Strange Justice: The liberal coalition that killed the Pickering nomination - Patrick Leahy's campaign against Charles Pickering

National Review, April 8, 2002 by Byron York

Late in the afternoon on Thursday, March 14, in a crowded hallway in the Dirksen Senate Office Building, Bruce Cohen, a top aide to Senate Judiciary Committee chairman Patrick Leahy, warmly greeted Elizabeth Cavendish, the legal director and general counsel of the National Abortion Rights Action League. "Thank you," said Cohen. "No, thank you!" said Cavendish, smiling and grasping Cohen's hand.

The cause of the smiling and thanking was the defeat, just minutes earlier, of the nomination of Charles Pickering to a place on the Fifth Circuit Court of Appeals. The committee's narrow Democratic majority, led by Leahy, killed the nomination on a 10-9 party-line vote. What made the exchange between Cohen and Cavendish noteworthy was that a good deal of the debate leading up to the vote had concerned the role that liberal groups such as NARAL, People for the American Way, NOW, the Alliance for Justice, and the Leadership Conference on Civil Rights were playing in the opposition to the Pickering nomination.

Republicans charged that the groups-which have formed a coalition to oppose Bush nominees-were working in close coordination with committee Democrats. "Judge Pickering has been viciously attacked by outside, left-wing, liberal groups," said Iowa Republican Charles Grassley, "and unfortunately, the Democratic party has been more than willing to do the bidding of these groups, here in the Senate, to oppose Judge Pickering."

It's a charge Republicans have made for years, at least since the days of the Robert Bork and Clarence Thomas confirmation battles. But for all their anger-and there was plenty in the room during the Pickering vote-Republicans have never really offered much evidence to support their allegations. Yes, groups in the coalition are powerful and well funded-People for the American Way's budget dwarfs those of the groups that tried to defend Pickering-but do they really exercise inordinate influence on the Democratic senators who cast votes on the Judiciary Committee? It's a question that is impossible to answer definitively-no senator would admit that he follows the coalition's lead-but a close look at events during the Pickering battle suggests that the groups did indeed work in particularly close collaboration with Democrats. Coalition members, especially People for the American Way, did much of the groundwork for the case against Pickering, acting as the de facto research arm of the committee's Democratic majority. More important, Democrats seemed unusually responsive to the coalition's concerns; throughout the confirmation fight, Leahy's actions, along with those of many of his colleagues, closely tracked demands made by the coalition.

In one instance, Democrats announced plans to hold a rare second hearing for Pickering almost immediately after the coalition demanded that they do so (and at a time when there was no grassroots outcry to delay the nomination or to give it unusually close scrutiny). In another instance, Democrats abandoned tentative plans to move ahead on Pickering's confirmation after the groups demanded the nomination be delayed again to allow them more time to delve into Pickering's record. And in yet a third instance, Democrats, when questioning Pickering, appear to have relied extensively on documents gathered by People for the American Way rather than the committee's own researchers.

Together, the coalition and their Democratic allies mounted an extraordinarily effective campaign against Pickering. While that fight is now over, the groups are preparing for bigger battles to come. Taking a detailed look at the coalition's involvement in the Pickering nomination provides a preview of what will happen in the coming confirmation conflicts over some of President Bush's most anticipated appellate-court nominees-as well as what is expected to be the biggest fight of all, the battle over the next justice named to the Supreme Court.

President Bush nominated Pickering on May 25, 2001, making him among the administration's earliest choices for the federal bench. Pickering, who had served eleven years on the U.S. District Court in Mississippi, quickly completed his Senate questionnaire and FBI background check, and by July 23, 2001, the American Bar Association finished its detailed evaluation of his time on the bench, giving him its highest rating: "well qualified." Republicans had hoped that Leahy would hold a confirmation hearing for Pickering before the August recess, but none was scheduled. After Congress returned to work, the events of September 11 led to more delays. Finally, a hearing was set for October 18.

The nomination received almost no media attention; the papers were filled with news of the war on terrorism and, in the days before the hearing, the anthrax scare on Capitol Hill. But away from the headlines, People for the American Way had begun a campaign against the nomination. On October 15, the group sent out an urgent e-mail to its "activist network" headlined "controversial hearing should be postponed or extended." The e-mail said that "serious questions have been raised about [Pickering's] record on civil rights and reproductive choice." It said Pickering had "hundreds of published and unpublished opinions that should be reviewed," and that a hearing on October 18 would "make it difficult to fully research Judge Pickering's complete record." The e- mail urged liberal activists to get in touch with committee senators to "demand that Judge Pickering's hearing be postponed or extended to a second session."