IE 11 is not supported. For an optimal experience visit our site on another browser.

The covert appointment of Judge Pickering

Why sneaking in an appointment like this is bad for moderates of both parties.

Pickering’s appointment has been held up for years by Democrats who say he is racially insensitive and a foe of civil rights. They have used various procedural rules to block Pickering and five other candidates while approving 168 others.

A president should have, not just the authority, but the ability to appoint federal judges without constant interference from the Senate.  But that does not mean that the Senate should not play a role.

The constitution mandates the “advice and consent of the Senate.”

As a practical matter, I believe the Senate can help moderate out of the mainstream choices, keeping out far left wing, or right wing judges and hopefully, just people who aren’t qualified. The opposing party can only choose a limited number of candidates to challenge.

Generally, the Republicans attempted to exclude Clinton’s more liberal appointees. Now, the Democrats are doing the same with some of Bush’s more conservative ones.

This so-called recess appointment of Pickering makes that role meaningless. The president is circumventing the Senate, appointing a judge while the Senate is not in session -– an appointment that remains in place until the end of the current congressional term.

President Clinton did it in 2000, appointing Judge Rover Gregory to the Fourth Circuit Court of Appeals.  While Gregory was eventually confirmed by the Senate, it is a dangerous business for a president of either party.

Clinton was accused of selecting certain judges just because of their race, and Bush was accused of selecting some who are insensitive to race. Most galling about all of this—members of both of both parties making the polar opposite arguments depending on whether they have the presidency.

Senator Trent Lott is a classic case in point. When Clinton did it, he said that any recess appointments should be opposed. Now, he is supporting this recess appointment. Many Democrats are equally disingenuous.

Look, most Americans are somewhere in the middle: The 2000 election was almost a tie, and the Senate was almost evenly divided. Judicial appointments should generally reflect that. The bottom line is, I don’t completely trust the President or the Congress alone when it comes to these appointments. The framers of constitution didn’t either. So when a president of either party tries to keep the Senate out, the moderates of both parties should say, “That is bad for us.”