No better way to pick a justice?

Charles Pickering's critique of our judicial nomination process.

By

Samuel A. Alito Jr.'s confirmation to the Supreme Court ends the latest round of the judicial nominations war, and neither Democrats nor Republicans come out looking particularly good.

The most memorable image from Alito's confirmation hearings was his wife walking out of the room in tears. Conservatives blamed Democrats' viciousness, conveniently forgetting their own attacks against Harriet Miers last fall.

Few people are better positioned to write about the judicial confirmation meat grinder than Charles Pickering. In 2003, Senate Democrats filibustered his nomination to a seat on the US Court of Appeals for the Fifth Circuit.

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After a temporary recess appointment to the court, Pickering returned home to Mississippi in 2005. The result is Supreme Chaos, in which he sets out to explain what's wrong with the process - and to settle some scores.

Pickering lashes back at the liberal interest groups and Democratic senators he holds responsible for his defeat. He describes himself as "cannon fodder," and contends that liberal groups opposed him because of his strong religious beliefs and charges that he held racist views.

His history of the culture wars and warnings about attacks on faith are likely to elicit hearty amens from readers worried about "activist judges" and their rulings on abortion, gay marriage, or religion in the public square.

Unfortunately, much of the book simply regurgitates ideas found in other equally angry recent titles such as Mark Levin's "Men in Black: How the Supreme Court Is Destroying America." Remove all of the excerpts from other authors and Pickering's book might shrink to the size of a novella.

But buried beneath Pickering's pile of personal and partisan outrage are some perfectly reasonable observations. He correctly notes that the process is full of delays, and often includes demonization that can lead qualified candidates to decline nominations. He acknowledges that the process is subject to the wishes of whatever party is in control. And, he argues, unless this cycle stops, the nomination process will only get worse.

But Pickering is guilty of placing too much of the blame on Democrats.

He dedicates whole chapters to Democrats' decision to filibuster President Bush's judicial nominees. Yet he devotes far less space to the Republican practice of denying President Clinton's nominees a hearing or vote in the Senate Judiciary Committees.

Yes, as Senate Republicans insist, the mechanisms are different. But the outcome is the same: a nominee likely to receive majority support doesn't get a vote. Surely, a blocked Clinton nominee such as Elena Kagan - who later became Harvard Law School's first female dean - is no less entitled to a seat than Pickering.

Equally troublesome is the way in which Pickering chooses to write about Manuel Miranda, a former Senate Republican aide, and what he calls "leaked" Democratic strategy memos.

What Pickering neglects to mention is that Miranda was forced to resign in 2004 after he gained unauthorized access to those memos from Senate Democrats' computer network (an incident which is the subject of an ongoing Justice Department investigation). Yet with conservative support Miranda still managed to land a role as a leading activist in the recent Supreme Court nominations.

The bottom line is that neither side has clean hands. Both parties are increasingly willing to do whatever it takes to ensure that the nominees they prefer end up on the courts while stopping - or at least slowing down - those they don't.

Pickering dedicates very little space to potential solutions. He proposes a new law spelling out a timeline for judicial nominees' hearings and votes in both the Judiciary Committee and on the Senate floor. That idea would probably receive a cool reception in Congress as both parties are jealous of their prerogatives to control the nomination schedule.

Pickering plans a follow-up volume laying out more recommendations and additional thoughts on his experience as a nominee. In hindsight, Pickering would have been better off concentrating on a single volume rather than rushing this one to press to coincide with the Alito hearings. Perhaps by then, his observations would be less clouded by his own bitter experience.

Seth Stern is a reporter for Congressional Quarterly in Washington, D.C.

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