[Congressional Record Volume 150, Number 3 (Thursday, January 22, 2004)]
[Senate]
[Pages S170-S173]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          JUDICIAL NOMINATIONS

  Mr. LEAHY. Madam President, we open this year confronted with three 
additional disappointing developments regarding judicial nominations: 
the Pickering recess appointment, the renomination of Claude Allen, and 
the pilfering of Democratic offices' computer files by Republican 
staff.
  Late last Friday afternoon President Bush made his most cynical and 
divisive appointment to date when he bypassed the Senate and 
unilaterally installed Charles Pickering to the U.S. Court of Appeals 
for the Fifth Circuit. That appointment is without the consent of the 
Senate and is a particular affront to the many individuals and 
membership organizations representing African Americans in the Fifth 
Circuit who have strongly opposed this nomination.
  With respect to his extreme judicial nominations, President George W. 
Bush is the most divisive President in American history. Through his 
extreme judicial nominations, President Bush is dividing the American 
people and undermining the fairness and independence of the federal 
judiciary on which all Americans depend.
  After fair hearings and open debate, the Senate Judiciary Committee 
rejected the Pickering nomination in 2002. Originally nominated in 2001 
by President Bush, this nominee's record underwent a thorough 
examination by the Senate Judiciary Committee and was found lacking. 
Rejected for this promotion by the Committee in 2002 because of his 
poor record as a judge and the ethical problems raised by his handling 
of his duties in specific instances, Judge Pickering's nomination was 
nonetheless sent back to the Senate last year by a President who is the 
first in our history to reject the judgment of the Judiciary Committee 
on a judicial nominee. This is the only President who has renominated 
someone rejected on a vote by the Judiciary Committee for a judicial 
appointment.
  The renomination of Charles Pickering lay dormant for most of last 
year while Republicans reportedly planned further hearings. Judge 
Pickering himself said that several hearings on his nomination were 
scheduled and cancelled over the last year by Republicans. Then, 
without any additional information or hearings, Republicans decided to 
forego any pretense at proceeding in regular order. Instead, they 
placed the name of Judge Pickering on the committee's markup agenda and 
pushed his nomination through with their one-vote majority. The 
Committee had been told since last January that a new hearing would be 
held

[[Page S171]]

before a vote on this nomination, but that turned out to be an empty 
promise.
  Why was the Pickering nomination moved ahead of other well-qualified 
candidates late last fall? Why was the Senate required to expend 
valuable time rehashing arguments about a controversial nomination that 
has already been rejected? The timing was arranged by Republicans to 
coincide with the gubernatorial election in Mississippi. Like so much 
about this President's actions with respect to the Federal courts, 
partisan Republican politics seemed to be the governing consideration. 
Indeed, as the President's own former Secretary of the Treasury points 
out from personal experience, politics governs more than just Federal 
judicial nominations in the Bush administration.
  Charles Pickering was a nominee rejected by the Judiciary Committee 
on the merits--a nominee who has a record that does not qualify him for 
this promotion, who injects his personal views into judicial opinions, 
and who has made highly questionable ethical judgments. The nominee's 
supporters, including some Republican Senators, have chosen to imply 
that Democrats opposed the nominee because of his religion or region. 
That is untrue and offensive. These smears have been as ugly as they 
are wrong. Yet the political calculation has been made to ignore the 
facts, to seek to pin unflattering characterizations on Democrats for 
partisan purposes and to count on cynicism and misinformation to rule 
the day. With elections coming up this fall, partisan Republicans are 
apparently returning to that page of their partisan political playbook.
  Never before had a judicial nomination rejected by the Judiciary 
Committee after a vote been resubmitted to the Senate, but this 
President took that unprecedented step last year. Never before has a 
judicial nomination debated at such length by the Senate, and to which 
the Senate has withheld its consent, been the subject of a Presidential 
appointment to the Federal bench.
  In an editorial following last week's appointment, The Washington 
Post had it right when it summarized Judge Pickering's record as a 
federal trial judge as ``undistinguished and downright disturbing.'' As 
the paper noted: ``The right path is to build consensus that 
nonpartisanship and excellence are the appropriate criteria for 
judicial selection.'' Instead we see another dangerous step down the 
Republican's chosen path to erode judicial independence for the sake of 
partisanship and their ideological court-packing efforts. I will ask 
unanimous consent that this editorial be printed in the Record. The New 
York Times also editorialized on this subject and it, too, was correct 
when it pointed out that this end-run around the advice and consent 
authority of the Senate is ``absolutely the wrong choice for one of the 
nation's most sensitive courts.'' I will ask unanimous consent that 
this editorial also be printed in the Record.
  Civil rights supporters who so strenuously opposed this nominee were 
understandably offended that the President chose this action the day 
after his controversial visit to the grave of Dr. Martin Luther King, 
Jr. As the Nation was entering the weekend set aside to honor Dr. King 
and all for which he strived, this President made one of the most 
insensitive and divisive appointments of his administration. I will ask 
unanimous consent that the op-ed published in the Chicago Sun Times by 
the Reverend Jesse Jackson be printed in the Record. In this op-ed, 
Reverend Jackson observed that this President ``has shown a remarkable 
cynicism about playing racial politics.''
  So many civil rights group and individuals committed to supporting 
civil rights in this country have spoken out in opposition to the 
elevation of Judge Pickering that their views should have been 
respected by the President. Contrary to the false assertion made by 
the Wall Street Journal editorial page this week, the NAACP of 
Mississippi did not support Judge Pickering's nomination. Indeed, every 
single branch of the Mississippi State Chapter of the NAACP voted to 
oppose this nomination--not just once, but three times. When Mr. 
Pickering was nominated to the District Court in 1990, the NAACP of 
Mississippi opposed him, and when he was nominated to the Fifth Circuit 
in 2001 and, again, in 2003, the NAACP of Mississippi opposed him. They 
have written letter after letter expressing their opposition. That 
opposition was shared by the NAACP, the Southern Christian Leadership 
Conference, the Magnolia Bar Association, the Mississippi Legislative 
Black Caucus, the Mississippi Black Caucus of Local Elected Officials, 
Representative Bennie G. Thompson and many others. Perhaps the Wall 
Street Journal confused the Mississippi NAACP with the Mississippi 
Association of Trial Lawyers, which is an organization that did support 
the Pickering nomination.

