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Pickering battle places Congress on verge of ‘institutional crisis’

WASHINGTON (BP)–Republicans and even some Democrats on the Senate Judiciary Committee acknowledged March 7 that extremely bitter battles surrounding the confirmation of President Bush’s judicial nominees are endangering the entire nomination process, CNSNews.com reported March 7.

“We’re on the verge of an institutional crisis here, and both sides are responsible for it,” said Sen. Mitch McConnell, R.-Ky. “I fear we are edging toward a place where no one can be confirmed, that we’ll all just continue to get more dug in and more partisan and the wheels will grind to a halt.”

McConnell made his comments during a committee meeting that was to include a vote on the nomination of Judge Charles Pickering to the Fifth U.S. Circuit Court of Appeals. The vote was postponed for the second time.

“The last thing on earth I want for this committee and for this Senate and for any future Senate is to have this totally devolve into a tit-for-tat situation where all we do is smear people who we don’t like or who differ with us in their opinions,” said Sen. Orin Hatch, R.-Utah, the ranking minority member of the committee. “I’m sick of it and I’d like to end it.”

Hatch charges that the “lynching” of Pickering’s nomination “is the product of engineering by extreme left Washington special interest groups who are out of touch with the mainstream and have a political axe to grind.”

One of those liberal special interest groups distributed a statement at the hearing, contending: “If the nomination of Judge Pickering is an indication of what we can expect with future Bush administration judicial nominees, then all his candidates should come with a warning label, ‘Beware … May be Hazardous to Women’s Health and Civil Right.'” The statement, from Planned Parenthood, the nation’s largest abortion provider, also declared, “No judicial nominee should be considered unless they affirm a woman’s civil and human right to make her own childbearing choices.”

But Sen. Joseph Biden, D.-Del., warned his fellow Democrats to carefully consider their reasons for opposing Pickering at next week’s vote.

“I know some from the outside have argued that because Judge Pickering has personal views relative to abortion different from mine we should vote against him. I’d be careful what we wish for,” Biden cautioned. “Because if it is based … not upon his judicial rulings but personal beliefs relative to a social issue, when we have a Republican Senate again, it’ll be a cold day in hell before we have anybody on the bench who is ‘pro-choice.'”

Sen. Arlen Specter, R.-Pa., concurred that Pickering’s nomination has, in large measure, deteriorated into a battle over abortion.

“I’m concerned also that what we have here with Judge Pickering is a warm-up for a later confirmation battle on the Supreme Court. And there’s been a suggestion by some on this committee about a litmus test on Roe versus Wade,” Specter said. “My ‘pro-choice’ views are well known, but I have supported nominees who have held different than my own personal views.”

Sen. Jon Kyle, R.-Ariz., urged his colleagues to overcome the temptation to judge Pickering on his personal beliefs rather than his judicial qualifications.

“All of us in politics have infinite capacity to rationalize. I believe that all of us look for reasons to oppose someone whose views are politically different from ours, to one degree or another,” Kyl admitted. “And, to the degree that we do that, it’s not a good thing.”

Specter agreed. “Maybe it’s too late for Judge Pickering,” he said. “But it’s my hope that, without the context of a specific nominee, that we’ll declare a truce, an armistice and we’ll try to arrive at some protocol.”

Specter reminded his colleagues that their role in the nomination process at the committee level is limited.

“As we all know, the Constitution provides for confirmation by the Senate, not by the Judiciary Committee,” Specter said.

Sen. Charles Schumer, D.-N.Y., challenged Specter.

“That is a rationale to abolish all committees,” Schumer charged. “I fail to see why the committee structure is any more flawed in the selection of judges than it is in any other. I don’t think it’s flawed.”

Biden, however, concurred with Specter’s assessment.

“The Constitution does not say the Senate Judiciary Committee shall advise and consent, it says the Senate shall give its advice and consent,” he agreed.

Sen. Richard Durbin, D-Ill., also took issue with the view that the committee process is somehow “broken.”

“I would disagree with my colleagues on the committee who suggest that the problem we face today is a failure of the process,” Durbin claimed. “The process was very fair to Judge Pickering.”

Durbin said he believes the White House is “testing” the committee to see whether Democrats will approve of a nominee he, Durbin, views as too conservative.

“President Clinton knew that if he sent a nominee to this committee that was not at least moderate to right he didn’t have a chance,” Durbin charged. “That nominee would never get a hearing. That nominee would never be seriously considered. That nominee was going to have rough sledding at best.”

Hatch immediately contradicted Durbin. “If you think only moderate to conservatives got through, you didn’t watch the committee and you didn’t watch the Clinton judges,” Hatch said.

Specter suggested that Pickering’s nomination be moved to the full Senate for debate and a vote, even if the committee gives him an “unfavorable” recommendation. Earlier in the week, Senate Majority Leader Tom Daschle, D.-S.D., said such a move would be “unprecedented.”

“That’s not accurate. There is, in fact, precedent for moving appellate and even district court nominees to the floor for a vote even when they have not received favorable support from this committee,” Hatch explained. “Based on our research since 1950, this committee has moved at least six lower court nominees to the floor for consideration either without a recommendation or with a negative recommendation after the committee has voted them down.”

The Supreme Court nominations of conservative Judges Clarence Thomas and Robert Bork were both referred to the Senate after receiving unfavorable votes in the Democratic-controlled Judiciary Committee. Thomas was eventually confirmed as a Supreme Court justice. Bork was rejected.

The committee agreed to hold Pickering’s nomination over until March 14.

“We’re really at a pretty critical moment here,” Sen. Sam Brownback, R-Kan., observed. “We could wisely use this week to think about; is there another way out of this mess, this train wreck we’re headed into, before we get so far down the track that recovery from it becomes pretty tough.”
Johnson is the congressional bureau chief with www.cnsnews.com. Used by permission.

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