Will Republicans learn a lesson from the Democratic attack?
ith the nomination of Charles Pickering to a place on the Fifth Circuit Court of Appeals nearly dead, Senate minority leader Trent Lott held a meeting Thursday afternoon with Republican members of the Senate Judiciary Committee to plan a post-Pickering strategy for judicial-confirmation battles. According to a source familiar with the proceedings, there were "a lot of angry feelings" in the room, not only about Democratic attacks on Pickering but about the general treatment of Bush-administration judicial nominees. "This has been a very sobering lesson," the source says.But the meeting wasn't really about Pickering. "Actually, not much was said about him," says the source. "Most people are resigned to the fact that we are not going to get him." Instead, the focus of the meeting was what to do next. "We need to have a strategy to move forward," the source continues. "We need to be tougher, we need to have White House involvement, we need to find ways to counter the interest groups on the other side."
As improbable as it might seem to veterans of confirmation wars, some in the GOP were surprised by the ferocity of Democratic attacks on Pickering. Some Republicans were apparently lulled into a sense of confidence by Pickering's lack of any obvious vulnerabilities; after all, Pickering had been unanimously confirmed to the U.S. District Court ten years before, with the votes of Democratic senators who now oppose him. Also, the American Bar Association, assessing his decade of work on the bench, gave Pickering its "well qualified" rating. And he had the support of many community leaders, both black and white, in his home state of Mississippi, as well as the support of both home-state senators.
Yet the Democratic attack came, and some Republicans were not ready for it. Now, as they consider what to do next, one of the issues they are grappling with is how involved President Bush should be in appeals-court nomination battles. Should the president enter the public fray on behalf of specific nominees for the federal courts of appeal? Or should the president save his words for the Supreme Court nominations that he might have to make at any time?
By most accounts, the White House has done little to support Pickering, who was nominated at the insistence of his friend Trent Lott. At a White House briefing Tuesday, spokesman Ari Fleischer repeated an earlier assertion that "the president believes in Judge Pickering and will fight for Judge Pickering." But when a reporter asked what, precisely, the president had in mind, Fleischer answered, "I think he'll just make an assessment at the appropriate time about what that means, of what level of activity he will personally engage in. He'll just make that call as it gets closer."
That call apparently was made the next day, on Wednesday morning, when Bush brought the subject up during a White House meeting that included Lott and Senate Majority Leader Tom Daschle. One source familiar with that conversation says Bush made a flat statement that the Senate should confirm Pickering. "The president said Pickering deserves to be confirmed," the source says. "When he said that, Lott jumped in and said he was disappointed in how Pickering was being treated." Daschle, according to the source, was non-committal.
Afterwards, Daschle denied that Bush had made an appeal for Pickering's confirmation. "The president didn't ask for a floor vote," Daschle told reporters Wednesday afternoon. "He asked what the prospects were, and I said I didn't know. There wasn't any request of me to take it to the floor. He made his general views known about the need to move ahead on judges, and expressed the hope that we could confirm as many as possible." Daschle said he told Bush "that's a matter for the Judiciary Committee....I respect the Judiciary Committee's decisions, and we have to accept those."
Daschle's account appears implausible; it seems unlikely that Bush would bring up the Pickering nomination simply to ask what the prospects were, since the president surely knows they are dismal. It's more likely that Bush said just what other witnesses said he said — that Pickering should be confirmed. Republicans in Congress can take some comfort in that, since it is unusual for a president to make a personal appeal on behalf of a nominee to an appeals-court seat. On the other hand, Bush's pro-Pickering pitch was not terribly forceful — Daschle felt free to ignore it completely — and it came very, very late in the game.
Now, Republicans appear to have come to the conclusion that they must do much, much better the next time. Democrats are making no secret of their intention to oppose several of the president's more conservative nominees, and even some of the Senate's less-confrontational Republicans have realized that the Pickering fight was just the first of many to come.