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

A Report by People For the American Way


On March 14, 2002, the Senate Judiciary Committee, by a vote of 10-9, rejected the nomination of Charles W. Pickering, Sr. to the United States Court of Appeals for the Fifth Circuit. In the weeks since the vote, the White House, GOP senators, and right-wing pundits have worked to build a mythology that Pickering had been unfairly criticized and rejected by the Senate Judiciary Committee and that there was no substance to the concerns expressed by Democratic senators. Establishing this inaccurate version of events as accepted wisdom is central to the Bush administration's strategy for discouraging and defeating opposition to future right-wing judicial nominees.

On the day of the committee vote on Pickering's nomination, Senator Orrin Hatch sought to dismiss the significant issues raised by Democratic members of the committee as well as those highlighted by People For the American Way and other civil rights and women's rights organizations that opposed Pickering's promotion to the appeals court. In fact, however, Senator Hatch mischaracterized the issues. He failed even to address many of the matters and specific cases cited in People For the American Way's report on Judge Pickering's record. That report and other resources are available at www.pfaw.org/issues/judiciary.

While a number of concerns had been raised about Judge Pickering's record, Hatch on March 14 focused his remarks primarily on the issue of Judge Pickering's reversals. By citing a number of reversed decisions and dismissing their relevance to the nomination, Hatch tried to create the illusion that he was providing a point-by-point rebuttal to People For the American Way and other organizations that had published analyses of Pickering's record and to the concerns expressed by members of the Judiciary Committee. Right-wing commentators and publications like the Wall Street Journal editorial page and National Review are now playing their part, suggesting that Hatch had thoroughly debunked Pickering's critics. This memorandum reviews Senator Hatch's March 14 remarks, particularly with regard to the issue of Judge Pickering's reversed decisions, and demonstrates that they failed to address effectively the serious concerns about Judge Pickering's nomination.

It should be noted that reports on Judge Pickering's record published by People For the American Way, NARAL, the National Women's Law Center, and the Alliance for Justice had been published and widely distributed nearly two full months before the March 14 vote. Democratic senators raised a number of substantive concerns with Judge Pickering during his first confirmation hearing in October 2001and his second hearing on February 7, including questions about his insensitivity to civil rights principles and ethics. If there were serious substantive flaws in those reports and concerns, it seems likely that Hatch would not have waited more than a month after Pickering's second confirmation hearing to launch his limited public "rebuttal" in the moments before the Judiciary Committee vote.

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