Sunday, January 18, 2004
A Lott of Pickering Bickering
In May 2001, President Bush nominated popular Mississippi Judge Charles Pickering to the Fifth Circuit Court of Appeals, prompting a nearly three year confirmation battle which "ended" when the President recently slid him in on a technicality -- that is, with a "recess appointment," when Congress was not in session and therefore can't confirm nor oppose a candidate. Recess appointments are a bit limited in that they only last until the next congress can vote on them (in this case, January 2005), but until then, he's in. The difficulties in Pickering's initial nomination were similar to those surrounding Owen, Pryor, and Estrada, in that although a majority of the Senate (56-58%) would have confirmed each nominee, a full 60% of the Senate must vote to break a filibuster in the debate on a candidate, a loophole which has been described as everything from a necessary check and balance to an unconstitutional "hijacking" of the nomination process. Naturally, after years of pulling out all the stops to deny Pickering this up-or-down vote, the Democrats are furious over Bush's decision.
Trent Lott, the Republican senator who pushed Pickering's candicacy with the most zeal, predictably praised Bush's action.
In a historical context, of course, Republicans under Clinton blocked many, many more nominees than Democrats have under Bush, and so the right's outrage over this handful always seemed, to me, a little overblown. In turn, the language of prominent Democrats has also been out of line, notably Kennedy's insensitive description of the group of highly educated (and largely minority or female) candidates as "neanderthals", and recently leaked Democrat memos which illustrated the left's fear of Estrada specifically because he was a Latino candidate, reflecting continued paranoia over allowing Republicans to ever appear helpful to minorities in any way, which might risk a loss of essential minority votes.
The concerns over Pickering largely stem from his 1959 law review article (Pickering was 21) entitled "Criminal Law Miscegenation/Incest," which pointed out the loopholes in then-current laws prohibiting the marriage of black and white Mississippians. Mississippi legislators used his article to close the loopholes, assuring interracial marriages stayed banned, and Pickering rose to a bit of prominence. What's sometimes lost in this historical analysis is that the larger point of Pickering's article was that it would be silly to bother fixing the problems, because "recent decisions in the fields of education, transportation, and recreation would cause one to wonder how long the Supreme Court will allow any statute to stand which uses the term 'race' to draw a distinction." It took no position on whether the law was valid or invalid, merely that it was poorly written. Now, I don't think one could call Pickering a champion of civil rights here, but he's hardly the wannabe Klansman the left has portrayed him as. Indeed, his vigorous prosecution of KKK Wizards (when no one else was willing to fight them), being among the first prosecutors to hire black staffers, and, as a private attorney, crossing racial lines and defending black clients, made him well-known and respected to local black leaders, and ostracized by the still-strong 60s and 70s pro-segregation crowd. Considering that even several current Senate and House Democrats were among the ones who opposed 1960s Civil Rights Legislation, and the nearly forgotten historical fact that Republicans supported the Civil Rights acts over the objections of Democrats, rejection of Pickering on "racial" grounds seems a bit hypocritical, or at least disingenous, additionally considering the overwhelming bi-partisian and bi-racial support for his nomination from his home state.
Now, as for the more recent controversy, there's a valid debate over which side is being more ridiculous -- Republicans for acting like this is the first time Senators have blocked unpopular nominees, or Democrats for acting like this is the first time a President has used the recess appointment to get around the blocks. After all, in December 2000, President Clinton used the same tactic to install Roger Gregory on the 4th U.S. Circuit Court of Appeals, after Republicans blocked his nomination earlier that year. But here's the funny part. After seven months of serving on this temporary pass, Gregory, the first black judge to ever serve on that court, was the first candidate to be nominated for full confirmation by newly elected President Bush. And indeed, the senate overwhelmingly confirmed Gregory, by a vote of 93-1. 93-1!
So who was this 1 maverick senator who refused to confirm such a bi-partisan choice so highly supported by not one, but two sitting Presidents? Why, aforementioned Pickering-booster Trent Lott, of course! But why? Did he disagree with Gregory's positions? Abilities? Skin color? Nope -- because (get this) on principle, he vowed to vote against "any approval of federal judges" that were installed by use of a recess appointment!
