Editorial Memorandum: Hearing Strengthens Case Against Judge Charles Pickering's Confirmation; Testimony Highlights Problems with Nominee's Record as Judge and State Senator

The Federal Appellate Courts and the 5th Circuit

At Pickering's hearing, Senator Feinstein said that in a sense, the seat to which Pickering has been nominated is "as important as a Supreme Court seat." She observed that the 5th Circuit during the 1960s and 1970s was considered a trailblazer in protecting individual rights and dismantling systemic segregation, and that the 5th Circuit today dismally fails to live up to the legacy of its predecessors.

People For the American Way had previously noted that the 5th Circuit has the largest minority population of any circuit - 42 percent - and that the Circuit has already issued decisions limiting civil rights protections and eroding reproductive freedom, making a nominee's record and positions on civil rights and choice particularly important.

In addition, during Pickering's hearing, Senator Durbin noted that 75 percent of President Clinton's nominees to the 5th Circuit during his 2nd term were blocked. Only one was confirmed; the three others were never even granted a hearing.

That record reflects the success of an unprecedented ideological blockade erected around the appeals courts by right-wing senators during the last six years of the Clinton administration. Urged on by Religious Right organizations and their political allies, senators like Trent Lott, John Ashcroft and Orrin Hatch waged an extraordinarily aggressive campaign to keep qualified Clinton nominees off the appellate courts. From 1995-2000, 35 percent of Clinton's appeals court nominees were blocked. Not one of them received so much as a vote. And 45 percent of his appeals court nominees did not get a vote in the Congress in which they were nominated. In contrast, during the 12 years that Presidents Reagan and George H.W. Bush placed hundreds of conservative judges on the federal courts, progressive groups opposed only a handful of lower court nominees, respecting Senate tradition that such nominees were generally evaluated on qualifications and character, though judicial philosophy was considered in a some extreme cases.

The right-wing blockade was remarkably successful in perpetuating appeals court vacancies. Currently, seven of the 13 federal circuit courts are dominated by Republican appointees, four by Democratic appointees and two are tied. When current vacancies are filled, the number dominated by Republican appointees will be 11 of 13. And by the end of this presidential term, it could be all 13. That makes it critically important that President Bush nominate and the Senate confirm mainstream judges who can win genuine bipartisan support.

Given the success of the GOP blockade of 1995-2000, and the devastating impact that a right-wing judiciary would have on our rights and liberties - and those of our children and grandchildren - it is critically important that the Senate carry out its constitutional responsibility to carefully scrutinize nominees, especially to the appellate courts. And it is appropriate and essential that the Senate Judiciary Committee reject right-wing judges like Charles Pickering.

Because GOP senators dramatically changed the rules and shattered Senate tradition regarding appeals court nominations during the Clinton administration, we are facing an unprecedented situation that calls for an unprecedented bipartisan solution. President Bush must work closely with senators from both parties in order to bring forward more moderate judges, and the Senate should continue to give priority to processing those nominations.

As more than 200 law professors explained in a letter to the Senate Judiciary Committee last July, no federal judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the lives of all Americans, and because of the Senate's co-equal role with the President in the confirmation process, nominees should demonstrate that they meet such criteria as an "exemplary record in the law" and a "record of commitment to the progress made on civil rights, women's rights, and individual liberties." Based on these criteria, the Senate Judiciary Committee should vote to reject Charles Pickering's elevation to the 5th Circuit.

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