According to the U.S. Senate Judiciary Committee's website, as of March 17, 2006, the nomination of 33 judges for federal circuit and district court positions remain pending in either committee or on the floor.  A total of 45 vacancies are reported, with 18 listed as judicial emergencies.

The Honorable Judge Pickering Talks About the
Politics of Judicial Confirmation and the Culture War

According to the U.S. Senate Judiciary Committee's website, as of March 17, 2006, the nomination of 33 judges for federal circuit and district court positions remain pending in either committee or on the floor.  A total of 45 vacancies are reported, with 18 listed as judicial emergencies.

Although the Senate Judiciary Committee has been relatively quiet since the confirmation of Supreme Court Justice Samuel Alito, the above statistics warrant action sooner rather than later.  Recently, the Honorable Judge Charles Pickering joined CFIF Senior Vice President & Corporate Counsel Renee Giachino to discuss the judicial confirmation process in the Senate, how it is broken and badly needs fixing.  After being selecting by George W. Bush to be a Circuit Court judge, Judge Pickering nomination was held up for many years in the Senate. He discusses the process in his new book, Supreme Chaos:  The Politics of Judicial Confirmation & the Culture War.  What follows are excerpts from the interview that aired on "Your Turn - Meeting Nonsense With Common Sense" on WEBY 1330 AM, Northwest Florida's Talk Radio.

GIACHINO:  This afternoon I would like to discuss the judicial nominations' process.  This is an important topic and I am not just beating a dead horse.  Despite the fact that we recently seated two U.S. Supreme Court Justices, this is not an issue that is going away.  There are lots of judges who have been waiting for a very long time to get through the process - judges for lower courts.  And, frankly, that is where most cases in our country are decided.  It is very important that we fill these vacancies and try and put these judges in place so that we can release the load of those who are currently having to carry it and hopefully free up some of their time and unclog some of the wheels of justice that are turning so slowly.

This is an issue that is current today and it's something that will come up again and again as we continue to fight these battles in Congress.

We are very pleased to welcome to "Your Turn" Judge Charles Pickering.  He is the author of the recently released book Supreme Chaos:  The Politics of Judicial Confirmation and the Culture War.  Judge Pickering joins us this afternoon to talk about the judicial nomination and confirmation process - something that he is intimately familiar with considering the fact that his confirmation to the 5th Circuit Court of Appeals was blocked by Senate Democrats for several years.

It is my pleasure to welcome to "Your Turn" the Honorable Charles W. Pickering, Sr.  Thank you for joining us.

PICKERING:  Renee it is good to be with you and the people of Northwest Florida and the surrounding area.

GIACHINO:  Judge Pickering, you were appointed by President George H.W. Bush on October 2, 1990 to serve as United States District Judge for the Southern District of Mississippi and your nomination was confirmed by the Senate unanimously in 1990.  Later, for almost 5 years you were involved in a battle to be confirmed to the U.S. Court of Appeals for the Fifth Circuit.  Democrats blocked your nomination in committee in 2002 and then filibustered your nomination in 2003.  Finally, President George W. Bush gave you a recess appointment on January 16, 2004.  In your opinion, what was the difference between the two appointments and the process - you were unanimously approved in 1990, and then filibustered years later?

PICKERING:  Renee I think the difference was that during this period of time these far-left special interest groups gained power and they had control of the Democrats on the Judiciary Committee, and through the Senators on the Committee they gained control of the entire Democratic apparatus.  I think it was the increased power of these special interest groups that made the difference.

GIACHINO:  You state in the book Supreme Chaos that the culture war is at the center of the confirmation battle.  What do you mean by this?

PICKERING:  The culture war is the battle for the heart, souls and minds of the American people and it involves the issues of what place God is going to play in public life and has to do with abortion in its most extreme form - that is partial-birth abortion and abortion for teenagers without parental consent or even notification, and it has to do with hard-core pornography and child pornography coming into school libraries.  All of these hot button social issues have been transferred from the political arena into the judicial arena and that is what has produced the battle.

GIACHINO:  In the book Supreme Chaos:  The Politics of Judicial Confirmation & Culture War you write about the judicial confirmation process and how it is broken and badly needs to be fixed.  Was it your own confirmation process that led you to write this book?

PICKERING:  Yes.  You cannot go through a process like this if you don't feel like somehow in the end you can make some good come out of it.  I was nominated and I naively told people that I was a non-controversial nominee.  I told them that because I was unanimously confirmed in 1990 when the American Bar Association had given me only its medium rating - which is "qualified."  I came from a political background.  After I had been on the bench for 10 years, the American Bar Association gave me its highest rating, which is "well-qualified."  For five months, they attacked a number of President Bush's nominees, maybe a dozen or so, but there was no opposition to me.  And then when Senator Leahy was conducting hearings at a snail's pace, Senator Lott, as majority leader then, began to criticize the fact that they were not confirming judges and Senator Leahy moved me to the head of the line. Immediately, when I went to the head of the line and had a hearing, these special interest groups attacked me.

