After Pickering, what?

Posted: Mar 11, 2002 12:00 AM
WASHINGTON -- Democratic leaders are demonstrating their commitment to abortion-friendly federal appellate judges by refusing to permit the Senate to vote on a highly qualified nominee. The remaining question is whether Republicans have the courage to implement secret retaliatory plans to effectively close down the Senate. Those plans are privately called "going nuclear." A "tactical" nuclear response would be to obstruct Senate committee action. The "strategic" approach would be to halt action on the Senate floor through parliamentary mischief. The White House has given a green light to whatever Senate Republican Leader Trent Lott does. But do Republican senators have the stomach to confront the Democrats? Nobody who knows the Senate doubts that Democrats there are tougher than Republicans. Nevertheless, Democratic imposition of an ideological test on appellate judges is without historical precedent. Senate Majority Leader Tom Daschle and Senate Judiciary Committee Chairman Patrick Leahy have laid down an implacable line: No overt foes of abortion will be granted seats on federal appellate courts -- especially the Supreme Court. Once the defection by Sen. James Jeffords of Vermont last year created a Democratic majority, it was clear Daschle and Leahy intended to leverage that slim advantage for historic consequences. President Bush has been put on notice that all his high judicial selections must be "consensus" choices. That is, no conservative need apply. It was obvious long ago that some Bush appellate nominee would be blocked as a test case. The only surprise was who was chosen: Federal District Judge Charles Pickering, a widely admired figure in Mississippi nominated for the 5th Circuit Court of Appeals. He is the father of an influential sitting congressman and an intimate of his state's bipartisan power elite. He is beloved by former colleagues in the politically powerful trial lawyer community, including Democratic multi-millionaire anti-tobacco lawyer Dickey Scruggs. State Attorney General Michael Moore, normally a partisan Democrat, came to Washington last week to support Pickering. So did prominent black Democrats from his hometown of Hattiesburg. Yet, Pickering's very prestige (he was unanimously confirmed by the Senate for the district judgeship) makes him ideal to be blocked solely on ideological grounds. The signal to George W. Bush: Send up no more judges that are conservative, or they will meet the same fate. It has nothing to do with race, despite the campaign by national black organizations. Sen. John Edwards of North Carolina, one of the solid 10 Democratic members of the Judiciary Committee keeping Pickering's nomination off the Senate floor, corrected me when I mistakenly reported his opposition was racial. Edwards had an aide call to inform me the senator opposed Pickering because he permitted his personal opinions to influence his judicial decisions. Personal opinions about what? Certainly not race. Southern Democrats are wary about probing the segregationist past of their neighbors. Rather, Pickering flunks the abortion test, and Edwards cannot risk his hopes for the 2004 presidential nomination by offending the feminist lobby. When Democratic senators vow no "conservative" justice shall be permitted on the Supreme Court, what they really mean is no anti-abortion justice. Daschle's problem is that Democratic Sen. Zell Miller of Georgia would break party ranks to support Pickering on the Senate floor, probably guaranteeing confirmation. Thus, the nomination must be killed inside the Judiciary Committee, something never done when Republicans controlled the Senate and Democrat Bill Clinton was president. But three judicial nominees of Republican presidents were killed by Judiciary under Democratic control in 1986 (current Sen. Jeff Sessions of Alabama was the victim), 1988 and 1991. Sen. Joseph Biden, as Judiciary chairman, presided over the last such judicial execution. During the Clinton administration in 1997, however, Biden contended every judicial nominee "is entitled to ... have a vote on the floor." Also in 1997, current Judiciary Chairman Leahy said "it is the responsibility of the U.S. Senate to at least bring them to a vote." Biden and Leahy now have abandoned those strictures. Republican senators whine to reporters that President Bush provided too little, too late in helping Charles Pickering. Instead, they should ask themselves whether they will "go nuclear" after Pickering is rejected this week, or bow their heads in humiliating submission.