  This is an administration that promised to unite the American people 
but that has chosen time and again to act with respect to judicial 
nominations in a way that divides us. This is an administration that 
squandered the goodwill and good faith that Democrats showed in the 
aftermath of September 11, 2001. This is an administration that refused 
to acknowledge the strides we made in filling 100 judicial vacancies 
under Democratic Senate leadership in 2001 and 2002 while overcoming 
anthrax attacks and in spite of Republican mistreatment of scores of 
qualified, moderate judicial nominees of President Clinton.
  Then, just 2 days ago, the President sent the nomination of Claude 
Allen back to the Senate. From the time this nomination was originally 
made to the time it was returned to the President last year, the 
Maryland Senators have made their position crystal clear. This Fourth 
Circuit vacancy is a Maryland seat and ought to be filled by an 
experienced, qualified Marylander. Over the Senate recess, the White 
House had ample time to find such a nominee, someone of the caliber of 
sitting U.S. District Court Judges Andre Davis or Roger Titus, two 
former Maryland nominees whose involvement in the State's legal system 
and devotion to their local community was clear. This refusal to 
compromise is just another example of the White House engaging in 
partisan politics to the detriment of an independent judiciary.
  The third disappointment we face is the ongoing fallout from the 
cyber theft of confidential memoranda from Democratic Senate staff. 
This invasion was perpetrated by Republican employees both on and off 
the Committee. As revealed by the Chairman, computer security was 
compromised and, simply put, members of the Republican staff took 
things that did not belong to them and passed them around and on to 
people outside of the Senate. This is no small mistake. It is a serious 
breach of trust, morals, and possibly the rules and regulations 
governing the Senate. We do not yet know the full extent of these 
violations. But we need to repair the loss of trust brought on by this 
breach of confidentiality and privacy, if we are ever to recover and be 
able to resume our work in a spirit of cooperation and mutual respect 
that is so necessary to make progress.
  Democratic cooperation with the President's slate of judicial 
nominees has been remarkable in these circumstances. One way to measure 
that cooperation and the progress we have made possible is to examine 
the Chief Justice's annual report on the Federal judiciary. Over the 
last couple of years, Justice Rehnquist has been ``pleased to report'' 
our progress on filling judicial vacancies. This is in sharp contrast 
to the criticism he justifiably made of the shadowy and unprincipled 
Republican obstruction of consideration of President Clinton's 
nominees. In 1996, the final year of President Clinton's first term, 
the Republican-led Senate confirmed only 17 judicial nominees all year 
and not a single nominee to the circuit courts. At the end of 1996, the 
Republican Senate majority returned to the President almost twice as 
many nominations as were confirmed.
  By contrast, with the overall cooperation of Senate Democrats, which 
partisan Republicans are loath to concede, this President has achieved 
record numbers of judicial confirmations. Despite the attacks of Sept. 
11 and their aftermath, the Senate has already confirmed 169 of 
President Bush's nominees to the Federal bench. This is more judges 
than were confirmed during President Reagan's entire first 4-year term. 
Thus, President Bush's 3-year totals rival those achieved by other 
Presidents in 4 years. That is also true with respect to the nearly 4 
years it took for President Clinton to

