Picking on Pickering

In the Right

Tom Daschle should meet my parents. Like most members of their species, my parents have a language entirely their own, and of its many expressions, one in particular would be appropriate for the Senate Majority Leader’s ears. It goes like this: “If you want to be treated like an adult, you have to act like one first.”

Last week, by killing Judge Charles Pickering’s nomination to the United States Court of Appeals for the Fifth Circuit, Daschle and his sidekick, Judiciary Committee Chair Pat Leahy, proved themselves to be this nation’s most politically powerful adolescents. And as though indicating that such childishness would be rewarded in kind, Trent Lott announced his own plan to block the nomination of a former Daschle aide to the Federal Communications Commission.

The 10 to 9 partisan vote that ended Pickering’s nomination was juvenile in that Democrats behaved like a pack of schoolyard bullies. Instead of giving Pickering a fair hearing, they ganged up to vilify him as “racist”—a charge entirely unsubstantiated by his judicial record.

The smear campaign against Pickering began with attacks on a three-page law review article he wrote in 1959 (at the ripe age of 21), in which he suggested a way to strengthen Mississippi’s law against interracial marriages. Never mind that shortly thereafter, in the early 1960s, he prosecuted a popular Ku Klux Klan leader and lost re-election because of it. Apparently all that matters is the few hundred words he wrote over 40 years ago. (Advice for Harvard law students: avoid writing, lest someone clobber you over the head with your juvenescent opinions a generation from now.)

Critics of Pickering’s record on race also pointed to a 1994 cross burning case in which he encouraged prosecutors to seek a lighter sentence for one of the defendants. The critics, of course, told only half the story. What they failed to mention is that the individual in question had played a much smaller role in the crime than one of his co-defendants, who copped a plea and was charged with a misdemeanor. Pickering’s aim was not to defend cross burning, but to express concern for the apparent injustice of sending a lesser criminal to prison for seven and a half years while the ringleader got off with no jail time at all. In the end, Pickering sentenced the man to 27 months in prison, saying, “the type of conduct that you exhibited cannot and will not be tolerated...You did that which does hinder good race relations and was a despicable act.”


These are hardly the words of a racist judge. In fact, Pickering’s record not only refutes the charge of racism, but suggests he is an especially capable jurist. As Judiciary Committee member Orrin Hatch argued last Thursday, Pickering’s reversal rate is lower than both the national average and the average for district court judges in the Fifth Circuit. And, as Hatch noted, almost all of the matters on which Pickering was reversed were minor issues unrelated to the substance of the case (such as the precise determination of legal fees to be paid by a losing defendant to the plaintiff).

So why did Pickering get picked on? At least one Democrat was straightforward about the reasoning behind his vote. The New York Times reports that Charles Schumer admitted that Pickering was “a decent and honorable man and certainly not a racist.” But Schumer went on to explain that the vote was about demonstrating the unacceptability of “stack[ing] the courts with Scalias and Thomases.”

Here we see the Democrats’ real motive. Although partisan politics have influenced judicial nominations before, Daschle’s Democratic leadership is especially determined to exclude any judges whose ideology differs from their own. Senate Democrats defend themselves by noting that 40 of President Bush’s 92 judicial nominees have been approved (not itself a very encouraging number), but they neglect to mention that the majority of these approvals were of nominees to lower-level district court positions. According to the Wall Street Journal, of Bush’s 29 appeals court nominees, only a paltry seven have been approved. That is especially alarming given that the Judicial Conference of the United States has deemed 11 of these openings “judicial emergencies.” Yet despite the fact that many of the nominees have received “well-qualified” ratings from the American Bar Association, hearings have not even been scheduled for most of them.

The real outrage of Pickering’s defeat, however, is not Daschle’s special brand of partisan uncooperativeness. Rather, it is the fundamentally antidemocratic tactics of Daschle’s leadership. I say “antidemocratic” because if Pickering’s nomination hadn’t died in committee, it likely would have been approved in a Senate floor vote, with as many as three Democratic Senators willing to break party ranks and support Pickering. Instead, the wiles of 10 senators managed to keep the democratically elected body invested with Constitutional authority to approve or reject judicial nominations from doing just that.

And no, Republicans do not have a similar history of killing nominations in committee. Of Clinton’s nominees to the federal bench, only Ronnie White was defeated—through a floor vote of the whole Senate, in which a majority voted against him. The last three nominees defeated in committee—in 1991, 1988, and 1986—all met their demise at Democratic hands.

Ultimately, Daschle’s shenanigans will backfire, as Trent Lott’s planned retaliation demonstrates. While such nomination wars are not the behavior we hope for from our senators, it is worth remembering who started the fight. Lott is only meeting Daschle on his own childish terms.

Which brings me back to my parents’ phrase. If Daschle continues to bully Bush’s nominees, he can only expect similar treatment from Republicans. Alternatively—and to the advantage of his party, the judicial system and the democratic process—he can begin to act like an adult.

Jason L. Steorts ’01-’03 is a philosophy concentrator in Dunster House. His column appears on alternate Fridays.