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days leading up to Thursday's business meeting of the Senate Judiciary
Committee, Republicans had been trying to come up with some sort
of deal that would move the federal appeals-court nomination of
Charles Pickering to a full Senate vote even if Democrats, as expected,
voted against him in committee. The hope was that one Democrat —
some Republicans were looking longingly at Delaware Sen. Joseph
Biden — might be convinced to side with Republicans on a motion
to send the nomination to the full Senate, where Pickering would
likely be confirmed.
That didn't
happen; if Republicans had come up with some miraculous plan to
save Pickering, they surely would have unveiled it Thursday. Instead,
they used a procedural privilege to postpone the vote until next
week. Their thinking is simple: Why do it now? Perhaps something
totally unexpected will happen in the coming week to help Pickering
along. And if it doesn't, then at least defeat is put off for seven
more days.
The procedural
work took about ten seconds to finish. After that, committee senators
were free to move on to other work. But instead, after a bit of
complaining by ranking Republican Orrin Hatch — he called the
attacks on Pickering a "lynching," a term which even some
Republicans found inappropriate — both Republicans and Democrats
spent the better part of an hour in a meandering and occasionally
emotional group-therapy session, anguishing together over the state
of the judicial confirmation process.
Pennsylvania
Republican Arlen Specter told the committee that he and Biden, who
often ride home together on Amtrak's Metroliner, have had several
discussions on the train about the contentious relations between
committee Republicans and Democrats over judicial nominations. Specter
said that both he and Biden were very concerned about the issue
and wondered what they could do about it. The answer they came up
with was to consider coauthoring a law-review article on the subject.
Of course,
that wouldn't do anything for the nominee at hand. "Maybe it's
too late for Judge Pickering," Specter said. "But I hope
we'll declare a truce." Specter then floated a proposal for
a new committee rule that would automatically send a nomination
to the Senate floor if it was defeated on a straight party-line
vote. No one spoke up in support.
Then it was
Biden's turn. First, he dashed Republican hopes by making clear
that he won't do anything to help Pickering — and a week's
delay in the vote, he said, is "not going to change my mind."
But Biden cautioned fellow Democrats about being too doctrinaire
on judicial nominations. In particular, he warned women's groups
who have sought to make a nominee's personal beliefs about abortion
a litmus test for confirmation. "Be careful what we wish for,"
Biden said. "Be very, very, very, very, very careful for the
precedent that we establish here." Biden warned that if such
a litmus test became a reality and then Republicans were to retake
control of the Senate, it would be "a cold day in hell"
before pro-choice candidates were confirmed. Still, Biden said he
would vote with women's groups on the Pickering nomination; he just
wanted them to know that he reached his decision independently.
Then Kentucky
Republican Mitch McConnell spoke up. McConnell said he might like
to join the Specter/Biden law-review writing group because he, too,
was very worried about the confirmation process. "We're on
the verge of an institutional crisis here," said McConnell.
"I fear we are inching toward a place where no one can be confirmed."
McConnell, his tone nearly funereal, said little about the merits
of the Pickering nomination.
Later, Kansas
Republican Sam Brownback added that he, too, would like to see more
study of the process, especially in light of "this train wreck
we're headed into." During this time, some Democrats nodded
appreciatively. But they insisted that their consideration of Pickering
had been fair, and some called on the Bush White House to come up
with more "moderate" nominees.
Almost lost
in all the talk was the stark fact that Democrats, barring some
kind of parliamentary miracle by the GOP, stand ready to kill the
Pickering nomination next week. Given those circumstances, there
was something almost surreal about the Republicans' participation
in such a high-minded colloquy. It was like a wrongly condemned
man having a collegial discussion of the death penalty with his
executioner.
The whole thing
left some Republican observers appalled. Why weren't Republicans
— Hatch aside — in more of a fighting mood? Why weren't
they just plain mad? "The more hell we raise this time, the
harder it becomes to crucify the next guy," one GOP official
said. "Instead, we got lulled into this 'Let's all have a group
hug' discussion. We got out-politicked."
And whatever
the talk of law-review articles and institutional crises, the fact
remains that next week, after the Pickering nomination goes to its
expected death, George W. Bush will be 0 for 1 in judicial confirmation
fights. Pickering's will become the first nomination to be killed
in committee in eleven years, since Democrats killed the first George
Bush's nomination of Kenneth Ryskamp to a place on the 11th Circuit
Court of Appeals in 1991. Before that, in 1988, was Bernard Siegan,
nominated to the 9th Circuit. Before that was Susan Liebeler, also
in 1988, nominated to the Federal Circuit. Before that, in 1987,
was Robert Bork, nominated for the Supreme Court.
By next Thursday,
Charles Pickering's name will most likely be added to that list.
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