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Jewish World Review March 25, 2002 /12 Nisan, 5762

Nat Hentoff

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A scar on the Senate | When the Senate Judiciary Committee killed the presidential nomination of judge Charles Pickering to the Fifth Circuit Court of Appeals by a strict party-line 10-9 vote, Chairman Patrick Leahy, a Vermont Democrat, said triumphantly: "We have made the Constitution, work and we have made this committee work."

I challenge Sen. Leahy to find in the Constitution, in James Madison's notes on the debates as the Constitution was being written, and in the Federalist Papers, any justification for allowing a single committee, no matter which party is in the majority, to veto a federal judicial nomination.

Article II, Section 2 of the Constitution says clearly that the president shall nominate judges "with the advice and consent of the Senate." There is no footnote giving the final authority to the Judiciary Committee. Its veto power is the result of Senate rule. A constitutional amendment is not required to change that rule. All it requires is enough senators who believe in a process that is democratic.

Before Charles Pickering was dismissed, Pennsylvania Sen. Arlen Specter, a Republican who understands constitutional democracy, urged his colleagues to send Pickering's nomination to the floor so that the full Senate could advise and consent. Both Republican resolutions to that effect were voted down 10-9. Even if they had passed, Democratic Majority leader Tom Daschle had vowed to block a full Senate vote.

Before the final votes were taken, Sen. Specter predicted that this partisan warfare, including the refusal to give Judge Pickering at least a fair vote on the floor, would "leave a scar" on the Senate. And not for the first time.

Committee member Charles Schumer, a New York Democrat, had made it clear for months that he will hold judicial nominees to his own ideological tests. After Judge Pickering went down, Sen. Schumer said grandly: "There is clearly no mandate from the American people to stack the courts with conservative ideologues. So, if the White House persists in sending us nominees to throw the courts out of whack with the country, we have no choice but to vote 'no.'"

The gloating Schumer did not tell us how he knows what "the American people" want in their federal judges. Has it not occurred to him that the clearest way to find out is by allowing all the members of the Senate to vote on the judicial nominee, no matter what the Judiciary Committee decides? That's the countrywide advice to the president the Framers put into the Constitution.

Leahy, who prides himself on his knowledge and fealty to the Constitution, said righteously after the Pickering vote that the Senate's constitutional role "is advise and consent. It isn't advise and rubber stamp." That is, indeed, according to the Constitution, the whole Senate's role -- not just one committee in the Senate.

I wonder at what point such good government outfits as the civil rights organizations, People for the American Way, and Alliance for Justice will join Specter in urging the Senate to change its rule and abide by Article II, Section 2 of the Constitution. I'm not very hopeful, however, that the impetus will come from them. They ignore the fact that, if this game continues to be played by the current rules, many of their candidates will lose on strict party-line votes when the Republicans next have the majority on the Senate Judiciary Committee.

If democratic change is to come, the arena from now on will be the congressional and presidential elections. Candidates of both parties should be challenged by their opponents, by citizens, and by the media on whether and when the entire Senate will make the final decision on who sits in the federal courts, and on the Supreme Court. I was mordantly amused when, after the vote on Pickering, Sen. Diane Feinstein of California told The Washington Post, in justifying her vote against Pickering, that he is a "very polarizing figure."

This is the very polarizing senator who said on NBC's "Meet The Press" recently that she would not vote for any judicial nominee whom she believes would overturn Roe vs. Wade. Period. Using Schumer's terminology, her absolutist pro-abortion-rights criterion is "out of whack" with a considerable percentage of Americans. Schumer and other members of the Judiciary Committee, in both parties, owe it to the country to tell us their definition of what makes a judicial nominee "in whack" with the country -- and also how they define "judicial independence."

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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