That’s why the GOP’s right wing rose up in dismay to condemn Thursday’s partisan vote in the Senate Judiciary Committee which killed the nomination of Mississippi Judge Charles Pickering to the Fifth Circuit Court of Appeals. Until recently, few people outside the Beltway had heard of Pickering. Now he is the new hero of the Right, the latest victim of what conservatives believe is unfair ideological bias. Senate minority leader Trent Lott called the defeat a dress rehearsal for future Supreme Court nominations, and said that the Democratic majority would never approve a pro-life, conservative man of faith. Should they? “The idea that the president should have his way and be able to tilt a lifetime branch of government his way is like trying to make the dynasty of Bush the 41st and Bush the 43rd into a permanent dynasty,” Harvard professor of constitutional law Laurence Tribe told NEWSWEEK.
President Bush made a half-hearted attempt to rescue the nomination, phoning at least one Democrat on the Judiciary Committee, New York Senator Charles Schumer, to ask that Pickering be given a vote before the full Senate, where White House counters believe he would have won by six votes. But Pickering was Lott’s choice, and Bush expended only a minimal amount of political capital in what was clearly a losing cause.
Score one for the Democrats. They stuck together and defeated a nominee who is to the right on all the major social issues of the day. But in winning the battle, they may have lost the war–the war of public relations. Pickering has been widely cast as the victim of character assassination. Liberal opponents portrayed him as a “throwback” to the Old South, a racially tinged comment that lent credence to the idea that the attack on him was personal.
But the battle was really about Judge Pickering’s rulings over the past 10 years, which reveal a lack of sympathy toward civil-rights, workers’ rights and civil liberties; and his open advocacy in the early 1970’s as a conservative activist in getting anti-abortion language into the Republican party platform. The question for Democrats is how much leeway Bush should get in choosing lifetime judges. Does ideology matter? Or should the president get to name whoever he wants as long as they pass ethical muster?
There are plenty of good reasons why Pickering did not deserve a promotion, from his unethical intervention with the Justice Department on the sentencing of a cross-burner to his rounding up of endorsement letters for his nomination from lawyers whose cases he regularly decides. Republicans portrayed these matters as technicalities and said Democrats were unfairly holding Pickering accountable for things he had written 40 years ago in a radically different racial environment.
How far the Senate should go in its “advise and consent” role is always a matter of dispute. Tribe says ideology matters, and that the Senate should pay attention to the way in which judges interpret the legal puzzles in deeply divisive issues like abortion and race. “Asking the Senate to play a potted plant is really ridiculous,” he says. Open debate about the issues that drive court appointments would have the added benefit of avoiding “ridiculous sideshows about character and personality,” says Tribe.
After months of inactivity on the nomination, Bush and chief of staff Andrew Card made a pro-forma attempt to lobby Democrats to change their mind. “It was more a showing of the flag than anything serious,” says a Senate source. All 10 Democrats on the Judiciary Committee had announced their opposition to Pickering. “Why do you call people who have already publicly stated their position?” says a Senate Democrat. “They were idiots not to realize this nominee was in trouble weeks ago. You get them when they’re undecided. Isn’t the art of politics giving everyone a graceful way out?”
The White House may have played this nomination all wrong, but more important is the lesson they take away. Will they work harder next time ramming through an unpopular nominee? Or will they conclude they should send up nominees who are more mainstream and more likely to win confirmation?
Senate Democrats discovered they have a backbone, but that they have to be extra careful to make their case on judicial merits so the other side can’t characterize negative votes as character assassinations. There was ample reason for Democrats to vote against confirming Clarence Thomas to the Supreme Court based on his rulings and his judicial philosophy. Yet it seemed to come down to whether he rented pornographic films or had made sexually harassing comments to women. In an extraordinary “open letter to Judge Pickering” published in the Wall Street Journal, Thomas’s wife, Virginia, relates an account where one of the women associated with the liberal groups who tried to prevent her husband from being confirmed “told me she hadn’t realized we were human.”
When the Republicans held the majority for six years during the Clinton administration, they were smarter about avoiding personal fights. Not that they were kinder, they simply didn’t grant hearings to many of Clinton’s nominees, killing them under the radar; so to speak.
Republicans are talking about setting up a “war room” for future nominees. If we ever get back to a time when presidents choose judges for their broad vision without respect to how they’re likely to vote on unsettled questions like abortion, then maybe the Senate won’t need to be quite so vigilant. But as long as a president is picking judges in order to advance one side or another on the fundamental social issues of the day, there will be more Pickering-like battles.
