- The Washington Times - Thursday, March 14, 2002

It will not come as a surprise if the Democrat-controlled Senate Judiciary Committee votes today to keep Judge Charles Pickering's nomination to the U.S. Court of Appeals from reaching the Senate floor. After all, there is a Republican in the White House, and it is once more open season on judicial nominees.

The far-left's carefully orchestrated attacks on Judge Pickering have been particularly nasty, smearing him as a racist without ever actually mentioning the word. His real record one of following precedents as a judge, testifying against a leader of the Ku Klux Klan in 1967 and putting his words about racial reconciliation into action is an inconvenience liberal interest groups have chosen to ignore.

Judge Pickering's record is something Judiciary Committee Democrats would rather ignore as well, but unlike the left-wing groups that sent out position papers based on snippets of that record, they have had to listen as their colleagues from the other side of the aisle kept bringing those inconvenient facts about the real Charles Pickering to light. They were also faced with a convincing independent analysis by the Legal Times, which concluded that the full story of Judge Pickering's record on civil rights is very different from the far-left's portrayal of his life and record.

None of that appears to have made a difference, however, because this fight is not really about Judge Pickering's record. It is about the left's push for judges guaranteed to deliver certain political results. And so the personal attacks on Judge Pickering have continued.

Left-wing groups and some Senate Democrats have indicated that attacks on Judge Pickering are payback for the way Bill Clinton's nominations were handled by a Republican-controlled Senate, though they insist, when pressed, that payback is the furthest thing from their minds. The notion that there is something to pay back is based on two misrepresentations: that Mr. Clinton's judicial nominees were attacked on personal rather than professional grounds, and that the Senate left an unusually high number of nominees unconfirmed at the end of his term.

Actually, the leveling of personal attacks on judicial nominees seems to occur only when a Republican president is nominating judges. It certainly did not begin in 1995 when Republicans gained control of the Senate, and Mr. Clinton's nominees never faced the kind of smear campaign that Judge Pickering has had to endure.

In his 1985 book, "God Save This Honorable Court," Harvard professor Laurence Tribe provided academic cover for the use of political considerations in the judicial-selection process. After that, it was open season on President Reagan's and President George H.W. Bush's nominees: Jeff Sessions in 1986, Robert Bork in 1987, Kenneth Ryskamp in 1991, and Clarence Thomas in 1991 each was subjected to a campaign of character assassination involving gross misrepresentations of his record. Messrs. Sessions and Ryskamp were both defeated in committee, and in each case it was the nominee's political background that was the real reason for the opposition.

After Mr. Clinton was elected president, the far left underwent a complete reversal. Suddenly, a nominee's politics did not matter anymore. One opponent of the previous administrations' nominees, Nan Aron of the left-wing Alliance for Justice a group now opposing Judge Pickering went from complaining about a conservative president appointing nominees with conservative backgrounds to insisting that the Democrat president had the duty to fill judicial vacancies and appoint jurists who shared his views. Meanwhile, the Republican-led Judiciary Committee did not defeat a single nominee in committee, and even the lone Clinton nominee voted down in the Senate still received a vote on the floor. More significantly, then-committee Chairman Orrin Hatch never held a hearing where witnesses were called to attack the nominee.

Upon the election of George W. Bush, the politics of personal destruction returned to judicial nominations. Last April, Mr. Tribe and several others reportedly attended a private retreat for Senate Democrats, where they lectured on how to change the ground rules by applying an ideological litmus test to nominees. With that academic cover, the far left has declared open season once more.

The other justification for paying back Republicans that Republican senators broke new ground in not acting on several of Mr. Clinton's nominations has no more merit than the notion that Republicans followed Democrats in attacking judicial nominees on a personal basis. At the end of 1992, then-Chairman Joseph Biden left 54 of former President Bush's nominees unconfirmed, even though there were more than 100 judicial vacancies. For their part, Republicans in 2000 left just 41 of Mr. Clinton's nominees unconfirmed, with only 67 vacancies. In both cases, several nominees did not receive a hearing, but those on the far left are careful to never mention Bush nominees like Frank Keating, John Roberts, Terry Boyle or Lillian BeVier.

If just one committee Democrat votes to report out Judge Pickering's nomination, each senator will have the opportunity to give his advice and consent. Mr. Biden once said that every judicial nominee deserves a vote on the floor, and Chairman Patrick Leahy said that the Senate has the responsibility to bring nominees to a vote. But this is about politics, not fairness, and the left is ready to claim its first victim.

John Nowacki is director of the Judicial Selection Monitoring Project at the Free Congress Foundation.

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