Schumer’s ploy: Senate hopes to throw nomination off the trail

It is said that in old England, fugitives or poachers would confound pursuing hounds by rubbing a red herring across a trail.

The herring had been turned red by a curing process, and its scent was so strong that not even the finest dog could trail the quarry past the rubbing.

That is why a ploy that is designed to divert attention from an important issue to something spurious is called a “red herring.”

Democratic Sen. Charles Schumer of New York appears to be preparing to pull a red herring out of his bag of tricks to try to confound the Supreme Court nomination of John Roberts Jr.

Schumer is a member of the Senate Judiciary Committee, which will hold hearings on President Bush’s nomination of Roberts. He has indicated that he will demand that the White House hand over internal legal memoranda that Roberts wrote while he worked as deputy solicitor general.

Schumer well knows that presidents don’t publicize internal legal opinions, and that it is almost certain that his demand won’t be met. But getting the opinions is not what Schumer really wants. They are just a red herring.

What he really wants is to create controversy over the nomination.

Some extreme liberals have voiced opposition to Roberts, but so far no one, not even Schumer, has shown any reason why he is not qualified.

The central issue among liberals who dislike Roberts and conservatives who support him is abortion.

Roberts’ public history is ambivalent on the issue:

• He opposed abortion in a court brief that he wrote for the White House while he was a government lawyer. But that was a lawyer’s brief written for a client and did not necessarily reveal his own personal opinion.

• During his confirmation hearings for a Court of Appeals seat, Roberts said the Roe vs. Wade abortion ruling was the law of the land and that he therefore could support it. But that was when he was going onto a lower court that lacked the authority to ignore or overturn Roe vs. Wade. His own opinion — legal and personal — could come into play on the Supreme Court.

As a devout Roman Catholic, Roberts likely opposes abortion personally.

But his personal opinion doesn’t matter. He should be judged only on whether he would apply to each case a true interpretation of the Constitution, based on its meaning as it was written.

Published in Editorials on July 23, 2005 11:38 PM