GOP Surrender
Republicans accept the expected death of the Charles Pickering nomination.

March 8, 2002 8:50 a.m.

or 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.