The Role Of Ideology in Judicial Selection: Test Case

The battle over the nomination of Charles Pickering to an appellate court isn't about Pickering. It's about power

Federal District Judge Charles Pickering Sr. of Mississippi has the misfortune of being the first Bush federal appeals court nominee openly targeted by liberal groups and Senators determined to block the President from transforming the lower courts—and, if he gets a chance, the Supreme Court—into conservative bastions.

So, poor Pickering finds himself trashed as "a throwback to the old, segregated South," in the words of Marcia Kuntz, of the liberal Alliance for Justice. That makes Kuntz a contender for the 2002 John D. Ashcroft award, given (by me) for the ugliest smear of a nominee in the tradition of then-Sen. Ashcroft's 1999 trashing of Missouri Supreme Court Judge Ronnie White as a "pro-criminal" jurist with "a tremendous bent toward criminal activity." (White's criminal activity consisted of voting to reverse death sentences and convictions in a fraction of his cases.)

Pickering, 64, an anti-abortion conservative who would sit on the U.S. Court of Appeals for the 5th Circuit—which covers Mississippi, Texas, and Louisiana—seems a decent man and a diligent, if often-reversed and undistinguished, judge. He may not be quite the paragon of courageous leadership in the struggle for racial equality his supporters portray. But he is hardly the racially insensitive "throwback" portrayed by some of his liberal opponents.

But this battle is not primarily about Pickering. And the major combatants are not animated by whether his heart is tainted by racism (there is no recent evidence it is), or whether he has seemed forthcoming about long-past, race-related episodes that have drawn criticism (he has not), or whether he seems a basically ethical person (he does), or whether his judicial opinions are well-crafted (they are not).

Although such issues are debating points, this is a battle about power—the power to shape the liberal-conservative balance on the federal appeals courts. Appellate judges get little media attention, but they exercise vast influence over national policy on virtually all controversial issues. They also have the last word in 99.7 percent of all federal cases. Bush would like to create conservative majorities on most or all of the 13 appeals courts. Liberals are desperate to avert such a shift.

Supreme Court confirmation battles have focused on the nominees' ideology since two decades before the climactic 1987 rejection of Judge Robert Bork. Until recently, the Senate tended to rubber-stamp any lower-court nominee equipped with a pulse, a law degree, and a clean criminal record. Deference to the President's choice was the norm.

But now, Republicans complain that Senate Democrats, their academic auxiliaries, and liberal groups are openly calling for an ideological litmus test to block strongly conservative Bush nominees to the appeals courts. Democrats have a pretty good rejoinder: The Republicans started it by mounting what People for the American Way President Ralph G. Neas calls "an unprecedented partisan and ideological blockade" to derail an unusually high 35 percent (or 24 candidates) of Clinton's appeals court nominees from 1995 to 2001 without even giving them hearings. In some cases, Republican Senators (apparently including Ashcroft) used anonymous "holds" to stall individual nominees-one lasted for a record-breaking four years. Even White House Counsel Alberto R. Gonzales admitted to CNN in August that this Republican stalling had been wrong.

The result of this stall was that Bush inherited an unusually large number of vacancies when he took office. And Senate Democrats are understandably reluctant to reward past Republican obstructionism by helping Bush fill these vacancies with conservatives. If all of Bush's current nominees are confirmed, Neas says, 11 of the 13 appeals courts (up from seven now) will be controlled by Republican-nominated judges.

Such partisan labeling of judges might have sounded strange two or three generations ago. But with the ever-greater politicization of the law over the past 50 or more years, the party registration of the nominating President has become the best rough predictor of how a federal appellate judge is likely to vote in the most-controversial cases. Small wonder that the confirmation process has degenerated into a downward spiral of partisan brawling.

What role should ideology play in the confirmation process for appellate nominees? It depends on where you sit. When Bill Clinton was President, Republicans infuriated Democrats by stalling or killing nominees they deemed to be too liberal. Now that Bush is President, Democrats endorse ideological vetoes (of conservatives) and Republicans are shocked—shocked!—to see the process politicized.

A more neutral principle might be this: In the interest of filling vacancies within a reasonable amount of time, and encouraging first-rate lawyers to accept nominations without fear of an ever-longer and more harrowing confirmation process, Senators should ordinarily give considerable deference to the President's choices. But deference has a limit.

The limit is that Senators can and should use their "advise and consent" power to keep the judiciary as a whole reasonably representative of the American people, rather than allowing the President to suddenly tilt the courts to the left or the right of center. While courts have not traditionally been seen as representative bodies, they have claimed many of the powers once exercised by those bodies. And Bush's hotly disputed victory in the freakishly close 2000 election gave him no mandate to make the third branch of government dramatically more conservative.

This does not mean that the Senate should indiscriminately block the most-conservative nominees. Indeed, the Democrats should stop stalling stellar conservatives such as John Roberts and Miguel Estrada, two leading appellate advocates, who would sit on the District of Columbia Circuit, and Michael McConnell, a widely respected constitutional scholar, who would sit on the 10th Circuit.

Democratic Senators would be justified, however, in temporarily blocking conservative Bush nominees to keep open vacancies that Senate Republicans unjustifiably prevented Clinton from filling, and in insisting that Bush either renominate the Clinton candidate (as he has done in one case) or choose someone else ideologically acceptable to Democrats.

Where would these criteria leave Judge Pickering—whose old friend and chief patron, Senate Minority Leader Trent Lott, R-Miss., has said Pickering will be confirmed "or else"? Pickering is not without virtues. Even opponents who assail his civil-rights record acknowledge that he courageously testified against a Ku Klux Klan leader in a 1967 murder case, when that was a dangerous thing to do. He has long been a leader in organizations seeking to improve race relations in his state and has many admirers there, including some Democrats. Supporters, including James Charles Evers, the brother of slain civil-rights leader Medgar Evers, claim that he "has an admirable record on civil-rights issues."

Liberal groups, Democratic Senators, and the Mississippi NAACP vigorously disagree. In a 25-page report, People for the American Way asserts that Pickering's opinions "suggest a hostility to civil and constitutional rights" and faults him for a rigidly conservative ideology; for his high rate of reversal on appeal, including 15 cases in which the 5th Circuit found that he had misread "well-settled principles of law"; for his use of a judicial opinion as a forum to criticize(while construing narrowly) the Supreme Court's one-person-one-vote precedents; for disparaging comments about black job-discrimination plaintiffs whose claims he considered weak; and for his unconvincing explanations of several decades-old, disputed episodes, including his authorship of a law review note advising the Mississippi Legislature on how to fix a technical flaw in its anti-miscegenation law, the better to enforce it against interracial couples. (That was in 1959, when Pickering was a 21-year-old law student.) Critics also suggest that he violated an ethical rule when he phoned a high-level Justice Department official in 1994 to protest a prosecutor's insistence on a five-year mandatory prison term for a man convicted of burning a cross on an interracial couple's lawn.

As for Pickering's judicial opinions, a quick scanning calls to mind Sen. Roman Hruska's legendary 1970 encomium to Supreme Court nominee G. Harrold Carswell: "Mediocre judges and people and lawyers ... are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Indeed we can't. None of Pickering's blemishes seems clearly disqualifying, and ordinarily deference to the President's (and the Minority Leader's) choice might argue for an unenthusiastic vote to confirm. But this is not an appropriate case for deference. The reason is that Senate Republicans kept three seats open on the 5th Circuit for Bush to fill by blocking three Clinton nominees from even getting votes. Until the Republicans rectify that obstructionism, maybe Pickering should wait.