- The Washington Times - Monday, March 25, 2002

When Judge Charles Pickering was sent home to Mississippi by a 10-9, party-line Senate Judiciary Committee vote, the Democratic chairman, Patrick Leahy of Vermont, said unctuously: "We have made the Constitution work and we have made this committee work." Does he have a copy of the Constitution unknown to the rest of us?
I challenge Mr. Leahy to find in the Constitution, in James Madison's notes on the debates as the Constitution was being written or in the Federalist Papers, any justification for allowing a single committee, no matter which party is in the majority, to veto a federal judicial nomination.
Article II, Section 2 of the Constitution says clearly that the president shall nominate judges "with the advice and consent of the Senate." There is no footnote giving the final authority to the Judiciary Committee. Its veto power is the result of Senate rule. A constitutional amendment is not required to change that rule. All it requires is enough senators who believe in a process that is democratic.
Before Judge Pickering was dismissed, Pennsylvania Sen. Arlen Specter, a Republican who understands constitutional democracy, urged his colleagues to send Judge Pickering's nomination to the floor so that the full Senate could advise and consent. Both Republican resolutions to that effect were voted down 10-9. Even if they had passed, Democratic Majority leader Tom Daschle had vowed to block a full Senate vote.
Before the final votes were taken, Mr. Specter predicted that this partisan warfare, including the refusal to give Judge Pickering at least a fair vote on the floor, would "leave a scar" on the Senate. And not for the first time.
Committee member Charles Schumer, a New York Democrat, had made it clear for months that he will hold judicial nominees to his own ideological tests. After Judge Pickering went down, Mr. Schumer said grandly: "There is clearly no mandate from the American people to stack the courts with conservative ideologues. So, if the White House persists in sending us nominees to throw the courts out of whack with the country, we have no choice but to vote 'no.' "
The gloating Mr. Schumer did not tell us how he knows what "the American people" want in their federal judges. Has it not occurred to him that the clearest way to find out is by allowing all the members of the Senate to vote on the judicial nominee, no matter what the Judiciary Committee decides? That's the countrywide advice to the president the Framers put into the Constitution.
Mr. Leahy, who prides himself on his knowledge of and fealty to the Constitution, said righteously after the Pickering vote that the Senate's constitutional role "is advise and consent. It isn't advise and rubber stamp." That is, indeed, according to the Constitution, the whole Senate's role not just one committee in the Senate.
I wonder at what point such good government outfits as the civil rights organizations, People for the American Way and Alliance for Justice will join Mr. Specter in urging the Senate to change its rule and abide by Article II, Section 2 of the Constitution. I'm not very hopeful, however, that the impetus will come from them. They ignore the fact that, if this game continues to be played by the current rules, many of their candidates will lose on strict party-line votes when the Republicans next have the majority on the Senate Judiciary Committee.
If democratic change is to come, the arena from now on will be the congressional and presidential elections. Candidates of both parties should be challenged by their opponents, by citizens and by the media on whether and when the entire Senate will make the final decision on who sits in the federal courts and on the Supreme Court.
I was mordantly amused when, after the vote on Judge Pickering, Sen. Diane Feinstein of California told The Washington Post, in justifying her vote against Judge Pickering, that he is a "very polarizing figure."
This is the very polarizing senator who said on NBC's "Meet The Press" recently that she would not vote for any judicial nominee whom she believes would overturn Roe vs. Wade. Period. Using Mr. Schumer's terminology, her absolutist, pro-abortion-rights criterion is "out of whack" with a considerable percentage of Americans. Mr. Schumer and other members of the Judiciary Committee, in both parties, owe it to the country to tell us their definition of what makes a judicial nominee "in whack" with the country and also how they define "judicial independence."


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