The Coming Battle
jose soplar
Byron York
Last year Democrats killed two Bush judicial nominees. This year,
they'll be back.
resident Bush is preparing to re-fight one, and perhaps two, of the
most-contentious judicial-confirmation battles of the last year,
according to sources both in the administration and on Capitol Hill.
In response, Democrats are preparing to use the controversy over
former Senate Majority Leader Trent Lott to again accuse a Bush
nominee of "racial insensitivity."
This week the White House will renominate the judicial candidates who
were selected in the president's first two years in office but whose
nominations were not acted on by the Senate. Most of those will be
routine, but sources say the White House will renominate Priscilla
Owen to a place on the Fifth Circuit Court of Appeals and is also
likely to renominate Charles Pickering to a place on the same court.
Both the Owen and Pickering nominations were killed in 2002 by
Democrats who at the time controlled the Senate Judiciary Committee.
Both were defeated by straight party-line votes. Now, with the Senate
in Republican hands, the nominations, if resubmitted, would likely be
approved by the committee and sent to the full Senate for votes.
"I suspect [the White House will renominate] Owen for sure, and
Pickering, I believe they will," incoming Judiciary Committee chairman
Orrin Hatch told National Review Online Friday. "But the Lott thing
has clouded that."
Hatch was referring to widely expected Democratic efforts to use the
controversy over Lott's remarks about Strom Thurmond's Dixiecrat
presidential race against Pickering, a U.S. District Court judge in
Mississippi who is a close friend of Lott. During the Pickering fight,
Democrats focused on a decision Pickering made in a 1994 cross-burning
case. (See "Behind the Democrats' Attack."). In that crime, a group of
white men set fire to a cross in the front yard of a mixed-race couple
in southern Mississippi. The Clinton Justice Department gave a no-jail
plea bargain to one man, while another faced significant time in
prison. Pickering discovered that the man who had been let off was in
fact the ringleader of the crime — he had a history of racial animus
and had actually fired a shot into the couple's home on another
occasion — while the man who faced jail time, while clearly guilty of
taking part in the cross burning, was not the leader and had no
history of racially-motivated acts. Pickering believed the case
represented a problem of disparate sentencing and complained to
Justice Department officials. In the end, the man served a shorter
time in prison than the Justice Department originally wanted. The
ringleader, by virtue of his deal with the Justice Department — the
deal that angered Pickering — remained free.
At the time of his nomination, Democrats cited the case in an attempt
to portray Pickering as going easy on a cross burner. Now, with his
renomination in the works — and with the Lott controversy fresh in
mind — they are doing it again. In a December 17 letter to President
Bush, New York Democrat Charles Schumer wrote, "As I said when I voted
against Judge Pickering, I do not believe the man is a racist. But
especially given the troubled history of race in America, his conduct
in the cross burning case was astonishing. I struggle to understand
how this White House could support a nominee who showed such awful
judgment and gross insensitivity in such a sensitive matter."
"Obviously, these circumstances were troubling when the committee
first considered Judge Pickering," Schumer continued. "Given Senator
Lott's recent remarks, they are even more troubling now. When Judge
Pickering engaged in extra-legal maneuvering and improperly intervened
to reduce the sentence of a convicted cross-burner, he displayed the
same insensitivity found in Senator Lott's remarks. That alone should
disqualify Judge Pickering from being promoted to the Fifth Circuit."
It does not take a crystal ball to see that the entire Pickering
confirmation battle will be re-fought if the White House chooses to
renominate him. That is one reason some sources believe that, while
the White House will ultimately renominate Pickering, it will not do
so immediately but rather wait a few weeks or even months. "I think
right now the fire is still hot," says one Republican. "He was clearly
Lott's pick, and if the administration is smart and going to send
Pickering over, they would wait a few months."
One key issue is whether there will be another hearing for Pickering.
He received two hearings before being voted down by Democrats on March
14, 2002. If he is renominated, it is not clear whether there will be
yet another hearing.
"I would like to avoid further hearings," says Senator Hatch, although
he believes Democrats will insist on another session. The decision is
the chairman's to make, and while he does not want another hearing,
Hatch is acutely aware of Republicans' slim margin of power on the
committee — and the Democrats' remaining clout. An agreement between
Hatch and outgoing chairman Patrick Leahy ensures that both sides will
have equal funding, and Republicans, like Democrats before them, will
have a one-vote majority. "If you want to get people through," Hatch
says, "you've got to ruffle as few feathers as you can, especially on
a committee like Judiciary."
Finally, a renomination of either Pickering, Owen, or both could raise
institutional conflicts between the Senate and the White House. Party
considerations aside, both nominations were killed by the Senate
Judiciary Committee, which not only voted them down but also voted
against sending them to the full Senate with a neutral or a negative
recommendation. The body designated by the Senate to deal with
nominations made a clear decision.
In a statement given to NRO, Leahy spokesman David Carle said,
"Senator Leahy has said that the President has the right to nominate
anyone he wants to nominate and that it is up to the President to
decide whether to renominate Judge Pickering and Judge Owen. If that
happens, it then would raise institutional issues that the Senate
itself would have to resolve."
Hatch says he sees no problem with the renominations. "Not at all," he
says. "The Constitution says the Senate shall confirm, not the Senate
Judiciary Committee." Nominees who were defeated in committee on
straight party-line votes, Hatch explains, should receive a chance for
a vote in the full Senate. If that happens, Hatch believes both
Pickering and Owen would be confirmed. "I think they should be," Hatch
says. "But you never know."
http://www.nationalreview.com/york/york010603.asp