Editorial Memorandum: Opposition to Judge Pickering and Charges of Irresponsiblity and Race-Baiting

Public interest groups and Democratic senators have acted inappropriately and have degraded the confirmation process.

The Facts

Not only is the statement false, but it also ignores the fact that the true degradation of the confirmation process has come from right-wing Senate Republicans, who successfully erected an unprecedented ideological blockade around the appeals courts 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. Also, as Senator Durbin noted during Pickering's February 7 hearing, 75 percent of President Clinton's nominees to the Fifth Circuit during his second term had been blocked. Only one was confirmed; the three others were never even granted a hearing. 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 especially important that President Bush nominate and the Senate confirm mainstream judges who can win genuine bipartisan support. It also makes it essential that a nominee's record be carefully scrutinized. That is what has happened here, by our organizations and by Democratic senators on the Judiciary Committee. This is not a degradation of the process. Indeed, it is what is necessary and appropriate as part of the process to ensure that individuals appointed to lifetime positions on the Courts of Appeals have the necessary qualifications to be there.

Federal appellate court nominations are critically important. Because the Supreme Court hears fewer and fewer cases each year (fewer than 90 last Term, compared with nearly 30,000 last year by the federal courts of appeal), the appeals courts frequently are the court of last resort when it comes to protecting civil and constitutional rights. Indeed, at Pickering's February 7 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 Fifth Circuit during the 1960s and 1970s was considered a trailblazer in protecting individual rights and dismantling systemic segregation, and that the Fifth Circuit today dismally fails to live up to the legacy of its predecessors. The Fifth Circuit has the largest minority population of any circuit - 42 percent - and 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.

As more than 200 law professors stated in a letter sent to the Senate Judiciary Committee last summer, no judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the rights of all Americans, and because of the Senate's co-equal role with the president in the confirmation process, nominees must demonstrate that they meet the appropriate criteria. These criteria include an "exemplary record in the law," an "open mind to decision-making," a "commitment to protecting the rights of ordinary Americans," and a "record of commitment to the progress made on civil rights, women's rights and individual liberties."

Given what is at stake, and given the unprecedented situation created by the six-year blockade of the appellate courts, it is our right and our obligation as citizens to examine carefully this nominee's record against these criteria and to express any legitimate concerns about that record to the public and to the Senate. Indeed, history shows that those who exposed the right wing judicial philosophies of such Supreme Court nominees as Robert Bork and Clarence Thomas were guilty, if anything, of understatement.

Share this page: Facebook Twitter Digg SU Digg Delicious