[Congressional Record (Bound Edition), Volume 148 (2002), Part 3]
[Senate]
[Pages 3269-3270]
[From the U.S. Government Publishing Office, www.gpo.gov]




                THE NOMINATION OF JUDGE THOMAS PICKERING

  Mr. KYL. Mr. President, I heard the distinguished minority leader 
speak a couple of hours ago on behalf of the resolution which he 
submitted to the Senate for its consideration, and hopefully a vote 
perhaps Tuesday of next week, in which he called for moving forward in 
a way that was less politicized with respect to judicial nominations. 
He had just witnessed the defeat in the Senate Judiciary Committee of 
his candidate for the Fifth Circuit Court of Appeals from his State of 
Mississippi. The President had nominated this fine man, Judge Thomas 
Pickering. The judge currently sits on the Federal district court. 
President Bush nominated him to serve on the Fifth Circuit.
  The minority leader had witnessed his defeat in the committee just a 
few moments before and expressed himself, I thought, quite eloquently, 
without anger but with a great deal of sadness. I share that sadness 
tonight because I think a very fine man has been ill treated.
  Some of my colleagues have said the process was fair. And I don't 
argue that the process was unfair. But what I argue was unfair was the 
characterization of the man. It was done so that there would be a 
reason to vote against him.
  As I will point out in a moment, I think the real reason there were 
objections to Judge Pickering was that he was a conservative from 
Mississippi nominated by President Bush. There were too many groups on 
the outside. Yes, I do think they had some influence with Members of 
the Senate and characterized him as an extremist, as out of the 
mainstream, and therefore it became difficult for some Senators to vote 
for him.
  I wish to make it clear that this was not a vote by the Senate. For 
those who might be watching, what happened today was the Senate 
Judiciary Committee voted along party lines to defeat his nomination. 
The majority would not agree to send him to the Senate, as has been 
done in a few cases, without a recommendation, or even with a negative 
recommendation. The reason is that had he come to the full Senate for 
consideration, because of the expressions of support by some members of 
the majority party, it is clear he would have been confirmed. They were 
unwilling to let the full Senate vote on him so that he could be 
confirmed.
  There is a question about the advice and consent clause of the 
Constitution which speaks to the advice and consent of the Senate being 
exercised by just 10 members of the Judiciary Committee. I think that 
perhaps is the right of the majority on the Judiciary Committee. But I 
am not necessarily certain--at least certain in some cases--that it is 
the right thing to do. It was not a full Senate vote that defeated 
Judge Pickering; it was just the committee.
  The unfair characterization of Judge Pickering was designed to find 
some reason or some rationale for voting against him.
  Why do I say that?
  There were a lot of different charges: One, that he was a racist. No 
Senator was ever willing to stand up to make that charge. There were 
cases cited. But nobody was ever willing to make that charge.
  There was a suggestion that he had collected some letters to support 
him and that it was unethical. There is no ethics provision that says 
that one way or the other. As a matter of fact, none of us can stand up 
and say, yes, or, no, it wasn't. But I think had a decision been made 
on that basis alone, it would have been extraordinarily unfair.
  The American Bar Association, which rated Judge Pickering well 
qualified, considered all of these matters, obviously. Certainly, the 
American Bar Association's imprimatur of qualification has been one of 
the standards most of the members on the majority side have held up as 
justifying a vote for or against a nominee. When the ABA says this 
candidate is qualified, it is a little hard for me to justify an 
assertion that somehow he was unethical because he collected letters of 
support on his behalf and presented them to the full Senate.
  There was an argument made that he had done a lot of reversals. I 
heard that for several weeks. This morning before the committee, 
Senator Hatch debunked that totally. The reversal rate is good by any 
standard. If you take the total number of cases, it is far below the 
average judge. If you take the number of appeals, it is below the 
average judge.
  If you are going to say how his record stands up against all other 
judges, he is much better than the average Federal judge.
  The reversal rate--25 out of some 5,000 cases--is hardly a reason to 
vote against him. That was debunked.
  This morning, I heard that the reason one Senator was voting against 
him was that the nomination was so controversial that it was 
polarizing.
  I must say, it is a little like saying, don't you stick your chin out 
at me or I will hit you, and you will have started a fight. It is hard 
for me to figure this one out because some outside groups object to a 
candidate, create a fuss and a stir about the candidate, and the 
candidate, therefore, becomes controversial. We are supposed to vote 
against him? There have been a lot of controversial people in history.
  I cited this morning people such as Martin Luther King, Jr., Sir 
Thomas More, and Justice Hugo Black. History is replete with great 
people who were indeed controversial. In fact, it took courage to stand 
up for them at the time that they were controversial. But they were 
right. And the people who stood with them at the time have been 
validated in their view of what was right, and in their courage.
  It seems to me as constitutional officers we have an obligation to 
follow our constitutional duty and make our decision based on whether a 
person is qualified or not, not based upon whether that person is 
controversial.
  There is also a very significant undercurrent of retribution. Hardly 
any conversation about Judge Pickering could occur without members of 
the majority party saying: And let us remind you of all of the judges 
who were treated unfairly when Republicans were in power in the Senate 
and President Clinton was the President.
  Only one judge was defeated on the floor of the Senate, and I do not 
think

