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On the September 22 edition of Fox News' Special Report with Brit Hume, Roll Call executive editor Morton M. Kondracke claimed that Sen. Charles E. Schumer's (D-NY) decision to vote against the nomination of John G. Roberts Jr. to replace the late William H. Rehnquist as chief justice "violated the standard" that Schumer had originally stated would determine his vote. But Kondracke falsely characterized Schumer's stated standard as consisting of only one condition for him to support the nominee -- that the nominee's judicial philosophy be in the mainstream. In fact, Schumer clearly laid out a second condition -- that the nominee answer questions "fully" and "forthrightly."
During the "Fox News All-Star Panel," Kondracke claimed that Schumer had said he would vote in favor of Roberts if sufficiently convinced that "he would not be an extremist and if he was in the mainstream." Schumer "violated" this standard in voting against the approval of Roberts' nomination, Kondracke argued, because Schumer "implied" during the Senate Judiciary Committee executive session on September 22 that "on lots of issues he [Roberts] might be in the mainstream."
But in his opening statement on the first day of the hearings on the Roberts nomination on September 12, Schumer laid out a standard that required that the nominee satisfy two conditions, not simply one:
SCHUMER: Judge Roberts, if you want my vote, you need to meet two criteria. First, you need to answer questions fully so we can ascertain your judicial philosophy. And second, once we have ascertained your philosophy, it must be clear that it is in the broad mainstream.
Judge Roberts, if you answer important questions forthrightly and convince me that you are a jurist in the broad mainstream, I will be able to vote for you. And I would like to be able to vote for you. If you do not, I will not be able to vote for you.
Moreover, in his statement during the September 22 executive session, Schumer said that Roberts, in his "failure" to answer the committee's questions, had not met the first of these criteria:
SCHUMER: Mr. Chairman, the answering of questions is extremely important. As I've repeatedly said, long before Judge Roberts' nomination, there's an obligation of nominees to answer questions fully and thoroughly because they are essential to figuring out a nominee's judicial philosophy and ideology -- to me, the most important criteria for choosing a judge. Many of us were disappointed in his failure to answer questions. And it's one of the contributing factors to the "no" votes that will be cast this morning and next week on the floor.
Indeed, a "yes" vote here from me might indicate acceptance not only of a nominee's strategic decision to avoid answering important and proper questions about decided cases, but also an administration's decision to refuse to let the American people have important information about a nominee in the form of important documents.
Now, as I've heard my good friend from Texas, Senator [John] Cornyn, repeat, "If we can't vote for this nominee, who could we vote for?" Here's your answer: Someone who answers questions fully and who makes his or her record fully available. Someone who gives us a significant level of assurance, with some answers in a record, that he or she is not an ideologue.
Kondracke had similarly misrepresented Schumer's standard a week earlier, on the September 15 edition of Special Report, but was corrected by host Brit Hume and fellow panelist and National Public Radio (NPR) national political correspondent Mara Liasson at the time:
KONDRACKE: He [Schumer] doesn't know how to vote on him [Roberts]. But look, Schumer laid down a marker that said that if it was not an extremist and a mainstream conservative, that he would probably have to vote for him. Now, if you look at the burden of what Roberts said, and you might say the penumbra of what he said, he is clearly not a right-wing ideologue, a literalist, an originalist, or whatever you call it. He says he's a modest -- believes in modest judging. And under those circumstances, I don't see how he can be declared an extremist. And therefore, and I would think that Schumer, on the basis of what he said, would have to vote for him. Similarly, [Sen. Dianne] Feinstein [D-CA] --
HUME: Remember what Schumer's second condition was, though, Mara?
LIASSON: Which was?
HUME: Which was? That he has to answer all the questions.
LIASSON: That he has to answer all the questions.
When Kondracke again mischaracterized Schumer's standard on the September 22 edition of Special Report, neither Hume nor Liasson corrected him:
LIASSON: That isn't the only thing she [Feinstein] said. She had set the bar. She had said earlier, "I have to know that he's going to uphold a woman's right to choose."
KONDRACKE: That's not what she said.
LIASSON: She did say in her statement, "I can't, in good conscience, cast a 'yea' vote because he didn't prove that he would uphold that."
KONDRACKE: That was not her standard in the beginning. Her standard was that she would not vote to confirm him, if she knew --
LIASSON: If she knew that he was against Roe v. Wade.
KONDRACKE: That he was a vote against Roe v. Wade.
LIASSON: That's right.
KONDRACKE: She cannot say that he'll vote against Roe v. Wade. I was the most -- she was the most disappointing vote of the day, I thought. I think she violated the standard that she initially said that she was going to hold on this. And I think Schumer did too, actually. He said that he thought that a justice should be confirmed if he would not an extremist and if he was in the mainstream.
HUME: If he was in the mainstream, right.
KONDRACKE: In the mainstream, and I think that even Schumer sort of implied on lots of issues he might be in the mainstream.