Sunday, December 10, 2006

Chaos in the Judiciary

Focus on the Family recently ran two episodes of their radio program entitled "Chaos in the Judiciary" (Part 1; Part 2) in which host Jim Dobson interviewed retired justice Charles Pickering.

Pickering was nominated twice by George W. Bush to the United States Court of Appeals. Both nominations were unsuccessful, though Bush did make a temporary recess appointment of Justice Pickering.

Justice Pickering's lack of confirmation by the Senate is important for three reasons and I'm glad Focus on the Family and Justice Pickering are reminding the American Public of these reasons.

1. Change of Constitutional & Historical Precedent

Had a confirmation vote been taken in the Senate, Pickering would have been confirmed. However, his confirmation vote was filibustered by Democrats, and so, as a result, the vote never occurred. Prior to the Bush presidency a filibuster had never been used to prevent confirmation of a judicial nominee. As former Majority Leader Bill Frist commented in November, 2004:

The current Minority has filibustered 10 -- and threatened to filibuster another 6 -- nominees to federal appeals courts.

This is unprecedented in over 200 years of Senate history.

Never before has a Minority blocked a judicial nominee that has majority support for an up-or-down vote on the Senate floor.


Now the Minority says the filibuster is their only choice, because the Majority controls both the White House and the Senate. But that fails the test of history.

The same party controlled the White House and the Senate for 70 percent of the 20th Century. No Minority filibustered judicial nominees then.

Howard Baker’s Republican Minority didn’t filibuster Democrat Jimmy Carter’s nominees.

Robert Byrd’s Democrat Minority didn’t filibuster Republican Ronald Reagan’s nominees.

Bob Dole’s Republican Minority didn’t filibuster Democrat Bill Clinton’s nominees.

Now there’s nothing specific in the formal Rules of the Senate that restrained those Minorities from filibustering. They simply used self-restraint.

Those Senators didn’t filibuster, because it wasn’t something Senators did.

Furthermore, there is a strong constitutional argument against using a filibuster to prevent a confirmation vote, based on understanding Article II, Section 2, paragraph 2 of the Constitution through the clarification of Hamilton's Federalist 66:

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE -- they can only ratify or reject the choice of the President.

Hamilton clearly lays out the Constitution's intent for two choices: ratify or reject. Filibustering ratification or rejection simply isn't presented as an option. The Constitution additionally clarifies it's intent by specifying the Senate's ratification of treaties requires a super majority of two-thirds, while leaving judicial appointments at a simple majority. Allowing appointments to be filibustered effectively changes this so that judicial appointments require a super majority of 60 votes.

2. Pickering's Record Was Viciously Maligned

During his nomination, Pickering's record was drastically mis-represented.

He was made out to be a racist.

As Pickering explains in the first Focus on the Family episode though:

They used that burning cross [case Pickering heard] ... to paint me as a unreconstructed racist, which was totally contrary of what my record was ...

[Details of the case, in which the Reno Justice Department sentenced two out of the three defendants to no jail time...]

[The Reno Justice Department] came back and plea-bargained with him and [the convicted defendant] agreed he would not appeal his conviction and he would not appeal his sentence, that whatever sentence I gave him, he would serve. I sentenced him to 27 months. [The Reno Justice Department] had offered him 18 months. ... I sentenced him to 27 months which was 50% more time than they offered him. And how could I be soft on a cross burner if I sentenced him to 50% more time!?

In fact, not only was Pickering not a racist, but in the 1960's, testimony he gave led to him being the target of the Ku Klux Klan. He also sent his children to a 70% black school. And during his Appeals Court confirmation, he had the support of civil rights leader Charles Evers.

Pickering was also made out to have a high rate of being over-turned on appeal and various other mis-characterizations, also all untrue.

What was most appalling was that it wasn't just liberal blogs leading this campaign of slander against Pickering. Even Senator Chuck Schumer accused him of "glaring racial insensitivity".

3. A Bad Precedent Against Future Christian Judicial Candidates

It's generally understood that this campaign against Pickering's confirmation came about because of his personally held pro-life views which he holds as a result of his Christian beliefs. This is not to imply that Pickering was opposed to holding to the established rule of law (that he would rule in a manner that accounted for the Supreme Court's finding in Roe v. Wade).

This, in addition to the apparent Constitutional violation of requiring more than a simple majority for a judicial nomination, is a clear second Constitutional violation, as the Constitution clearly states:

No religious test shall ever be required as a qualification to any office or public trust under the United States

Here, clearly, Pickering was denied confirmation because of his conservative Christian views. This can not continue.

Additional links Focus on the Family provides:

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