And people wonder why I love politics.
In May 2001, President Bush nominated popular Mississippi Judge Charles Pickering to the Fifth Circuit Court of Appeals, prompting a nearly three year confirmation battle which "ended" when the President recently slid him in on a technicality -- that is, with a "recess appointment," when Congress was not in session and therefore can't confirm nor oppose a candidate. Recess appointments are a bit limited in that they only last until the next congress can vote on them (in this case, January 2005), but until then, he's in. The difficulties in Pickering's initial nomination were similar to those surrounding Owen, Pryor, and Estrada, in that although a majority of the Senate (56-58%) would have confirmed each nominee, a full 60% of the Senate must vote to break a filibuster in the debate on a candidate, a loophole which has been described as everything from a necessary check and balance to an unconstitutional "hijacking" of the nomination process. Naturally, after years of pulling out all the stops to deny Pickering this up-or-down vote, the Democrats are furious over Bush's decision.
Trent Lott, the Republican senator who pushed Pickering's candicacy with the most zeal, predictably praised Bush's action.
In a historical context, of course, Republicans under Clinton blocked many, many more nominees than Democrats have under Bush, and so the right's outrage over this handful always seemed, to me, a little overblown. In turn, the language of prominent Democrats has also been out of line, notably Kennedy's insensitive description of the group of highly educated (and largely minority or female) candidates as "neanderthals", and recently leaked Democrat memos which illustrated the left's fear of Estrada specifically because he was a Latino candidate, reflecting continued paranoia over allowing Republicans to ever appear helpful to minorities in any way, which might risk a loss of essential minority votes.
The concerns over Pickering largely stem from his 1959 law review article (Pickering was 21) entitled "Criminal Law Miscegenation/Incest," which pointed out the loopholes in then-current laws prohibiting the marriage of black and white Mississippians. Mississippi legislators used his article to close the loopholes, assuring interracial marriages stayed banned, and Pickering rose to a bit of prominence. What's sometimes lost in this historical analysis is that the larger point of Pickering's article was that it would be silly to bother fixing the problems, because "recent decisions in the fields of education, transportation, and recreation would cause one to wonder how long the Supreme Court will allow any statute to stand which uses the term 'race' to draw a distinction." It took no position on whether the law was valid or invalid, merely that it was poorly written. Now, I don't think one could call Pickering a champion of civil rights here, but he's hardly the wannabe Klansman the left has portrayed him as. Indeed, his vigorous prosecution of KKK Wizards (when no one else was willing to fight them), being among the first prosecutors to hire black staffers, and, as a private attorney, crossing racial lines and defending black clients, made him well-known and respected to local black leaders, and ostracized by the still-strong 60s and 70s pro-segregation crowd. Considering that even several current Senate and House Democrats were among the ones who opposed 1960s Civil Rights Legislation, and the nearly forgotten historical fact that Republicans supported the Civil Rights acts over the objections of Democrats, rejection of Pickering on "racial" grounds seems a bit hypocritical, or at least disingenous, additionally considering the overwhelming bi-partisian and bi-racial support for his nomination from his home state.
Now, as for the more recent controversy, there's a valid debate over which side is being more ridiculous -- Republicans for acting like this is the first time Senators have blocked unpopular nominees, or Democrats for acting like this is the first time a President has used the recess appointment to get around the blocks. After all, in December 2000, President Clinton used the same tactic to install Roger Gregory on the 4th U.S. Circuit Court of Appeals, after Republicans blocked his nomination earlier that year. But here's the funny part. After seven months of serving on this temporary pass, Gregory, the first black judge to ever serve on that court, was the first candidate to be nominated for full confirmation by newly elected President Bush. And indeed, the senate overwhelmingly confirmed Gregory, by a vote of 93-1. 93-1!
So who was this 1 maverick senator who refused to confirm such a bi-partisan choice so highly supported by not one, but two sitting Presidents? Why, aforementioned Pickering-booster Trent Lott, of course! But why? Did he disagree with Gregory's positions? Abilities? Skin color? Nope -- because (get this) on principle, he vowed to vote against "any approval of federal judges" that were installed by use of a recess appointment!
And people wonder why I love politics.
