[Congressional Record (Bound Edition), Volume 148 (2002), Part 3]
[Senate]
[Pages 3330-3331]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        THE PICKERING NOMINATION

  Mr. BENNETT. Madam President, we have just confirmed a district 
judge, and I am delighted with that action. It is an action I wish we 
would take more often around here.
  Last night, the Judiciary Committee refused to send to the Senate 
Judge Pickering, who was nominated for the circuit court. I wish to 
make a few comments with respect thereto, and do it in the shadow of 
the confirmation vote we have just had.
  When this session of Congress began, the Senator from Vermont, who 
now chairs the Judiciary Committee, made it clear he had an extra-
constitutional test he would apply to every judge. That is, he insisted 
we have the statement of the American Bar Association before us before 
we even consider a judge. I use the term ``extra-constitutional'' 
rather than ``unconstitutional,'' as some commentators have, because 
the Senator has every right to turn to any group or any area he wants 
in order to make his decision, but a requirement that a judge be 
recommended by the American Bar Association is not in the Constitution. 
Therefore, it is an extra-constitutional test.

[[Page 3331]]

  When Judge Pickering came before the Judiciary Committee, he passed 
that extra-constitutional test. He was chosen and designated as being 
well qualified by the American Bar Association. Yet he was voted down 
by the members of the Judiciary Committee. Some of them said he had 
racist views. Yet the African Americans in his home State came forward 
in great numbers to insist that this judge did not have racist views. 
Indeed, these African Americans who knew him better than African 
Americans outside of his State insisted he was an excellent judge and 
an excellent choice for the circuit court. Nonetheless, he was still 
not sent to the Senate for a vote.
  What this means is that the chairman of the Judiciary Committee has 
an additional extra-constitutional test he is applying to nominees. As 
he said before, it is his right to put whatever test he wants. But I 
hope, in courtesy to the Senate, that he and the other members of 
Judiciary Committee who voted against Judge Pickering will disclose 
their extra-constitutional test. They did at the beginning of the 
session. They said, in response to the President, they would not 
consider him until we have a rating from the American Bar Association. 
That is an extra-constitutional test we will openly and directly apply.
  It is clear from what has happened to Judge Pickering that there is 
now another extra-constitutional test being applied in secret, that is 
being applied in camera, and that is being applied in the dark. Those 
of us who are unaware of what it is are, therefore, unable to discuss 
it and unable to talk about it or direct our concerns toward it.
  Therefore, I formally ask the chairman of the Senate Judiciary 
Committee, Mr. Leahy from Vermont, to tell us what the extra-
constitutional test that he applied to Judge Pickering is.
  The newspapers say he has to pass muster from groups such as People 
for the American Way. I would rather not get the information from the 
newspapers. I would rather not have a journalist tell me what is on the 
Senator's mind. I would rather have the Senator tell us as openly and 
directly as he can at the beginning of this session what it is he 
requires before he will vote for someone to come out of the Judiciary 
Committee for a Senate vote.
  It is only fair that we and the constituents in Vermont understand 
what the test is that the chairman of the Judiciary Committee is 
applying. At the moment, we are left in the dark.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New Hampshire.
  (The remarks of Mr. Gregg pertaining to the introduction of S. 2020 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. GREGG. Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Carper). The Senator from Nevada.

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