Editorial Memorandum: The Right's Revisionism on the Defeat of the Pickering Nomination

Reviewing the Nominee's Record

It is important to comment on Senator Hatch's unwarranted attack on the members of the Judiciary Committee who insisted that Judge Pickering make his unpublished opinions available for Committee review, something Hatch called part of "calculated fishing expeditions." In Judge Pickering's 11 years as a district court judge, he had published fewer than 100 of the approximately 1,100 opinions that he himself estimated he had written in that time. The very notion that members of the Committee could responsibly and in an informed manner exercise their constitutional obligation to review this nominee's record without access to the vast majority of his judicial rulings is extremely troubling. Those decisions were unquestionably relevant to his qualifications to sit on the court of appeals. For example, all but four of Judge Pickering's reversed decisions were unpublished by him. Characterizing the careful review of a nominee's judicial record as a "fishing expedition" is not only patently inaccurate but also contradicts Senator Hatch's own previous statements, when he was chair of the Judiciary Committee, about the importance of thoroughly reviewing nominees' records. The Committee's thorough and diligent review and action on Judge Pickering's nomination warrants commendation, not the criticism leveled by Senator Hatch.

It should also be noted that several GOP senators have suggested that Pickering was being criticized for not publishing the majority of his opinions when, in their opinion, he should have been lauded for his publishing restraint. In fact, the primary concern raised about those opinions was not the fact that he had declined to publish them but that his nomination should not be pushed through without giving committee members a chance to review the bulk of his record as a federal judge.

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