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 epublicans
are in high dudgeon about the treatment of Judge Charles Pickering,
whose nomination to an appeals court was defeated by ten Senate
Democrats in a party-line vote of the Judiciary Committee. But Pickering
was treated badly by both parties. Democrats made scurrilous attacks
on him, and Republicans did not defend him until it was too late.
The Democrats
themselves seem to be somewhat embarrassed by their tactics, as
witness their efforts to squirm away from them. Sens. Charles Schumer
and Patrick Leahy insist that nobody ever insinuated that Pickering
was a racist. Of course not: When Terry McAuliffe said that President
Bush was trying to "disenfranchise" black voters in Mississippi
by nominating Pickering, it was all in good fun. Liberal columnist
E. J. Dionne Jr. admits that "the anti-Pickering campaign did
get ugly," but his spin is that Democrats ended up opposing
him on defensible grounds-e.g., the fact that his decisions have
been "so often reversed on appeal." Except that this fact
is not a fact at all: Pickering's reversal rate is lower than the
average in his circuit or in the nation.
Late in the
day, liberals-notably Sen. Dianne Feinstein of California-also made
the argument that Bush had no mandate and therefore should not be
allowed to stack the courts with conservatives. (She also took the
curious view that Pickering would be able to overturn Roe
v. Wade from a circuit court of appeals.) The pattern of
attack is the same one exhibited in the confirmation hearings for
attorney general John Ashcroft last year: First, a few scattered
decisions are used to portray the nominee as anti-black; once the
poison has been released into the atmosphere, its very existence
is denied.
The Democrats
do not really believe that Pickering (or Ashcroft) is a racist,
of course; in 1990, Pickering was unanimously approved for the district
judgeship he now holds. But he was a target of convenience, being
a white male Republican from Mississippi of a certain age, as Ashcroft
was a target of convenience as a white male fundamentalist Christian.
By voting down Pickering, Democrats handed the president (and Pickering's
friend Trent Lott) a defeat; elicited donations for liberal interest
groups; and sought to make the president think twice before nominating
conservatives, or at least opponents of liberal orthodoxy on abortion,
in the future.
The Democratic
onslaught caught Republicans napping. The White House viewed Pickering
as Lott's concern and intervened too late. Senate Republicans were
little better, becoming engaged only when it was fairly clear Pickering
was going down. Byron York's reporting for National Review Online
did more to counter Democratic distortions than any of them did.
Even now, they are focusing on procedural rather than substantive
issues. They are quite right to chastise the Democrats for not allowing
a full Senate vote on Pickering. But the more important point is
the need for constitutionalist judges.
Bush should
not bow to the Democrats' intimidation by refraining from nominating
such judges. The Democrats' demand for "moderate" judges
is in any case phony. The federal judiciary is still, on balance,
an instrument of the Left. Moderate judges in the context of the
liberal legal academy are those who overturn laws in favor of liberal
whims only some of the time, and who allow previous acts of liberal
usurpation from the bench to stand.
The public
is neither enamored of liberal judges nor afraid of conservative
ones. If the Democrats want to keep blocking the latter, Bush should
call their obstruction to the attention of voters in the Senate
races this fall.
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