October 03, 2003,
There were two sure bets going into Thursday's meeting of the Senate Judiciary Committee. One was that Charles Pickering, the embattled nominee for a place on the Fifth Circuit Court of Appeals, would be approved by a straight party-line vote. The other was that Democrats would spend a great deal of time discussing Pickering's alleged "insensitivity" to racial issues.
It could hardly have been otherwise; after all, Democrats have been making the charges since Pickering was first nominated on May 25, 2001. Still, some Republican eyes rolled when Vermont Democratic Sen. Patrick Leahy suggested that even the timing of the committee's meeting was tinged with racism.
Chairman Orrin Hatch had originally scheduled the Pickering vote for last week (it ended up being delayed until Thursday). As it turns out, the Congressional Black Caucus Foundation was meeting in Washington last week, and in that juxtaposition of schedules, Leahy saw the shadow of racial bias.
"I was particularly sorry that the Republican majority had chosen that week to resurrect the [Pickering] nomination because of the insensitivity it showed to the Congressional Black Caucus," Leahy said Thursday. "I know that Chairman Hatch tried to be sensitive to other members of Congress and I know that he would not go out of his way to offend another member of Congress, so I am left to wonder why this matter is being forced through the committee in this way."
That was just the beginning. As the meeting wore on, Massachusetts Democrat Edward Kennedy argued that Pickering should be rejected because, as U.S. District Court judge in Mississippi, he "displayed a pattern of hostility toward...claims brought under civil rights statutes," and would, if confirmed to the higher court, "roll back civil rights." Even worse, Kennedy said, the nomination spoke volumes "about President Bush's own lack of commitment to civil rights."
New York's Charles Schumer and Illinois's Richard Durbin argued that Pickering should be rejected because of his actions in a 1994 cross-burning case and because of his Senate patron, former Majority Leader Trent Lott. "Renominating Judge Pickering especially in the wake of the Trent Lott affair is a thumb in the eye of the black community," Schumer said.
And California Democrat Dianne Feinstein read from a letter written by the head of the Washington bureau of the NAACP which argued that Pickering should be rejected because of his "stated and demonstrated affection for segregationist policies."
It all seemed a confirmation of something Hatch had said as the meeting got underway. Reading a long, detailed defense of Pickering, the chairman predicted, "I expect we will hear today a recycling of the tired arguments and well-worn parade of horribles which are horrible in large part because of their gross distortion of Judge Pickering's upstanding reputation and record."
He was right, but even though the rhetoric was pointed, and the stakes high, there was a sense of listlessness in the room. In the nearly two and a half years that the Pickering nomination has been argued, both sides have recited their lines so many times that even the senators making the arguments seemed a bit bored. As Hatch spoke, repeating the story of Pickering's testimony against the Ku Klux Klan in the 1960s, Schumer chatted with Durbin. As Kennedy spoke, repeating the allegations of Pickering's alleged insensitivity, Hatch got up and walked around the table. Other senators milled about. Some reporters read newspapers.
The committee was on autopilot until the speaking order got down to one of the panel's newest members, South Carolina Republican Lindsey Graham. Graham was not in the Senate last year, when the Pickering nomination was the subject of a bitter fight and Democrats, then in control, killed the nomination. But since Graham has been in office, he has seen Democrats filibuster other appeals-court nominees, and he knows that is likely to happen to Pickering as well. Up until now, Graham has kept a relatively low profile on the committee, but as he spoke, his voice rose and his sense of outrage began to radiate throughout the room. His speech, quoted here at some length, gave a tired committee a newcomer's sense of what the judicial deadlock has done to the Senate.
Graham took as his starting point a statement that Schumer had made earlier in the meeting. Slamming Pickering over the cross-burning case, and then criticizing the White House for nominating him, Schumer said, "We'd prefer to find consensus, agreement, and comity. But if the administration insists on a fight, then a fight they'll get."
"If I thought that Judge Pickering somehow condoned cross burning, it would be the easiest decision in the world to vote no," Graham began. "And if you really believe that, then you're absolutely right, you should vote no."
The truth is, the man's been under siege for a couple of years now, and I can only imagine what he and his family went through. It's been total hell. There's nothing worse you can say about somebody other than they're a racist. And there's nothing worse you can say about a southern white person than that they're a racist. We have to live with that all the time, and it's our own fault to a certain extent.By the end, Graham was nearly in tears and the room was silent. It was an almost stunning conclusion to a meeting that had just a few minutes before seemed entirely recycled and pre-scripted.
Of course, no minds were changed; when Graham finished, Hatch ordered that the roll be called, and Pickering was approved, with all ten Republicans voting for him and all nine Democrats voting against him. But Graham's speech hinted at the depth of Republican anger over the filibusters that have so far stopped three appeals-court nominations and threatened others (including Pickering's).
Will Republicans really fight in the way Schumer seemed to invite and Graham seemed ready to accept? There's no way of knowing, but at least for a moment on Thursday, they seemed angry enough to.