[Congressional Record Volume 148, Number 25 (Friday, March 8, 2002)]
[Senate]
[Pages S1694-S1695]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. SPECTER. Madam President, I have sought recognition to comment 
briefly on the pending nomination of Judge Charles Pickering for the 
circuit court of appeals, which was heard by the Judiciary Committee 
yesterday, with the vote postponed until next week.
  I support Judge Pickering because I think Judge Pickering, in the 
year

[[Page S1695]]

2002, is an appropriate nominee for the circuit court. If Charles 
Pickering were still a State Senator in the 1970s, I would vote against 
him because his civil rights record at that time was not good. But 
today he is a different man. This is a different time.
  The opposition raised against Judge Pickering, in large measure, is 
about what he was as a Mississippi State Senator in the 1970s.
  It is my hope that at a minimum we will send Judge Pickering's 
nomination to the floor of the Senate for a vote by the full Senate. 
The Constitution provides for confirmation by the Senate--not by the 
Senate Judiciary Committee. There are solid indicators that if Judge 
Pickering reached the floor, there would be 51 or more votes for his 
confirmation.
  When you take into account an analysis of the comments within the 
beltway by those who oppose Judge Pickering vociferously, and those in 
Mississippi who know him best, they are for him. Those who talk about 
him in Mississippi talk in specifics about how he took a courageous 
stand against a leader of the Ku Klux Klan, about how he sided with an 
African American who was a defendant in a case where there was a white 
victim, something which was frequently not the case in the South.
  This may be a warmup for the next Supreme Court nomination. We have 
already seen some indicators of that with some members of the Judiciary 
Committee saying that a litmus test should be applied, and, if a 
nominee will not pledge to uphold Roe v. Wade, that nominee is not 
appropriate for confirmation.

  This is an effort, in effect, to equate Brown v. Board of Education 
on segregation, with Roe v. Wade. It is obvious that if someone did not 
support Brown v. Board of Education and desegregation, that person 
would not be considered fit for the Federal bench today. But to apply a 
litmus test more broadly is very troublesome, in my opinion.
  It is my hope that if Judge Pickering receives a negative vote in 
committee along party lines, which seems almost certain, that at a 
minimum he would be sent to the floor for full floor consideration.
  We ought to establish a truce--an armistice--on the partisan in-
fighting which has been ongoing on nominations. When we had a Democrat 
in the White House and a Republican-controlled Senate, it was the 
mirror image of what we have today with Republican President Bush in 
the White house and a Senate Judiciary Committee in the Senate 
controlled by the Democrats. I said the same thing when we had 
President Clinton in the White House and a Republican-controlled 
Senate. I crossed party lines to vote for Judge Paez and Judge Berzon, 
Judge Gregory and Bill Lann Lee for Assistant Attorney General for the 
Civil Rights Division.
  It is my hope that we will establish a protocol.
  I think Senator McConnell was right when he said yesterday in the 
Judiciary Committee hearing that we are facing an ``institutional 
crisis.''
  The American people do not like the partisan bickering--Democrats 
versus Republicans--especially when it comes to the selection of 
Federal judges and there is a judicial emergency in many circuits.
  It is my hope that we will move ahead to try to end this 
partisanship.
  There is solid precedent for submitting nominees to the full Senate 
when there is a negative or tied vote in committee. Judge Bork was 
defeated 8 to 5 in committee. Yet his nomination was sent to the floor 
for consideration as a Supreme Court nomination.
  Justice Clarence Thomas had a tie vote in the committee of 7 to 7, 
but by a vote of 13 to 1 his nomination was sent to the floor.
  Six nominees for district court or circuit courts have been sent to 
the full Senate when they did not receive an affirmative vote in 
committee--since 1951.
  We still have time to revise the thinking on Judge Pickering. We 
still have time for an analysis on an appropriate way to handle Judge 
Pickering. But I submit that we ought to establish a principle from the 
Judiciary Committee that, if the vote is strictly along party lines, 
the matter be put before the full Senate for consideration.
  I thank my distinguished colleague from New Hampshire for allowing me 
to precede him on the floor.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.

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