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achieve these results following the Republicans' taking majority 
control of the Senate in 1995.
  The 69 judges confirmed last year exceeds the number of judges 
confirmed during any of the 6 years from 1995 to 2000 that Republicans 
controlled the Senate during the Clinton presidency years in which 
there were far more vacant Federal judgeships than exist today. Among 
those 69 judges confirmed in 2003 were 13 circuit court judges. That 
exceeds the number of circuit court judges confirmed during all of 
1995, 1996, 1997, 1999, and 2000, when a Democrat was President.
  The Senate has already confirmed 30 circuit court judges nominated by 
President Bush. This is a greater number than were confirmed at this 
point in the presidencies of his father, President Clinton, or the 
first term of President Reagan. Vacancies on the Federal judiciary have 
been reduced to the lowest point in two decades and are lower than 
Republicans allowed at any time during the Clinton presidency. In 
addition, there are more Federal judges serving on the bench today than 
at any time in American history.
  I congratulate the Democratic Senators on the Committee for showing a 
spirit of cooperation and restraint in the face of a White House that 
so often has refused to consult, compromise or conciliate. I regret 
that our efforts have not been fairly acknowledged by partisan 
Republicans and that this administration continues down the path of 
confrontation. While there have been difficult and controversial 
nominees whom we have opposed as we exercise our constitutional duty of 
advice and consent to lifetime appointments on the Federal bench, we 
have done so openly and on the merits.
  For the last 3 years I have urged the President to work with us. It 
is with deep sadness that I see that this administration still refuses 
to accept the Senate's shared responsibility under the Constitution and 
refuses to appreciate our level of cooperation and achievement.
  I ask unanimous consent that the materials to which I referred be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       End Run for Mr. Pickering

               [From the Washington Post, Jan. 18, 2004]

       President Bush's decision Friday to install controversial 
     judicial nominee Charles W. Pickering Sr. on the U.S. Court 
     of Appeals for the 5th Circuit using a recess appointment is 
     yet another unwarranted escalation of the judicial nomination 
     wars. We have lamented some of the attacks on Mr. Pickering, 
     but his record as a federal trial judge is undistinguished 
     and downright disturbing, and Senate Democrats are reasonable 
     to oppose his nomination. Installing him using a 
     constitutional end run around the Senate only inflames 
     passions. The right path is to build consensus that 
     nonpartisanship and excellence are the appropriate criteria 
     for judicial selection.
       The recess appointment--the president's power to 
     temporarily install federal officers without Senate 
     confirmation--is a uniquely bad instrument for federal 
     judges. Judges are supposed to be politically independent. 
     Yet Mr. Pickering will be a controversial nominee before the 
     Senate as he considers cases and will lose his job in a year 
     if he is not confirmed. Even his supporters should understand 
     that he will be subject to the political pressures from which 
     judges are supposed to be insulated.
       We don't rule out the recess appointment in all 
     circumstances. At times judges have commanded such uniform 
     support that presidents have used the power to get them in 
     office quickly, leaving the formality of confirmation for 
     later. We supported, moreover, President Bill Clinton's lame-
     duck recess appointment to the U.S. Court of Appeals for the 
     4th Circuit of Roger Gregory, who, like Mr. Pickering, was 
     held up in the Senate. But there was a big difference: Mr. 
     Gregory was not controversial. His nomination, in fact, was 
     eventually resubmitted to the Senate by none other than 
     President Bush. It was held up initially because of a long-
     standing dispute over appointments to that court, not because 
     of any concerns about the nominee himself. There was reason 
     to hope that Mr. Gregory would be confirmed--as, indeed, he 
     was. In this case, Mr. Bush has used a recess appointment for 
     someone who cannot, on his merits, garner a vote of 
     confidence from the Senate and who has no prospect of 
     confirmation in the current Congress.
       We don't support the filibuster of nominees, but the answer 
     to Democratic obstruction cannot be the appointment or 
     installation of temporary judges who get to hear a few cases 
     over a few months, all the while looking over their shoulders 
     at the senators who oppose them. The great damage the 
     judicial nomination wars threaten over the long term is to 
     erode judicial independence, to make judges constantly aware 
     of how they might have to answer to the Senate for a given 
     opinion. Using the recess appointment to place Mr. Pickering 
     on the 5th Circuit has made that danger into a realty.
                                  ____


