A Wall Street Journal editorial discusses the Borking of Pickering.

Hard as we look, we can't find the words "Senate Judiciary Committee" in the Constitution. The Founders gave the entire Senate, not a single committee, the power to confirm or reject a President's judicial appointments. Yet in the case of Charles Pickering Sr., President Bush's embattled nominee for the Fifth Circuit Court of Appeals, it looks like the Senate will be denied even a chance to vote.



The 10 liberal Democrats who form a narrow Judiciary majority intend to keep that prerogative for themselves. All voted against letting Judge Pickering's nomination proceed to the floor, even though he has the support of enough Democrats to win a Senate majority. This is just fine with Chairman Pat Leahy and Senate Majority Leader Tom Daschle, who are putting out the notion that this is an ordinary turn of events, just politics as usual.

In fact, it's extremely rare. It didn't happen at all when Republicans controlled the committee during the Clinton years.
The sole Clinton nominee to be defeated was Ronnie White--and he at least made it out of committee and onto the floor, where a majority voted against his nomination.

A nominee was last defeated in committee in 1991, when Democrats stopped Kenneth Ryskamp, nominated by the first
President Bush for the 11th Circuit, on a 7-7 vote. The time before that was 1988, when Reagan nominee Bernard Siegan never made it out of Judiciary. Again, the Democrats were in control. A third Republican nominee, Jeff Sessions, was defeated in 1986, this time to the federal district court; Mr. Sessions is now a Senator from Alabama and sits on Judiciary himself.

The Democrat-run Judiciary Committee almost managed to kill two other circuit-court nominations during the Reagan years: Daniel Manion, nominee for the Seventh Circuit in 1986, and Susan Liebeler, nominee for the Federal Circuit in 1988. In both cases, the first vote--on whether to send the nomination to the floor with a recommendation--failed. A second vote succeeded, however, and the nominations went to the floor without recommendation. Judge Manion was confirmed; Mr. Reagan's term expired before the Senate voted on Ms. Liebeler.

Waging war on judicial nominees is nothing new and both parties have used an array of tactics. Best known is the filibuster, which has been deployed a dozen or so times since 1968, when Republicans filibustered LBJ's nomination of Abe Fortas to be Chief Justice of the United States. Fortas finally withdrew. At least a filibuster requires the acquiescence of 41 or more Senators. In Judge Pickering's case, it's just 10 Senators who are deciding his fate.

Senator Leahy used to disavow this kind of brute partisan force. Five years ago he said: "Every Senator can vote against any nominee. Every Senator has that right. . . . They can vote against them [in] this committee and on the floor. But it is the responsibility of the U.S. Senate to at least bring them to a vote." Joe Biden, who also plans to kill Judge Pickering in committee, said in 1997 that "I also respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor."

What Democrats are doing to Mr. Bush's judges goes far beyond partisan tit-for-tat or anything the Founders meant by the Senate's "advise and consent" power. Democrats are trying to turn themselves into judicial co-nominators, as if they'd won the Presidential election, and using a committee cabal of 10 liberals to do it. The White House and Senate Republicans had better wake up and smell the cordite.



Keep these facts in mind the next time a Democrat tries to blow the "Republicans do it all the time too" smoke up your ass.