A LITMUS TEST FOR LITMUS TESTS:
Why The Pickering Nomination Will Indicate Whether Bush Can Get Conservative Judges Confirmed

By JOHN W. DEAN

Friday, Mar. 01, 2002

President Bush has nominated Judge Charles Pickering, a Mississippi federal district court judge, for a seat on the U.S. Court of Appeals for the Fifth Circuit (which includes Mississippi, Louisiana and Texas). The nomination invites a partisan showdown, and its outcome will determine if the Bush Administration can carry out its plans to pack the federal judiciary with conservative judges. If Pickering is seated, then Bush will be able to pretty much put anyone he wants on any federal court, including the Supreme Court.

Judge Pickering's supporters claim he is a lovable Atticus Finch character. His opponents, however, see a far different man. They believe Judge Pickering is a bigoted, Bible thumping, anti-abortion jurist with a racist background, who has been untruthful in his confirmation hearings about both his past and his dubious judicial ethics - and whose qualifications to serve on the appeals court are far from stellar.

Neither side's claims are completely baseless. Accordingly, special interest groups on the right and left are hurling accusations at each other across their ideological divide as they mobilize their forces, while editorial pages are taking positions.

Underlying the character charges and counter-charges, however, is the undisputed fact that Judge Pickering is a right-wing ideologue. Thus, the subtext underlying this debate concerns whether President Bush can proceed to tilt the federal judiciary in the conservative direction, or whether Senate Democrats can successfully block him from doing so.

Several decades ago, President Nixon tried to appoint conservative Southern judges with less than outstanding records to the Supreme Court. But the Senate rejected the nominations of Clement Haynsworth and G. Harold Carswell. Their successful opposition limited the ability of Richard Nixon to pack the Supreme Court with "strict constructionists." Similarly, the vote on Judge Pickering will determine whether President George W. Bush can pack the entire Federal judiciary as he sees fit.

The showdown is imminent. It may prove historic.

A Question of Qualifications, and A Wall of Solid Democratic Opposition

The Washington Post has called Pickering a judge "of no particular distinction." Many others agree.

Why, then, is Pickering being considered for a position on the second highest court in the land? The answer is that his nomination is sponsored by Senate Republican Leader Trent Lott. These fellow Mississippians are old friends, and Lott wants Pickering on the Fifth Circuit not only for this reason, but also because Pickering can be counted on to vote the "right way" on all causes conservative.

A fight is brewing over Pickering's nomination. Vermont Democrat and Senate Judiciary Committee Chairman Patrick Leahy has told Senator Lott that Pickering does not have enough support to be even voted out of his committee and sent to the full Senate for consideration. There are ten Democrats and nine Republicans on the Senate Judiciary Committee, giving the Democrats a slim but crucial majority on the Committee.

Moreover, the Democratic majority is reportedly solidly opposed to Pickering. Besides Leahy himself, that majority purportedly consists of Senators Edward M. Kennedy (MA), Joseph R. Biden, Jr. (DL), Herbert Kohl (WI), Dianne Feinstein (CA), Russell D. Feingold (WI), Charles E. Schumer (NY), Richard J. Durbin (IL), Maria Cantwell (WA), and John Edwards (NC). Senator Feinstein surmised on NBC's "Meet the Press" that there will be a unanimous Democratic vote against Pickering by her committee colleagues.

Forcing Pickering's Nomination Out of Committee

Still, there is one way Senator Lott may get the nomination out of committee - and if he does, many believe the full Senate would vote to confirm Pickering.

The Senate Judiciary Committee was scheduled to vote on the Pickering nomination on February 28, 2002. But at Lott's request, Leahy agreed to postpone the vote, as a courtesy. Now Lott is threatening to force the nomination out of the committee by employing a rarely used type of motion before the full Senate - a motion to discharge the committee of further responsibility for the nomination of Judge Pickering.

While discharge petitions are common in the House of Representatives, they are almost unknown in the Senate. Yet the Senate Rules provide that during the Senate's "morning hour" - the two hours set aside by the standing rules at the start of each new legislative day for introduction of bills, resolutions and votes on non-debatable motions - any Senator can introduce a motion to discharge a committee. After being held for one legislative day, discharge can be voted on. It requires only a simple majority to succeed.

