[Congressional Record Volume 148, Number 19 (Thursday, February 28, 2002)]
[Senate]
[Pages S1342-S1343]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              NOMINATIONS

  Mr. SPECTER. Mr. President, I have sought again recognition to 
comment on the pending nomination of District Court Judge Charles 
Pickering who is up for consideration for the Court of Appeals for the 
Fifth Circuit. I had spoken briefly on this subject yesterday and had 
stated my intention to support Judge Pickering because he is a 
different man in 2002 than he was in the early 1970s when he was a 
Mississippi State senator.
  The world has come a long way in the intervening 30 years. Attitudes 
have evolved. Judge Pickering has evidenced his sensitivity to civil 
rights issues. He has been praised broadly by people who know him from 
Laurel, MS, for taking on the leader of the Ku Klux Klan in a way which 
was physically endangering to Judge Pickering himself.
  I noted yesterday, and I think it worth commenting today, the votes 
probably will not be there to send Judge Pickering from the Judiciary 
Committee with an affirmative vote. It looks to me as if it will be a 
party-line vote of 10 to 9. Regrettably, there is a great deal of 
partisan politics in the way judges are confirmed by the Senate. 
Regrettably, that is a practice regardless of which party is in control 
of

[[Page S1343]]

the White House and which party has control of the Senate.
  When President Clinton, a Democrat, was in the White House, sending 
over nominations, I expressed my personal dissatisfaction at the way 
they were handled by the Republican-controlled Senate, Republican-
controlled Judiciary Committee. I crossed party lines and voted for 
Judge Paez, Judge Berzon, Judge Gregory, and the nomination of Bill 
Lann Lee. Now we have the situation reversed: A Republican President, 
President George W. Bush, and a Judiciary Committee controlled by 
the Democrats.

  It is time for a truce. It is time for an armistice. We ought to sign 
a declaration if necessary to set forth a procedure to take partisan 
politics out of judicial confirmations. That is present very decisively 
with Judge Pickering. There is an element expressed by some members of 
the Judiciary Committee on the so-called litmus test, with some people 
believing that unless a judicial nominee is willing to endorse Roe v. 
Wade on a woman's right to choose, that individual should not be 
confirmed to the Supreme Court--really, an effort to place Roe v. Wade 
on a level with Brown v. Board of Education. But it is clear no one can 
be confirmed today who said Brown v. Board of Education should be 
reversed.
  When the nominees are questioned before the Judiciary Committee, they 
frequently will say: I won't answer that question; it is a matter which 
may come before the court. That is customarily accepted. If someone 
were to say that about Brown v. Board of Education, not affirming that 
conclusion--that the decision ending segregation is a vital part of 
America--I think that person could not be confirmed. To establish that 
standard for Roe v. Wade I think is very contentious, but that awaits 
another day.
  The issue of taking partisan politics out of judicial selection is 
one with us right now. Earlier this week, Judge D. Brooks Smith, who is 
a chief judge of the U.S. District Court for the Western District of 
Pennsylvania, a person recommended for that position by Senator Heinz 
and myself back in 1988, was confirmed and is now up for the Court of 
Appeals for the Third Circuit. Although not as heavily overlaid as 
Judge Pickering's confirmation was, there is an element of partisanship 
as to Judge Smith. I believe he has answered the questions adequately, 
and I am cautiously confident he will be confirmed.
  It is my hope that if I am right--hopefully, I am not right and Judge 
Pickering will be confirmed by a majority here--if it turns out to be a 
vote along party lines, I am hopeful the Judiciary Committee will send 
Judge Pickering for action by the full Senate. There is precedence for 
that. Judge Thomas was not recommended by the committee and received a 
tie, 7-to-7, vote. That meant it failed. But by a 13-to-1 vote, the 
Judiciary Committee sent Judge Thomas, who was then a circuit judge, to 
the Senate, where they voted 13-to-1 that the full Senate should 
consider him. The full Senate confirmed him 52 to 48.
  Judge Bork received a negative vote of 5 in favor and 9 against, and 
then on a motion to send to the floor, Judge Bork got 9 votes that the 
full Senate should consider him, with 5 members of the Judiciary 
Committee dissenting.
  In the old days, we used to have the Judiciary Committee bottleneck 
civil rights litigation, stopping it from coming to the floor.
  I believe on the judicial nominations with the overtones of 
partisanship, this is a matter which ought to be decided by the full 
Senate. I urge my colleagues to give consideration that in the event 
there is not an affirmative vote in committee, at least Judge Pickering 
ought to have standing to have the full Senate consider his nomination.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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