Is Pickering Dead?
Republicans appear ready to fight, although it may be too late.

March 4, 2002 12:35 p.m.

n 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."