The Pickering Nomination
Jude Wanniski
March 18, 2002


Memo To: Sen. Breaux [D-LA]
From: Jude Wanniski
Re: Better Luck Next Time

Yes, President Bush’s nomination of Judge Charles W. Pickering, Sr., of Mississippi to a lifetime appointment to the U.S. Court of Appeals was blocked by your fellow Democrats who serve on the Judiciary Committee. I see you think it is wrong for them to do so, and that if you were on Judiciary you would not only vote to recommend him to the full Senate for confirmation, but would happily vote to confirm. That’s clear enough and I appreciate your honesty in that regard, as I agree completely with you on all counts. Pickering seems to be a worthy man and the arguments raised against him on qualifications and track record seem frivolous. What I really appreciated, watching you on FoxNewsSunday, was hearing you DEFEND your fellow Democrats! Brit Hume thought he saw a way to drive a wedge between you and your colleagues, but you insisted they had every right to take the action they did, and that you believed they did it in good conscience, but not in a vengeful, “payback” way, and not to impose a litmus test on federal judgeships.

The reason Pickering has been rejected is that the Democrats in Judiciary have the votes to do so. As far as I can see, Judge Pickering is a fine man and has a good record on civil rights, and if he did not, Senate Minority Leader Trent Lott would not have advanced the nomination. There has been a great deal of talk about precedence, other nominations in the past either being voted down and yet reported to the Senate floor, or not. But all that discussion means very little when compared to the results of the 2000 election. Yes, the Republicans retained control of the House of Representatives by a handful of votes, but the House is not involved at all in the judicial confirmation process. The role is reserved for the Senate, and while the electorate technically voted control to the Republicans, Senator Jim Jeffords switched parties when he was mishandled by the party leadership. I was not happy to see him switch parties, but I could see why he did, and decided that the GOP had to live with the result. When it comes to the 2000 presidential race is where I come down on your side. President Bush did not get a mandate to do much of anything when he lost the popular vote by a significant margin and won the electoral vote by a decision of the U.S. Supreme Court.

What I mean to say, Senator, is that the razor thin margin by which George W. Bush was elected President, courtesy of the voters and the help of the Supreme Court, requires that he be scrupulously careful in selecting federal judges at every level of the court system. When Senator Don Nickles points out that Republicans supported President Bill Clinton and confirmed a big bunch of judges in his first two years, he failed to point out that Clinton won the presidency by a very comfortable margin over the incumbent President George Bush, Sr. When it is pointed out that President Reagan had his judges confirmed, it should be pointed out that he won in 1980 by a good margin and that the Senate, which confirms judges, went to the Republicans by a very big swing. The voters clearly wanted the kinds of judges President Reagan was nominating. The same is true of President Clinton’s nominees, only one of whom was not confirmed, for good reason it appeared to me.

If I were President Bush, I would let the Pickering nomination lie, and not nominate another man or woman to the Court of Appeals in that district. We are close enough to the congressional elections to see how they come out before a decision has to be made on that count. If Republicans win control of the Senate, they can organize and the Judiciary Committee will quickly send the Pickering nomination to the Senate floor and he will be confirmed. If the Democrats retain control of the Senate, the Pickering nomination will expire. It will not mean that the political process works poorly because a good man is nominated and not confirmed, for partisan reasons. Partisan reasons are important. Voters who are the bedrock of the system are the most partisan, the foundations of the two-party system. Other independent voters provide the bottom line, but the bedrock is critical, and in that light I can truly appreciate your sound defense of the Judiciary Democrats on the Pickering nomination, even though you and I disagree with it on the merits.