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a move that could restart a struggle that many observers —
and some participants — thought was over, Republicans are planning
a renewed battle this week over the nomination of Charles Pickering
to a place on the Fifth Circuit Court of Appeals. There is even
some discussion that President Bush will become personally involved
in the fight, perhaps by making an appearance with Pickering or
making a public statement on his behalf.
While it is
not clear that the Pickering nomination can be saved at this very
late date, there seems to be an awakened spirit among some in the
GOP that a defeat would be seriously damaging for President Bush
— not because Pickering is an indispensable man, but because
a Democratic victory would embolden the president's enemies to press
ever harder to defeat more judicial nominees, including those for
the Supreme Court.
"We intend
to fight specifically for Judge Pickering because we feel he is
the best qualified man for that position, but there is also a higher
principle involved," says a White House source. "Good
nominees shouldn't have to go through the kind of character assassination
that Judge Pickering has been through, and we should not let people
who are opposed to one ideology or another dictate who sits on the
federal judiciary."
For the moment,
however, the Pickering nomination is considered all but dead. One
leading Democrat on the Senate Judiciary Committee has said that
all ten Democrats on the committee intend to vote against Pickering.
In addition, some Senate Republicans who have been deeply involved
in past confirmation battles have stayed on the sidelines during
this fight. And appearing on NBC Sunday, Senate Majority Leader
Tom Daschle attempted to put an end to already-slim GOP hopes that
the Pickering nomination might still receive a vote in the full
Senate, even if it is rejected in the Judiciary Committee. When
Meet the Press host Tim Russert asked, "If the committee
votes 10 to 9 against [Pickering], is the nomination dead?"
Daschle responded tersely, "It is."
Nevertheless,
some Republicans believe there is still hope for Pickering. This
is their scenario: The nomination will indeed be voted down in committee,
with all ten Democrats voting against Pickering and all nine Republicans
voting for him. At that point, Republicans will make a motion to
send the nomination to the full Senate with no recommendation or
with a negative recommendation. The committee would then take a
vote on that motion. If Democrats stay together and vote the motion
down, the nomination will be officially dead. But Republicans believe
there might be hope of convincing — or pressuring or horse-trading
with — one Democrat into voting to send the nomination to the
floor. If that were to happen, Pickering would likely be confirmed,
because at two Democrats have said they would support him in a floor
vote.
While their
chances of victory are not clear, some Republicans are promising
a hard-fought, behind-the-scenes campaign to move Pickering to a
full-Senate vote. "He's not going down," says one Hill
Republican of Pickering. "There's going to be a fight."
But why now?
If Republicans really wanted to win Pickering's confirmation, why
weren't they better prepared when he faced intense Democratic attacks
at his second confirmation hearing on February seventh? Why had
they not responded more energetically to the charges against Pickering
in the weeks leading up to that hearing? Why, after all that, make
a last-second stand when it might be too late to win?
The answer
appears to lie in a growing Republican perception that the fight
for Pickering far transcends Pickering himself. Some Republicans
were deeply struck on February 24, when Democratic Sen. Dianne Feinstein,
a member of the Judiciary Committee, resurrected the Democratic
contention that the narrowness of Bush's victory in the 2000 election
disqualifies him from appointing conservatives to the bench. "President
Bush did not have a large mandate," Feinstein said. "There
is no mandate, in my view, to skew the courts to the right. And
so I think you're going to see a Judiciary Committee that's really
going to be looking for mainstream judges, and those judges that
they find outside of the mainstream I do not believe will have Democratic
support."
Feinstein's
words were an across-the-board challenge to Republicans, and the
White House in particular. Using the kind of rhetoric that has not
been heard since the contentious days after the Supreme Court decided
the case of Bush v. Gore, Feinstein made clear that
Pickering will be just the first of many confirmation fights. Now,
although it seems to have taken a few days to sink in, Feinstein's
challenge has made a profound impression on Republicans. "The
Constitution gives the president the mandate to choose judges,"
says a White House source. "If the Democrats see the need to
change the Constitution, that's something they need to take up with
the American people."
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