FLASHBACK: January 20, 2004Bush Got It Right on Pickering, the Post Got It Wrong

(Judge Pickering has recently announced his retirement from the Fifth Circuit Court of Appeals.

The only reason he was able to finally get on the appellate court was because President Bush used his recess appointment powers to put him there.

In typical liberal fasion, the Washington Post lamented the move.

This piece originally appeared on January 20, 2004.)

On Saturday, the Washington Post ran an editorial titled “End Run for Mr. Pickering,” lamenting President Bush’s decision to recess-appoint Judge Charles W. Pickering to the Fifth Circuit Court of Appeals. His actions were a direct response to the Democrats’ continued filibuster of Pickering’s nomination.

Instead of simply acknowledging that President Bush was fully within his right to make the appointment and that, even though they disagreed with Pickering’s nomination, the President is right to circumvent a filibustering, stonewalling minority of Senators who won’t allow a vote on the nomination to fill the vacancy classified as a “judicial emergency” by the National Judicial Conference, the Post was disappointed in the politics of it all — as if the White House were to blame.

The Post‘s editorial follows, in pieces (and emphasis added), with reality-based rejoinders.

Post: President Bush’s decision Friday to install controversial judicial nominee Charles W. Pickering Sr. on the U.S. Court of Appeals for the 5th Circuit using a recess appointment is yet another unwarranted escalation of the judicial nomination wars.

Reality: “Another unwarranted escalation of the judicial nomination wars”? The fact is that it is the liberal minority in the Senate which has held up the Pickering nomination and forced the President’s hand.


Post: We have lamented some of the attacks on Mr. Pickering, but his record as a federal trial judge is undistinguished and downright disturbing, and Senate Democrats are reasonable to oppose his nomination. Installing him using a constitutional end run around the Senate only inflames passions.

Reality: How does this “constitutional end run” compare to an unconstitutional action by Senate Democrats?


Post: The right path is to build consensus that nonpartisanship and excellence are the appropriate criteria for judicial selection.

Reality: Tell that to the Left. They and their pro-abortion, anti-conservative supporters make it nigh impossible to avoid partisanship in the nomination of circuit court judges.


Post: The recess appointment — the president’s power to temporarily install federal officers without Senate confirmation — is a uniquely bad instrument for federal judges. Judges are supposed to be politically independent.

Reality: Again, this is not a principle to which liberal Senate Democrats actually subscribe. It is the Left that has repeatedly forced the nomination process to become so harshly political.


Post: Yet Mr. Pickering will be a controversial nominee before the Senate as he considers cases and will lose his job in a year if he is not confirmed. Even his supporters should understand that he will be subject to the political pressures from which judges are supposed to be insulated.

Reality: Once more, who is forcing the political issue? President Bush merely nominated him, it was the Democrats and their minions who have made it an embarrassing political sideshow.


Post: We don’t rule out the recess appointment in all circumstances. At times judges have commanded such uniform support that presidents have used the power to get them in office quickly, leaving the formality of confirmation for later. We supported, moreover, President Bill Clinton’s lame-duck recess appointment to the U.S. Court of Appeals for the 4th Circuit of Roger Gregory, who, like Mr. Pickering, was held up in the Senate. But there was a big difference: Mr. Gregory was not controversial. His nomination, in fact, was eventually resubmitted to the Senate by none other than President Bush. It was held up initially because of a long-standing dispute over appointments to that court, not because of any concerns about the nominee himself. There was reason to hope that Mr. Gregory would be confirmed — as, indeed, he was.

Reality: A little history on the Gregory nomination — Roger Gregory, who is black, is from Virginia and was nominated to a seat on the Fourth Circuit long regarded as belonging to North Carolina. Clinton nominated Mr. Gregory knowing the territorial feud that would erupt and that the GOP would get most, if not all, of the negative press over the delay of his nomination to be the first black judge confirmed by the Senate to the Fourth Circuit.

This was typical of Clinton’s injection of politics into the judicial nomination and confirmation process, not to mention the fact that Clinton recess appointed him on December 27, 2000, a mere three-and-a-half weeks before Bush was inaugurated and days before Congress reconvened, meaning that Mr. Gregory’s time on the bench, unless re-nominated, would expire after one year.

The Post, on December 28, 2000, even noted the politics of Gregory’s nomination:

    The appointment effectively lobs a political hand grenade to Senate GOP leaders, who have faced criticism for blocking the nominations of four African Americans, including Gregory, to the Richmond appeals court during Clinton’s term. The Congressional Black Caucus cites studies showing that black judicial nominees have waited significantly longer for confirmation hearings since Republicans took control of Congress in 1995.

    White House aides were also eager to put the Senate’s record on black judges in play in the midst of controversy over President-elect Bush’s attorney general nominee, Sen. John D. Ashcroft (R-Mo.), who has been roundly condemned by civil rights groups for torpedoing the nomination of another African American judicial candidate, Missouri Supreme Court Justice Ronnie White.

    Clinton has appointed 62 African American judges to the federal bench, but he complained yesterday that Republicans have opposed too many other black nominees, especially in the 4th Circuit. “Time and again, for five years now, I have tried and tried to fill these gaps in justice and equality,” Clinton said, “and time and again, for five years now, the Senate majority has stood in the way.”

Also, if the Post is so concerned about the fact that Pickering “will lose his job in a year if he is not confirmed” and that “his supporters should understand that he will be subject to the political pressures from which judges are supposed to be insulated,” then why did they include the following in a December 31, 2000, editorial titled “Avoiding the Senate” praising Clinton’s recess appointment of Mr. Gregory?

    A recess appointment by a lame duck president is a thumb in the Senate’s eye, and normally not the way to fill a vacancy. But it does put a worthy nominee on the court, albeit just for a year. And it is a challenge to the Senate to fix a system that has come to be too readily abused.

    Mr. Clinton intends to renominate Mr. Gregory when Congress reconvenes. The Senate will thus have a further opportunity, if it wishes, to act on the nomination in the normal way. Even so, the action is as likely to rile as to shame the members at whom it is mainly, and rightly, aimed. The effect could thus be to exacerbate rather than ease the politicization of the nomination process. But wise senators will take this not as an affront, but as a warning that the system has gone dangerously awry. They themselves risk being scarred if they stay on this ruinous course.


Post: In this case, Mr. Bush has used a recess appointment for someone who cannot, on his merits, garner a vote of confidence from the Senate and who has no prospect of confirmation in the current Congress.

Reality: Memo to the Washington Post editorial board: Pickering cannot get the “vote of confidence” because the Democrats refuse to allow a vote on his nomination.


Post: We don’t support the filibuster of nominees, but the answer to Democratic obstruction cannot be the appointment or installation of temporary judges who get to hear a few cases over a few months, all the while looking over their shoulders at the senators who oppose them.

Reality: How else should a president deal with such an unconstitutional move by the liberal Senate minority? Should he just allow them to have their way, blocking the nominations he has every right to make and, thereby, blocking the doors of justice for the people of the Fifth Circuit?


Post: The great damage the judicial nomination wars threaten over the long term is to erode judicial independence, to make judges constantly aware of how they might have to answer to the Senate for a given opinion. Using the recess appointment to place Mr. Pickering on the 5th Circuit has made that danger into a reality.

Reality: This is exactly the argument the Republicans have been making to battle the actions of the obstructionist Democrats.