Before Senator James Jeffords left the Republican party, giving the Democrats a one vote majority, the Senate was split 50/50. Accordingly, Democratic Leader Tom Daschle and Republican Leader Lott had agreed to use a discharge motion should any committee find itself locked in a tie vote. When the Senate Judiciary Committee tied 9-9 on the nomination of Solicitor General Ted Olson, a discharge motion was used to bring the nomination to the floor. The Daschle-Lott deal is, of course, no longer applicable now that the Senate is controlled by the Democrats. Yet Lott may try to use a discharge motion nevertheless.

Discharging A Judicial Nomination Would Be Unprecedented and Historic

In my four decades of Senate watching, I know of no instance in which the Senate Judiciary Committee has been discharged of responsibility for a judicial nomination. It would be unprecedented for Lott merely to file the motion and a historic first if it succeeded. It would be tantamount to a vote of "no confidence" by a majority of the Senate in the work of one of its committees - a slap in the face and a terrible precedent combined.

Might Lott use this tactic? It is possible. In 1968 the Republicans shattered a long tradition, and filibustered the nomination of Justice Abe Fortas to become Chief Justice. They have been known to push the envelope to get their way. Pickering's nomination hardly seems worth such a precedent-shattering ploy, and ruthless power play, but Lott may nevertheless be personally and ideologically invested enough to attempt it.

Could Lott muster a majority of the Senate to support such an unprecedented action? It is very difficult to believe. In addition, such a move would provoke a sufficient number of outraged Senators to join in a filibuster to block any effort to bring the Pickering nomination to a vote. At least, I think that would be the case. .

The Senate Judiciary Is Likely to Send A Message To the Administration

Hopefully, this story will end with the Senate Judiciary Committee, and the Pickering nomination will not reach the full Senate. If so, the Committee will send a very clear message to the White House.

During the Clinton administration, the Republican-controlled Senate Judiciary Committee of the Republican-controlled Senate sent a similar message: We will defeat or simply ignore any judicial nominees whom we do not believe are moderates. As a result, when Clinton failed to send such nominees, remarkably, several were never even given a hearing.

The result? The Clinton administration's judicial nominees, it is widely agreed, were largely moderate, centrist Democrats - and even included several moderate Republicans. Professor Robert Carp, a political scientist at the University of Houston, reported after studying the Clinton appointees that they were virtually all "moderates. Somewhat more liberal than Reagan and Bush appointees, but [all] more conservative than LBJ and Carter."

A Divided Government Can Lead to the Best Federal Judges

Professor Carp also noted that in his estimation, "the best sets of judges in the 20th century are [those appointed by] Eisenhower and Clinton." The assertion is an interesting one - for while both Presidents served eight-year terms, neither ever enjoyed the benefits of having a Senate controlled by his own political party.

If Carp's evaluation is correct, it seems that when a President is - as President Bush is now - forced to deal with a politically divided government, the quality of his judicial appointees may markedly increase. Automatic confirmation may be not a luxury, but a threat; it tends to send the political hacks and ideologues onto the bench, and keep the better jurists off.

I know from firsthand experience, that notwithstanding his sentiments to the contrary, Richard Nixon was forced to select judges who were centrists, moderates, and well qualified. (Nixon did slip in William Rehnquist, but the Senate had no idea about his conservativism.) The reason was that, like Eisenhower and Clinton, Nixon faced a Senate controlled by the other party.

In short, nothing could be better for the prospects of the federal judiciary than Judge Pickering's remaining where he is - as a Mississippi federal trial judge. That is not only because Pickering's is a mediocre nomination and a conservative ideologue, but because using a discharge motion to force his nomination to the full Senate would set a terrible precedent.

One can only hope that no such motion is employed, and that the Senate Judiciary Committee's vote against Pickering's elevation to the Fifth Circuit Court of Appeals will send a message to the White house: It must send judges of distinction, who are moderates - or no judge who is sent to the Senate will be confirmed.

The Senate has a Constitutional obligation to advise and consent. That includes the prerogative to reject nominees who do not pass muster, or, as the Republicans argued during the Clinton years, to decline even to consider them. If the Bush White House doesn't listen to the Judiciary Committee's message on Pickering's nomination, hopefully the Senate Judiciary Committee will simply keep repeating it.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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