And the reason they attacked me, and I now understand this because I reviewed the legal Democratic memos and I have seen some of their strategy, they were looking for a conservative nominee that they felt might be conservative and I met the criteria - I was white, from the south, conservative, religious, all of the symbols that they wanted to send to the president and say don't send us anybody like this.  And, they knew about a case that would give them footing so they could accuse me of racism - which was absolutely incorrect, I had a great record on race.  Nevertheless, they could take that case and brand me as a racist and they were trying to send a message to President Bush.

GIACHINO:  Well it appears that maybe in the end their efforts - certainly you lost and the country lost by you not getting your appointment, but in the end it may actually have made things a little easier for John Roberts - whose hearings were pretty civilized, and for Justice Alito - whose hearings were a little less civilized but certainly more civilized than what you went through.  Would you agree?

PICKERING:  Absolutely.  There are several things that caused me to feel like we won.  One is that they wasted their energy on the appellate court nominees - you might say that is the minor leagues.  They were preparing for a fight over the Supreme Court and that is where they were focusing their attention.  They really were not that concerned about us except that they were trying to position themselves to be able to block Supreme Court nominees.

Well they fought all of us and their success created problems for them because they blocked 10 by filibuster, threatened 16 with filibuster.  They created a backlash and then just before the constitutional option was imposed, the gang of 14 entered into an agreement.  This included 7 Democrats who said they would not filibuster except under extraordinary circumstances.  There is no way that a person of integrity could say that Sam Alito or John Roberts was extraordinary circumstances.  So they shot themselves in the foot and they got themselves because they hollered wolf too many times.

Not only that, but they paid a price at the ballot box.  Judicial nominations became an issue in the 2002 elections when the Democrats lost a net of 2 senators and then in 2004 they lost a net of 4 more and President Bush was elected by only 125,000 votes in Ohio -- the Massachusetts Supreme Court had redefined marriage, the Ninth Circuit Court of Appeals had declared the Pledge of Allegiance unconstitutional, the voters came to the box and said that they understood what this was about and they went to the polls and they made a difference in Ohio and in other places.  The marriage amendment was on the ballot in Ohio and it could easily have accounted for those 125,000 votes.  So they lost 4 Senators in 2004, 2 in 2002, and that is 6; they lost the presidential race; Alito was confirmed; Roberts was confirmed - that is 9.  They only kept 3 of us from being on the bench.  That's 9 to 3.  In baseball, that is a solid win.

GIACHINO:  In your book, you make an excellent point that there truly are no rules about how to confirm a judge.  You just walked us through some of that - the backroom deals that are made.  Do you think our Founding Fathers ever envisioned the process to look like what it does today - a criminal trial in some instances?

PICKERING:  Exactly.  You know the co-equal branches of government ought to respect one another.  When Ted Kennedy cross-examines Sam Alito like he is a common criminal and accuses him of bigotry and ethical lapses and when Ted Kennedy cannot understand and comprehend how Sam Alito could have forgotten something that occurred 12 years before -- when the American Bar Association had investigated these same charges and found them to have absolutely no merit and then gave him a unanimous "well-qualified" rating and found him to be a person with highest integrity -- the Founding Fathers could never have intended that.  They intended it to be certainly a more civil proceeding and neither the Senate nor Congress nor the Constitution spells out the process and each Chairman of the Judiciary interprets the Senatorial precedents and courtesies somewhat different so that allows each side to escalate the fight.  But it is the transfer of the political issues from the election of state legislators, Congressman and Senators, to the judicial arena that has politicized the judiciary. That is something that was never intended, it is wrong, it is bad policy and we are going to continue to have this fight until we solve the basic problem.

The gang of 14 gave us a temporary reprieve, but the basic problem still remains and we need a permanent solution.  That is why I recommend a constitutional amendment that will restore the judiciary to the position of being an adjudicator and not a legislator.

GIACHINO:  That's right.  We talk a lot on this program about judges who legislate from the bench.  And in your book you go on to offer some recommendations for fixing the confirmation process. 

Judge Pickering we have a caller on hold.  Can I go ahead and take the call?

PICKERING:  Absolutely.

GIACHINO:  Go ahead caller, it's your turn.

CALLER:  Good evening.  I don't know how familiar you are with Judge Roy Moore?

PICKERING:  I am.

CALLER:  A judge who helped remove him, I think his last name was Pryor, was nominated by President Bush to federal court and so I think we are seeing that the religious ones - or that the Republicans are for them, but in that case you can see that they helped a man who removed Judge Moore.

PICKERING:  I beg to disagree with you totally on that.  Judge Roy Moore is a man for whom I have great respect.  And the issue he is making is absolutely correct.  There is an attempt to remove any reference to religion from the public square and in public policy.  That is wrong.  They do not want there to be any reference to God in the public square and that's wrong too.  Judge Roy Moore decided that he would fight that.  And the way he is fighting that I have to respect.