[[Page 3270]]

any were defeated in the committee, as Judge Pickering was today. But 
there were some judges who did not get a hearing. Maybe there were too 
many. But I think that it is quite unfair to try to dream up reasons to 
vote against somebody if the real reason is that you do not like what 
happened to some of President Clinton's nominees. That is not right.
  We talk about the cycle of violence in the Middle East and say we 
have to stop it. Yet some people apparently are willing to maintain a 
different kind of cycle of retribution in the Senate.
  I think what it boils down to is a matter of philosophy. I think, if 
people are honest with themselves, a lot of this boils down to the fact 
that some members of the majority are uncomfortable supporting a 
conservative nominated by President Bush. And some on the committee 
have been courageous enough to, in fact, say that.
  One of the Senators from the majority this morning said: Look, I 
think that he's out of the mainstream. I think that President Bush is 
nominating waves of conservative ideologues, and that offends my sense 
of what is proper, and, therefore, I am going to vote against that kind 
of nominee.
  That is an honest statement, at least, even though I think it is very 
wrong. But I think that really is the reason why a lot of people 
decided not to support this nominee. And the question is, A, are they 
right? And, B, is that right?
  Well, are they right? I do not doubt that Judge Pickering may be 
characterized as a conservative, but he has been on the Federal bench 
for a long time, and I have not seen anybody say that his decisions 
reflected some kind of conservative bias. Moreover, one man's 
conservative is another man's mainstreamer, or however you want to 
characterize it.
  I think we get on a slippery slope when a Senator from New York says, 
for example: Why, those candidates are outside the mainstream. They are 
conservative ideologues. I say: Gosh, they look pretty good to me. Of 
course, I am a conservative from Arizona. So it is all in the eye of 
the beholder. The question is, Who got elected as President of the 
United States?
  I remember when Al Gore said in one of the debates with George Bush: 
You don't want to elect George Bush because, if he gets elected, he 
will nominate conservatives to the bench. Everybody in the country 
knows that whoever is elected President is going to nominate people 
they like to the bench.
  President Clinton nominated a lot of people I thought were pretty 
liberal. I did not vote for all of them, but I voted for a lot of them 
because they were qualified, I had to admit. But I thought they were 
liberal. They were liberal. And I did not like that. And they have 
added to liberal courts. But, again, he was elected President, not me. 
I am a conservative from Arizona.
  You can characterize President Clinton however you want to 
characterize him. He had the right to nominate candidates of his choice 
because he got elected by the whole country. And so did George Bush.
  I daresay that George Bush probably is a better representative of the 
mainstream of America than a lot of individual Senators in this body 
who are answerable to specific constituencies in Arizona or New York or 
New Jersey or Minnesota or whatever State it might be. Therefore, I 
think it is wrong for any of us to have a litmus test of politics 
determining our vote for judges on the courts. I think if they are 
qualified, if the ABA says they are qualified, if we acknowledge they 
are qualified, then we should not be voting against them just because 
of their judicial philosophy.
  That brings me to the conclusion here.
  When I saw the distinguished minority leader express himself tonight, 
after his fellow Mississippian had been defeated in the Senate 
committee, and he offered his sense of the Senate, I admired Senator 
