Books: 'Supreme Chaos'
The Politics of Judicial Confirmation and the Culture War

Charles W. Pickering Sr.
Retired Circuit Judge/Senior Counsel, Baker Donelson Bearman
Thursday, January 26, 2006 1:00 PM

Judge Charles W. Pickering Sr. , who was blocked by Democrats from the 5th Circuit Court, was online Thursday, Jan. 26, at 1 p.m. ET to discuss his book, "Supreme Chaos: The Politics of Judicial Confirmation and the Culture War."

Hearings on Capitol Hill for recent Supreme Court nominee Samuel A. Alito Jr. have caused concern to some observers, who say the process has gotten out of hand and become more spectacle than congressional process. In "Supreme Chaos," Pickering says "the judicial confirmation process is broken and badly needs to be fixed," and that is has become a partisan, personal and contentious process. Pickering's own confirmation to the Federal District Court was filibustered by Senate Democrats in 2001.

The Transcript Follows.

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Warrenton, Va.: Yes, we have this "Supreme Chaos" due to the ongoing culture war simply because one side has no respect for the traditional, religious and family values that make up American culture. They prefer to shred and atomize long-standing cultural values (and they delight in doing so) by interpreting everything in terms of minority rights, as if the majority has no overriding communitarian interests. And community values were very strong and influential in the early years of the American republic, and they no doubt influenced the original intent of the Constitution's framers.

Charles W. Pickering Sr.: You're correct. The culture war is at the center of the confirmation battle.

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Burbank, Calif.: You can never control what questions Senators will ask How would you change the confirmation process?

Charles W. Pickering Sr.: There are no detailed controlling rules for the confirmation of judges. The process is governed by historical precedents of the Senate and Senatorial courtesies that have evolved over the years. No Chairman of the Judiciary Committee has interpreted these precedents and courtesies the same way. This lack of detailed process is a major cause of the current fight. It allows each side to accuse the other side of escalation of the fight. It also allows each side to change the process.

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Auburn, Ga.: Why does the country want another Storm Trooper Like Samuel Alito? Another step in sink with the new world order. He will help take away a few more of our rights. Till we have none left.

Charles W. Pickering Sr.: There is a fine line between individual rights and what is necessary to protect all of society. Thankfully, we live in a country where you have a right to express the views you have stated. Those who threaten America today will take away those rights.

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Macon, Ga.: Since you have been in the hot-seat Alito is now in, how do you think that he feels being this close to confirmation?

Charles W. Pickering Sr.: I'm confident he feels relieved and vindicated, though I'm sure he feels washed-out and regrets having been dragged through the mud.

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North Hollywood, Calif.: It is hard to reconcile a nonpartisan judiciary with a partisan legislative branch. Are we headed towards a system that may select judicial nominees with the least amount of paper trail in how they think on issues?

Charles W. Pickering Sr.: Our founders envisioned an impartial judiciary that is nonpartisan. Unfortunately, when the concept of interpreting the Constitution as a Mystery Constitution-- that is one that changes over time and you only know what it means when five judges meet in private and determine its meaning-- that made the Court more of a political body. That was not its intended role. I fear we are headed in the direction where nominees will be "lackluster" nominees with little or no paper trail. When that happens, the American people will be the losers. It will negatively impact the quality, ability, independence, and even the diversity of the judiciary.

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Washington, D.C.: What concrete steps/rules would you like to see implemented to change this? How can the behavior of Senators be altered?

Charles W. Pickering Sr.: I think it is imperative that the hearings be returned to a civil and respectful process. The highly partisan, mean spirited event that confirmation has become does not reflect well on the Senate. The confirmation fight has not been the Senate's finest hour, but only the Senate itself can solve this aspect of the problem. On a more concrete basis, I suggest adoption of a statute that would spell out the details for confirmation that would be fair and reasonable for both sides. A specified time should be established for hearings and eventually an up or down vote for each nominee before the full Senate and confirmation by majority vote. This would be fair to future Presidents whether Democrat or Republican and nominees would know that within a reasonable period of time they would either be confirmed or not confirmed and could get on with their lives. To be accomplished, this would need to take effect for the next administration. Even more importantly, I propose a Constitutional Amendment that will provide in the future the meaning of the Constitution can be changed only by the amendment process as set out in Article V. That means that judges in the future will interpret the Constitution and not legislate or change the meaning of the contract between our government and the people. That would remove most of the tension over the confirmation of judges.

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Fort Myers, Fla.: If the President selects nominees on the basis of their judicial philosophy (how they will vote in certain cases), why can't the Senate, under its constitutional power to offer "advice and consent," reject nominees for the same reason?

And please, do not insult my intelligence by suggesting that the president does not have an ideological litmus test for choosing his judicial nominees. We know better.

