Confirmation Watch Update

The judicial confirmation process continues to stall in the Senate, and it appears the war over several embattled nominees has only just begun.

This week, Judiciary Committee Ranking Member Orrin Hatch (R-UT) invoked his right under Senate rules to delay, for one week, the scheduled committee vote of Judge Charles Pickering, the president’s nomination to the Fifth Circuit Court of Appeals. He did so with the hope that at least one of his Democratic colleagues on the committee will change his mind on Pickering’s nomination. As it stands now, the move may only delay the inevitable, as the vote is all-but-certain to be a party-line 10-9 vote against the nomination.

Pickering has been the subject of stark criticism by opponents of his confirmation. He has been labeled a "racist" for failing to condemn Mississippi’s ban on interracial marriage in an article he wrote as a law student more than 40 years ago. Pickering’s proponents claim the charges are politically motivated, and point to his courageous testimony in 1967 against the grand wizard of the KKK when he was a county prosecutor in Mississippi. According to Pickering supporter Charles Evers, the brother of slain civil rights leader Medgar Evers, "The only two people against Judge Pickering they [opponents] organized is the Ku Klux Klan in Mississippi and the NAACP, the only two."

Traditionally, nominees who are objected to in committee are forwarded to the Senate floor for a vote with an "unfavorable" recommendation, or are forwarded "without recommendation." But Senate Majority Leader Tom Daschle (D-SD) has vowed to prevent Pickering’s nomination from getting to the Senate floor if the committee votes against him. He argues, "Taking . . . a district court judge out of committee after a negative vote is unprecedented."

However, according the Justice Department, there have only been four instances in history that a nominee was not granted a floor vote after failing to get approval in committee.

Meanwhile, Judge D. Brooks Smith, the president’s nominee to the Third Circuit Court of Appeals, has come under fire as opponents have attacked his handling of so-called "conflicts of interests" and his interpretations of laws regarding the workplace, the disabled and the environment as a district court judge. As with Pickering, interest groups have made it a top priority to derail the confirmation of Judge Smith.

Other nominees that are sure to face similar scrutiny are Sixth Circuit nominee Jeffrey Sutton; Ninth Circuit nominee Carolyn Kuhl; Texas Supreme Court Justice Priscilla Owen, a candidate for the Fifth Circuit; Tenth Circuit nominee Tim Tymkovich; and Miguel Estrada, a nominee for the District of Columbia Circuit Court.

While the Center does not endorse any of the nominees, we remain dedicated to encouraging the timely fulfillment of the Senate’s constitutional duty to the confirmation process — including the belief that every nominee should get a vote by the full Senate. The Constitution reads, "[the president] shall nominate, and with the advice and consent of the Senate . . ." Not "with the advice and consent of only the Senate Judiciary Committee."

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