May 9, 2005
By Charles W. Pickering Sr.
Wall Street Journal
If the partisan, bitter and mean-spirited battle over judicial confirmation continues to escalate, it threatens not only the quality and independence of the judiciary, but its diversity as well. The confirmation process is broken; it badly needs to be fixed. Each side thinks the other escalated the fight. But the opposition to the Bush nominees is unprecedented.
Let me discuss four possible solutions. First is the ballot box. Those opposing the Bush nominees lost at the ballot box for the election of senators in 2002, in 2004 and in the presidential election in 2004. Part of the reason was filibustering judges. And they will continue to pay a price as long as they are controlled by narrow, extreme special-interest groups.
The second possible solution is the Constitutional solution, referred to as the "nuclear option." But this is a misnomer. Confirming judges by a majority vote is simply following the Constitution. The Constitutional option may be the only appropriate short-term solution if there is another filibuster of a judicial nominee. Stopping the filibuster of judges will not reverse Senate precedent because judges had never been denied confirmation because of a filibuster prior to the past four years. The filibuster as to legislative matters will not be affected.
Any solution that is going to solve this problem long term must be fair and reasonable to both sides and both sides must have meaningful input. Consequently, the third solution that I suggest, and one that I hope Congress will implement, is to pass a statute that could be designated as "The Judicial Confirmation Improvements Act." Such an act should provide that within a certain period of time after a judicial nomination is received a hearing will be held, within a specified time a nominee will be voted out of committee, with or without a favorable recommendation, and within a certain period of time the full Senate will debate and confirm or reject a nominee by majority vote. This will be fair to presidents from either party. Nominees will know that within a reasonable period of time they will be confirmed or not confirmed, and they can get on with life.
Nevertheless, while passage of a statute clearly establishing the procedure and timetable for confirming judges will greatly improve the process, it will continue to be controversial as long as members of the Supreme Court interpret the Constitution according to their "independent judgment" as to society's "evolving standards of decency."
So, the ultimate solution to eliminating the controversy over confirming federal judges will be to adopt a constitutional amendment providing that in the future -- I'm not talking about the past, but in the future -- the sole method for changing the meaning of the Constitution will be by the amendment process. Between 1798 and 1971, the Constitution was amended 16 times. Between 1933 and 1971, our Constitution was amended seven times, an average of one amendment every five to six years. These were substantive amendments dealing with hot-button issues such as abolishing slavery, eliminating the poll tax and granting the right to vote to women and 18-year-olds. But no constitutional amendment has been initiated in the past 34 years. The amendment process worked for 150 years and it can work again if we try it.
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The statutory solution and passing a Constitutional amendment are win-win solutions for both political parties, for prospective nominees, for future presidents and for the Senate -- but above all for the American people. Passing such a statute and such an amendment will not be easy. But if our Founders could find common ground to adopt our Constitution with all of the differences of opinion and the competing theories of government that abounded in the 1780s, surely our leaders of today can come up with a solution.
Here's hoping that wisdom, reason, fairness and cooler heads will prevail, that statesmen will emerge, and find a way out of the present quagmire for the sake of the judiciary, our children and our grandchildren, and the rights of all Americans. We must never give up on our effort to maintain the rule of law, in its truest sense.
Mr. Pickering, formerly a U.S. District Court judge in Mississippi, served on the Fifth Circuit Court of Appeals in 2004, under recess appointment by President Bush. He is now senior counsel at Baker Donelson Bearman Caldwell & Berkowitz.
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