Charles W. Pickering Sr.: The Constitution says the President will nominate. The Senate is given no role under the Constitution in the nomination of nominees. The Senate only has a role in "advice and consent". From the earliest writings of our founders, it is obvious that this was intended as a check on the appointment of unqualified individuals and the President having won the popular vote was given wide discretion so long as he nominated qualified persons of integrity. Throughout most of our history, this was the process. Only since the concept of a living, changing, Mystery Constitution emerged full-blown were all of the hot-button social issues like abortion, definition of marriage, reference to God in the public arena, and pornography moved from the political arena-- the election of state legislators, congressmen, and senators to the confirmation of judges. The special interest groups opposing the Bush nominees and some Democrat Senators say that judicial philosophy should enter into the evaluation by the Senate, but then rather than rest their case on this argument, they try to destroy the reputation and character of the nominees as they did in accusing Judge Alito of ethical lapses and bigotry.

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Washington, D.C.: What are your thoughts on the current Supreme Court judges conducting the "interview" of the Presidential nominee?

Charles W. Pickering Sr.: This would put the Court in the position of becoming partisan and I think should be avoided. When President Bush announced in 2001 that he would not use the American Bar Association to vet his nominees before they were nominated, the Democrat Senators publicly and loudly demanded that the ABA be involved. They noted the ABA had been involved for fifty years, that it was an impartial evaluator with no axe to grind, with the best contacts to determine the qualifications of a nominee, and that its evaluation was the "gold standard" for evaluating nominees. They completely reversed themselves one hundred eighty degrees with no explanation, no apology, and no shame. The ABA committee unanimously gave Sam Alito its highest rating and found him to be a person of the highest caliber as to integrity. The Democrat Senators completely ignored this evaluation, never commented on it, and questioned Judge Alito like he was a common criminal. The third branch deserves more respect. If those who demanded the ABA evaluation be undertaken would honor it and consider it, it would not be necessary to be considering alternatives such as Supreme Court evaluation. The Supreme Court should not be put in the position of evaluating its own members before they're confirmed.

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Arlington, Va.: Why did Senators ask Alito (or at least seem to ask) how he would vote on certain issues? Isn't that illegal?

Charles W. Pickering Sr.: Because the special interest groups that control the situation demanded such.

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Washington, D.C.: Wasn't Bolton reported to the full Senate after a negative vote in committee? Why not Judges?

Charles W. Pickering Sr.: That could be done, but the leaked Democrat memos reveal that the far left special interest groups wanted a commitment in advance from the Democrats on the Judiciary Committee that a nominee who was turned down on a straight party line vote would not get a hearing before the full Senate. They apparently got this commitment. In 2002, when I was voted down in Committee on a straight party line vote, Senator Specter then moved that I be reported out with no recommendation. That motion was also defeated on a party line vote. Senator Specter then moved that I be reported out with an unfavorable recommendation. That too was voted down on a straight party line vote. In other words, the Democrats on the Committee voted to kill my nomination in committee and deprived the majority of the Senators who favored my confirmation from an up and down vote.

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Alief, Tex.: Don't you think your performance on the bench during the recess appointment allayed any fears the Democrats expressed about your fairness?

Charles W. Pickering Sr.: It should have.

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Fort Myers, Fla.: You just said the following:

"I propose a Constitutional Amendment that will provide in the future the meaning of the Constitution can be changed only by the amendment process as set out in Article V. That means that judges in the future will interpret the Constitution and not legislate or change the meaning of the contract between our government and the people. That would remove most of the tension over the confirmation of judges."

Would you also advocate for a constitutional amendment that would prohibit the president from changing the meaning of the constitution, as he has done with the the Fourth Amendment and the NSA domestic spying program?

Charles W. Pickering Sr.: No decision has yet been made that he violated the Constitution. That is a question for the Courts.

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Port Angeles, Wash.: Now that we all can "watch" Senate confirmation debates and questions, thru the Internet, live TV coverage, liberal and conservative news networks, I find myself with little respect for the new Justices. I feel strongly that personal queries and name calling destroys the honor I have always held for the Supreme Court. Is this a fair statement?

Charles W. Pickering Sr.: Most Americans have a basic sense of fairness. They do not like to see decent, good human beings subjected to self-righteous, holier than though, judgmental attitudes as was Sam Alito. I think the revulsion of most Americans was not directed toward the judiciary or the judicial nominees, but at the shabby treatment he received at the hands of Senator Kennedy who could not understand that Judge Alito failed to remember something that happened twelve years ago despite the fact that the ABA Committee found Judge Alito's explanation perfectly reasonable.

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washingtonpost.com: This concludes today's discussion with Charles W. Pickering Sr. Thank you for your questions.

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