Pickering and Choosing
Judge Charles Pickering was treated badly by both parties.

By NR Editors
March 20, 2002 2:05 p.m.

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.