                           A Judicial End Run

                [From the New York Times, Jan. 17, 2004]

       President Bush has used the only avenue remaining to him to 
     install Charles Pickering Sr. of Mississippi on the Fifth 
     Circuit Court of Appeals: a recess appointment, which avoids 
     the confirmation process. That recess appointments are a 
     perfectly legal device used by other presidents in the past 
     does not make this appointment any more palatable. 
     Mr. Pickering is absolutely the wrong choice for one of 
     the nation's most sensitive courts.
       Mr. Bush claimed that only a ``handful'' of senators had 
     opposed Mr. Pickering. The opposition was in fact a good deal 
     broader than that.
       Mr. Pickering was rejected in 2002 by the Judiciary 
     Committee when the Senate was still in Democratic hands. When 
     the same committee, in Republican control, approved him last 
     fall, the nomination was blocked by a filibuster. Another 
     attempt on the president's part to win Senate approval of Mr. 
     Pickering's nomination would almost certainly have produced 
     the same result.
       The reasons are clear enough. Over the years, Mr. Pickering 
     has displayed skepticism toward cases involving civil rights 
     and expressed doubts about well-settled principles like one 
     person one vote. The Senate inquiry into the nomination 
     uncovered troubling questions of judicial ethics. Mr. 
     Pickering took up the case of a man convicted of burning a 
     cross on the lawn of an interracial couple, urging 
     prosecutors to drop a central charge and calling a prosecutor 
     directly. He also seems outside the mainstream on abortion 
     rights.
       Mr. Pickering is not the only hard-right candidate Mr. Bush 
     has pushed for high judicial office. But his nomination was 
     among the most troublesome. As Senator Charles Schumer said, 
     Mr. Bush's decision to bypass the Senate in this manner is 
     ``a finger in the eye'' for all those seeking fairness in the 
     nomination process.
                                  ____


                    Bush Insults King's Legacy Again

              [From the Chicago Sun Times, Jan. 20, 2004]

                           (By Jesse Jackson)

       Monday marked what would have been Dr. Martin Luther King's 
     75th birthday. And once more, President Bush chose the 
     occasion to issue a cold and calculated insult to African 
     Americans and Dr. King's memory.
       Last year, the president chose Dr. King's birthday to 
     announce his decision to ask the Supreme Court to overturn 
     our civil rights laws by challenging the University of 
     Michigan's affirmative action program. Despite its 
     conservative majority, even this Supreme Court found that too 
     offensive to constitutional guarantees of equal rights, and 
     ruled against the president's case.
       This year, the president took time from his big-donor fund-
     raising to lay a wreath at Dr. King's grave and call for 
     racial reconciliation. Then after collecting $2.4 million 
     from wealthy beneficiaries of his tax cuts, he announced he 
     would make a recess appointment of Judge Charles Pickering.
       Pickering shares views, history and friendship with 
     Mississippi Sen. Trent Lott, who was removed from leadership 
     of the Senate Republicans after he celebrated the 
     segregationist cause of the Dixiecrats. Pickering, with a 
     history of embracing racist causes, was rejected by the 
     Senate Judiciary Committee when Democrats held the majority.
       Bush renominated him when Republicans took over, but 
     Pickering's views are so extreme that Democrats made him one 
     of only six judges they have blocked. Now the president 
     chooses Dr. King's holiday to announce his symbolic 
     appointment to the bench. From Willy Horton to Charles 
     Pickering, the Bush family has shown a remarkable cynicism 
     about playing racial politics.
       But the true insult to Dr. King's memory is not Bush's 
     symbolic politics; it is the substance of his policies. Here 
     the contrast is stark.
       Dr. King called on America to measure itself from the 
     bottom up, not the top down. As the Bible taught, we should 
     be judged on how we treat the ``least of these,'' not how we 
     cater to the most powerful.
       Even many of Bush's supporters acknowledge he is the 
     reverse: His policies are designed to reward the wealthy and 
     serve the corporate interests that pay for his party. On his 
     watch, we've mortgaged the store to lavish tax breaks on the 
     wealthy, even as support for the poor has been cut, and 
     working people have been abandoned.
       Dr. King devoted his life to fighting against poverty, for 
     peace; against racism, for equal opportunity. In the midst of 
     the Vietnam War, he courageously challenged America's 
     wrongheaded intervention, and warned of the moral poverty of 
     a country that spent more on its military than on its people.
       Bush's priorities are literally the reverse. He has done 
     nothing as poverty has worsened, while finding his 
     ``mission'' in endless wars abroad. He'll spend over $200 
     billion toppling Saddam Hussein, while cutting back on 
     programs designed to give every child a healthy start.
       Dr. King's politics came from his deep and abiding faith. 
     Bush's faith seems defined by his politics. King spoke in 
     pulpit after pulpit challenging the faithful to join the 
     movement for social change. Bush, at his best,

