominees, let me switch the focus to the Democratic side of the aisle for a moment.  Our subject today is Senator Charles Schumer.  Schumer held hearings on this subject in 2001, in which he made clear that he believes that "an open, honest and aboveboard consideration

of a nominee's judicial ideology ultimately benefits the Senate 

and the nominee, by keeping the inquiry focused on issues of 

substance rather than falling prey to the type of 'gotcha 

politics' that has unfortunately emerged over the past few 

decades."

Schumer also wrote an article in the Harvard Law and Policy Review in 2007, in which he said that "Senators have an obligation to scrutinize the character and philosophies of judicial nominees, and nominees have an obligation to cooperate."  He said that Senators are entitled to "ask[ ] tough and specific questions and [to use] the tools at their disposal to demand answers."  "The Senate," he said, "ought to be more vigilant in asking these questions and, just as importantly, in demanding answers." 

 

What does that mean for Senator Schumer?  It suggests that he believes he has a positive obligation to ask such questions of Elena Kagan -- and, just as importantly, that he believes she has an obligation to answer these questions.  It is not clear from these few remarks whether he believes there are any limits on the kinds of questions he believes nominees can be asked and must answer.  I will assume he believes there are some limits.  But clearly, he is in a poor position to complain if his colleagues ask substantive questions of nominee Kagan, or to demand that they simply defer to the President's choice of nominee.  

Note, incidentally, that I think Schumer is right on the whole when he says that focusing on substance rather than character, or on flyspecking aspects of a nominee's record, may have the genuine advantage of steering confirmation hearings away from "gotcha politics."  It is odd, then, that he later said that senators have an obligation to scrutinize the "character and philosophies of judicial nominees."  The two remarks were separated in time by some six years, but there is a patent inconsistency there.  Still, the overall tenor of his views is clear: if his colleagues focus on substantive matters and ask tough questions along these lines, he has no grounds for complaint.  He may criticize them for being inconsistent, but not for asking the questions themselves. 

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