The Pickering Lesson
Why didn’t Republicans mount a better defense?

March 15, 2002 9:45 a.m.

ay this for Republicans on the Senate Judiciary Committee: They finally mounted a coherent and effective defense for Charles Pickering, the embattled nominee for a place on the Fifth Circuit Court of Appeals. The only problem was, they came up with the defense long after it really mattered, on the day the nomination was killed by committee Democrats in a 10 to 9 party-line vote.

The Republican defense covered the spectrum of allegations against Pickering. But GOP senators were particularly effective addressing one of the Democrats' key arguments: that on more than a dozen occasions Pickering had been, in the words of North Carolina Senator John Edwards, "reversed in unpublished opinions for failing to apply, and I am quoting the circuit court now, 'well-settled principles of law.'"

On Thursday, ranking Republican member Orrin Hatch, citing statistics from the Administrative Office of the U.S. Courts, noted that Pickering's reversal rate, rather than being startlingly high, is in fact lower than the national average. And it is lower than the average of his fellow district court judges in the area covered by the Fifth Circuit. Therefore, Hatch argued, "if you adhere to the argument that a district judge's reversal rate is indicative of his ability to follow the law, then Judge Pickering has demonstrated an ability to follow the law that exceeds that of other district judges both nationwide and in the Fifth Circuit."

But what about the cases in which Pickering was reversed? Were they based on "well-settled principles of law"? Some Democrats had noted that the cases were concentrated in the areas of voting rights, civil rights, employment rights, and prisoners' rights — subject matter that suggested Pickering has been particularly insensitive to the constitutional protections designed for those who need them most. Hatch addressed that charge, too:

In Judge Pickering's sole voting rights reversal, Watkins v. Fordice, the only issues on appeal involved the district court's award of attorney's fees to the plaintiffs. Notably, Judge Pickering was one of three district judges who decided the case as a panel. The Fifth Circuit affirmed the district court panel on every issue on appeal except one: The court's determination of the appropriate hourly rates. The Fifth Circuit did not find error in the district court's determination, but instead found that the district court had not adequately articulated its rationale in setting the hourly rate. The Fifth Circuit "reluctantly remanded" the case to the district court to either award each attorney's customary billing rate or articulate the reasons for its decision to do otherwise.

Hatch concluded: "Is this a reversal due to failure to follow 'well-settled' law, and therefore indicative of hostility to voting rights? The answer is no." Hatch — and, later, Ohio Republican Mike DeWine — went on to list other cases in which Pickering decisions were reversed on non-substantive issues. By the end of their remarks, the "well-settled principles of law" argument lay in ruins.

But the very effectiveness of the Republicans' presentation underscored the enormous mistakes the GOP made in handling the Pickering confirmation battle. Why hadn't they made the case before, when it might have helped save the nomination?

Pickering's reversals have been a key issue at least since January 24, when the liberal interest group People for the American Way released a detailed report criticizing Pickering's record. It had also been raised in other forums well before that. By the time of Pickering's confirmation hearing, on February 14, Judiciary Committee chairman Patrick Leahy was prepared to attack on the issue. "Of your 26 reversals, you were reversed at least 15 times through an unpublished opinion," Leahy said to Pickering. "In other words, the Fifth Circuit said that it was such a well-settled issue that you had committed mistakes as a judge in either not knowing the law or not applying the law in the case before you."

At the time Leahy spoke, Republicans had long been on notice that the cases in which Pickering had been reversed would play a prominent role in the Democratic attack. And a case like Watkins v. Fordice would have been an extraordinarily useful rebuttal to Leahy's charges. Yet it appears that GOP staffers did not read many of the reversed cases, including Watkins, until long after the hearing. Some of the cases were not examined until last weekend. At Thursday's hearing, one aide explained that Republicans on the committee had expected the Justice Department to do that — and, apparently, the Justice Department expected Republicans on the committee to do it. The mix-up would have been funny had there not been so much at stake.

For most Republicans, the reversals fiasco also underscored the need for what is now being referred to as a "war room" to handle future confirmation battles. At several points in the Pickering nomination, Republicans ignored warning signs of growing Democratic opposition, choosing instead to address problems only when it was too late to fix them. To cite the most prominent example, the last-minute flurry of White House lobbying on the subject — featuring the personal involvement of President Bush — came after nearly all Democrats had made up their minds to vote against Pickering.

Even in the final days leading up to the vote, some Republicans cherished the hope that a political deal might be made in which Pickering's nomination would be voted down in committee but then sent to the full Senate, where Pickering would most likely have been confirmed. Those Republicans apparently failed to appreciate the extent to which Democrats had boxed themselves in on the Pickering issue: After voting against him — and telling anyone who would listen that he was a dangerous judge — how could they turn around and cast the vote that would guarantee his elevation to the appeals court? How would they explain that to their liberal support groups?

In coming days there will likely be much discussion among conservatives about the "borking" of the Pickering nomination. And yes, nearly every Democratic charge against Pickering did not hold up under close examination. But Democrats made no secret about their intention to stop Bush judicial nominees, regardless of the nominees' fitness for the federal bench. New York Senator Charles Schumer, for one, has held hearings on the issue and made endless statements about it. Yet in the Pickering case, the White House, the Justice Department, and many Republicans on the Judiciary Committee were woefully unprepared for the attack that came. Now, the question becomes whether they will do better the next time.