Judge Pryor, on the other hand, feels that you have to abide by the rule of law and that under the rule of law the Supreme Court had spoken and he had no choice except to follow the Supreme Court precedent.  You could confirm not one conservative judge today if they ever went before Congress and indicated in any degree that they would not follow Supreme Court precedent.  Judge Pryor had no choice except for what he did.

Now Judge Roy Moore was fighting the same battle.  But I have studied Judge Pryor's record and he is one of the most outspoken conservative Catholics - he is pro-life, he has spoken strong about that.  He did not take his children to Disneyland because he did not want to expose them to Gay Pride Week.  So that is a bum rap to put that on Judge Pryor.

CALLER:  I read Judge Moore's book, So Help Me God, and he points it out.  Judge Moore was following what the founders wanted - the state constitution and this should not have been a federal issue.  This was between the citizens and their state whether or not you could have the Ten Commandments in your state.

PICKERING:  It is a misinterpretation of the religious Establishment Clause.  To say that displaying the Ten Commandments is an establishment of religion - which is in the federal constitution, is absolutely ridiculous.  That was never intended by the founders to be that way and Judge Roy Moore is correct.  But our reasoning and our approach might be somewhat different.  Judge Pryor is a conservative judge, has impeccable credentials and was supported solidly by most of the Christian community in Alabama.  Now it was unfortunate that this situation came up with Judge Moore because both conservative judges got caught up in it.

CALLER:  I just think that what Judge Moore did was right.

PICKERING:  And that is one of the great things about America.  I agree with you that Judge Moore basically had a good position - I might have approached it a little differently.  There is an attempt to ban God from public discourse in America and that is wrong.  Christians have just as much right under the Constitution to participate in government as secularists do.  They have the constitutional right to free speech, to petition their government, to participate in politics, to free exercise of religion and Americans have never wanted you to silence one side and let the other side debate.  But that is what the secularists want - they want you to only let them debate and to hush up Christians.

CALLER:  I agree with you.  I guess I am a state's rights person so I just like the way that he approached it.

PICKERING:  We are on the same team.  We don't need to be fighting among ourselves.

GIACHINO:  Reading your book Supreme Chaos would be a good starting point.  What else should the average American who cares about the judicial system and is equally disgusted by the politics playing out in the process do in order to change the process?

PICKERING:  I think in the first place all of us have a responsibility to be Paul Reveres.  We need to carry the message.  I don't think enough people understand the seriousness of this assault on traditional values in America.  I don't think they understand how well organized the other side is.  We have lost the battle - the culture war, with the national media and academia and we have not lost it in mainstream America.  We need to make more people aware and they need to take action at the ballot box.  They need to hold political officeholders responsible whenever they don't support and stand up.  In Florida, you have one senator who has consistently voted against the Bush nominees.

GIACHINO:  Do you think that the current judicial confirmation process will drive away very qualified candidates who just won't be willing to have their lives and their families put under a partisan microscope?

PICKERING:  I am in the process of writing a guest editorial pointing out that danger.  This could be devastating for the judiciary.  I have seen recent studies that show that one out of every two potential nominees say, "thanks but no thanks, I'm not willing to put my family through this humiliating and degrading process."

Justice Thomas, speaking in Alabama in just the last few weeks, said the bright young lawyer, the brightest and best, coming out of our law schools are going in a different direction other than the judicial track because they were not willing to go through this virtual firing squad.  Whenever that happens, it could have a devastating effect on the quality of the judiciary in the future.

GIACHINO:  You mentioned that you are writing a column on that issue.  I understand that there may already be a sequel to Supreme Chaos in the works, is that true?

PICKERING:  Yes, I am half way through.  I was going to write one book that described my personal odyssey and what I went through and then describe what the fight is all about and then make some recommendations and also a fourth section on observations and reflections that you develop from this kind of a proceeding.  When Samuel Alito's hearing was set over until January, we were half way through and my publisher and I decided that we would go ahead and rush through to press the part that I had finished which describes what the battle is all about, the history of the filibuster, the history of the mystery Constitution, the conflict between religion and secularism.  All of these issues are in this first book.  And then I will write the second book which will be my personal odyssey and will build the case for the solutions that I recommend.

GIACHINO:  That is fabulous.  I look forward to reading the second book.  The first book is called Supreme Chaos:  The Politics of Judicial Confirmation and the Culture War.  That's all the time we have this afternoon but I would like to invite you to come back and join us some time to talk about national security issues because I know that you are an expert in that area as well and I know that there is a lot going on with that.

PICKERING:  I would be happy to.  Thank you Renee, you have been a very gracious host.  It was a pleasure to be with you.

GIACHINO:  Thank you very much for coming on the program and for writing the book.

March 23, 2006
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