Editorial Memorandum: The Demand for a Senate Floor Vote on Pickering: How the Right is Wrong

Introduction

Faced with the likelihood of a Judiciary Committee vote to reject Charles Pickering's nomination to the 5th Circuit Court of Appeals, the White House, right-wing senators and media outlets like the Wall Street Journal editorial page have mounted a campaign to demand that the committee report his nomination to the floor for a full Senate vote, even if it votes to reject him. Senate Minority Leader Trent Lott and others have threatened to filibuster other Senate action or try unprecedented maneuvers to force the nominee to the floor.

In the face of history and Senate tradition, some Pickering proponents are suggesting that the Constitution prevents the Judiciary Committee from rejecting a nominee. Ignoring an agreement reached last year during the switch in Senate control that only Supreme Court nominees would be guaranteed a floor vote, some Pickering supporters are demanding that all judicial nominees be guaranteed a full floor vote. Their arguments ignore and distort the facts.

The function of Senate committees and the role of advice and consent

The great majority of the work in both houses of Congress is carried out in committees. There, a smaller group of members with experience and expertise in a particular area can take the time to consider issues and legislation that come before them.

One of the most important responsibilities of the Senate Judiciary Committee is to evaluate nominees for lifetime positions on the federal courts, in accordance with the constitutional requirement of advice and consent. Committee members and their staff have spent many months examining thousands of pages of documents and reviewing Judge Pickering's record over the past ten years as a federal judge as well as his previous public record.

The ludicrous suggestion made by the Wall Street Journal editorial board that the Constitution requires that the full Senate take action on every nominee is an interpretation that would undermine the Senate's committee structure and the way Congress has long conducted its business.

Judiciary Committee treatment of Pickering and other nominees has been fair

In the 8 months since Senator Leahy became chair, and with the leadership of Senate Majority Leader Tom Daschle, the committee has approved 42 nominees (and the full Senate has confirmed 40). This pace is remarkable given the extraordinary demands placed on the Judiciary Committee in recent months.

Judge Pickering's strongest supporters acknowledge that he has been treated fairly by the Judiciary Committee. Pickering has had two hearings at which to explain his record, and has since had the opportunity to answer additional questions in writing. At the most recent Judiciary Committee meeting, even while Senator Orrin Hatch was denouncing Pickering's critics and requesting a one-week delay in the vote, Hatch reiterated that he believed the confirmation hearing chaired by Senator Feinstein in February had been conducted fairly.

The committee has approved more than 40 of President Bush's judicial nominees, many unanimously. It is clear that the White House and Republican senators are unhappy with the likely outcome of this one vote, but that is hardly reason to suggest that the committee process is broken. And there is no reason to support the argument that the Senate should ignore the committee process and overrule its decision.

In contrast, more than 50 Clinton nominees were not even granted a hearing by the GOP-led Judiciary Committee. Six more who had hearings were not given the courtesy of a committee vote. In fact, 35 percent of Clinton's appeals court nominees were blocked without a vote while the GOP controlled the Senate from 1995 to 2000.

Attacks on Judiciary Committee's role contradict both tradition and recent agreements

When control of the Senate moved into Democratic hands last year, leaders from both parties reached an agreement that all Supreme Court nominees would be sent to the Senate for a vote. The agreement, in recognition of the exceptional role of Supreme Court justices and in accordance with Senate tradition, did not establish the same entitlement for lower court judges, although some Republican senators had argued for one. Losing a vote on one nomination in committee is no justification for the GOP to demand that the rules agreed to less than one year ago be changed now.

Since 1980, six appellate and district court nominees have been voted on in committee and failed to get reported favorably to the Senate. Most of them never got a floor vote. Only 7th Circuit nominee Daniel Manion received a Senate vote and then only because the committee itself voted to send the nomination to the floor. When the committee rejected the nominations of Kenneth Ryskamp (G.H.W. Bush), Jefferson Sessions (Reagan) and Bernard Siegan (Reagan), it did not approve motions to send them to the floor. (The Senate Judiciary Committee agreed in 1988 to send nominee Susan Liebeler to the floor without recommendation, but she never received a full Senate vote.)

The Wall Street Journal's March 12 editorial was flatly wrong when it stated that the Judiciary Committee was controlled by Democrats when it rejected the district court nomination of Jefferson Sessions and "almost managed to kill" the Manion nomination. In fact, both of those came before the committee in 1986 when it was controlled by Republicans. Under both Republican and Democratic control, a defeat in the Senate Judiciary Committee has traditionally meant the end to a nomination. And there is absolutely no precedent for the Senate forcing a floor vote on a nominee after the Judiciary Committee has voted not to forward a nomination to the Senate floor.

Other Distortions of the Truth

The Wall Street Journal quotes Senator Leahy arguing five years ago that it was the responsibility of the Senate to bring nominees up for a vote. But the Journal completely misrepresents his statement, which was made in the context of the extraordinary delays and violations of Senate practices that were all too common when the GOP controlled the Senate from 1995-2000.

Leahy was arguing in particular for a vote for nominee Margaret Morrow, who had been approved by the Judiciary Committee but had been blocked from getting a Senate vote for 7 months; it was another four months before the Senate GOP leadership allowed her to come up for a vote. Leahy was urging the Senate to follow its own procedures, to lift the blockade, and to vote on a nominee who had been already been approved by the committee. It is intellectually dishonest to suggest as the Wall Street Journal does that Pickering's nomination is comparable.

A quote from Senator Biden is similarly taken out of context by the Wall Street Journal. His quote also referred to a lower court nominee who had been reported to the floor by the Judiciary Committee and was being refused a floor vote by the Senate GOP leadership.

It is also intellectually dishonest for the Wall Street Journal and others to claim that no Clinton nominees were killed in committee, a statement that is a masterpiece of misinformation. While it may be true that no Clinton nominees were stopped by an actual vote in committee, dozens were blocked through less open delaying methods by simply never giving them a hearing or a vote. Those methods were championed by many of the same senators who are crying foul now that one nominee appears likely to be rejected by a public vote after two public hearings.

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