Lott because what he was saying, in effect, was: I am not going to 
forget this personally. But it is time to move on and stop this 
business of retribution, this business of saying Clinton judges were 
treated unfairly, so, therefore, we are justified in doing the same to 
President Bush's nominations.
  What Trent Lott was saying was let's move on. Let's stop this 
nonsense. And the way we can do it is to begin to deal with the backlog 
of circuit court nominees that we face today. And he pointed out the 
statistics. Only one of the nine nominees of just about a year ago--on 
May 9--have even had a hearing. There is no excuse for that. There is 
absolutely no reason that all nine of these candidates could not have 
had a hearing.
  Judge Pickering is only one. The other eight have not had hearings. 
Miguel Estrada, for example: No hearing. He is right here. There is no 
problem. He can have a hearing. But it is going to be a year before he 
can even conceivably have a hearing now. There is clearly something 
wrong when that is the situation.
  So what Senator Lott said was let's have a sense of the Senate and 
agree as a Senate that at least those eight nominees of May 9, 2001, 
should have a hearing by May 9, 2002; that is not too much to ask; and 
it isn't. So I hope all of my colleagues will join us in supporting it.
  Now, that does not guarantee it, but it expresses the sense of the 
Senate that we ought to do it. I think that is a good way for us to 
begin to put some of this acrimony behind us.
  I remain disappointed about Judge Pickering. I am resigned to the 
fact that he is not going to be, at least for now, confirmed to the 
circuit court. But I do think we can learn from this exercise, adopt 
Senator Lott's resolution, agree to hold hearings on these judges, and 
then, of course, follow through with action by the committee and then 
action by the full Senate.
  The statistics are such that in order for this Senate to confirm the 
same number of judges that were confirmed for President Reagan, the 
first President Bush, and President Clinton, in their first 2 years of 
office--the measure for the end of this current year--we would have to 
hold a hearing every single week--we, the Senate Judiciary Committee, 
of which I am a member--that we are in session until the end of this 
year, with five district court judges and one circuit court judge per 
hearing.
  We would have to do that every single week. And the committee would 
have to vote on five district court nominees and one circuit court 
nominee. The full Senate would have to vote on five district court 
nominees and one circuit court nominee every single week. That is just 
for us to confirm the same number of judges for President Bush, the 
second, as we confirmed for his father and for President Clinton and 
for President Reagan.
  Obviously, we have dug ourselves a big hole. We have to start to get 
out of this hole. An old rancher friend of mine once said: If you're in 
a hole and want to get out, the first thing you want to do is stop 
digging.
  We have to stop the delay and the recrimination and get on to 
confirming qualified judges. The best way to do that is to commit to 
holding hearings and having the Judiciary Committee vote on those 
nominees. If they vote a nominee down, all right, but let's make sure 
it is on the qualifications and not some excuse. Then bring those 
nominees who are supported to the floor so the full Senate can act on 
them as a body.
  I support Senator Lott's resolution. I hope my colleagues will do so 
when we have a chance to vote on it, perhaps Tuesday, so we can move 
beyond the kind of actions that I believe characterize Judge 
Pickering's rejection today. I hope this is the last time we will have 
to have a conversation such as this.
  I appreciate the Presiding Officer's patience.

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