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     goes to churches to preach social service, urging the 
     congregation to accept the status quo and help minister to 
     its victims. Like Moses, King led his people out of 
     oppression. Like Pharaoh, Bush urges people to adjust to 
     their condition.
       Dr. King's legacy is as important today as at his death 
     because things haven't gotten much better. A report by United 
     for a Fair Economy shows racial inequities in unemployment, 
     family income, imprisonment, average wealth and infant 
     mortality have gotten worse since he died. And progress in 
     areas like poverty, homeownership, education, and life 
     expectancy has been so slow it will take literally centuries 
     to close the gap.
       As Americans celebrate Dr. King's birthday and listen to 
     President Bush's State of the Union address tonight, we must 
     remember King's warning of the moral peril of a nation that 
     fails to create opportunity for all of its people.
       No longer do we hear of a War on Poverty, which as Dr. King 
     noted was ``barely a skirmish'' before abandoned for war 
     abroad. Instead, as Dedrick Muhammad, author of the UFE 
     report, observed: We are left with a ``compassionate 
     conservatism, which has been very conservative in its 
     compassion.''
                                  ____


             [From the Wall Street Journal, Jan. 19, 2004]

                        The Pickering Precedent

       President Bush's recess appointment of Charles Pickering 
     Sr. to the federal appeals bench last Friday is a welcome 
     move, not least because it shows he's willing to carry the 
     fight over judicial nominees from here to November. Mr. 
     Pickering will now get the honor of serving a year on the 
     Fifth Circuit Court of Appeals, and at 66 years old might 
     well make this his career coda. The Mississippi judge was one 
     of Mr. Bush's first nominees, in May 2001, and has always had 
     confirmation support from a bipartisan majority of Senators. 
     But he has been denied a floor vote by a minority filibuster 
     orchestrated by Northeastern liberals Ted Kennedy, Hillary 
     Rodham Clinton and her junior New York partner Chuck Schumer.
       Mr. Bush has every right, even an obligation, to use his 
     recess power to counter this unprecedented abuse of the 
     Senate's advice and consent power. A filibuster has never 
     before in U.S. history been used to defeat an appellate court 
     nominee, but Democrats have used it against six of Mr. Bush's 
     choices. All of them have enough bipartisan support to be 
     confirmed if they could only get a full Senate vote.
       One of the more despicable elements of the anti-Pickering 
     smear has been the use of the race card, even though the 
     judge has the support of the African-Americans who know him 
     best, including the Mississippi chapter of the NAACP. Mr. 
     Pickering sent his children to the newly integrated public 
     schools in that state in the 1960s, and he helped the FBI in 
     prosecutions of the KKK, testifying against the imperial 
     wizard in 1967 at some personal risk.
       But these facts are irrelevant to liberals who are panicked 
     after their recent election defeats and are clinging to their 
     last lever of national power through the appointed judiciary. 
     They're hoping the public won't notice or care much about 
     this power play, which means that Mr. Bush and Republicans 
     will have to keep the issue front and center. Five Southern 
     Senate seats are open this year, and voters in those states 
     in particular deserve to know how much the bicoastal 
     Democratic liberals despise their values.

                          ____________________