Pickering

A good editorial in the Washington Post:(ya gotta watch ol' GW - he's a slippery fella)

Washington Post Editorial:
End Run for Mr. Pickering
Sunday, January 18, 2004

PRESIDENT BUSH'S decision Friday to install controversial judicial nominee Charles W. Pickering Sr. on the U.S. Court of Appeals for the 5th Circuit using a recess appointment is yet another unwarranted escalation of the judicial nomination wars. We have lamented some of the attacks on Mr. Pickering, but his record as a federal trial judge is undistinguished and downright disturbing, and Senate Democrats are reasonable to oppose his nomination. Installing him using a constitutional end run around the Senate only inflames passions. The right path is to build consensus that nonpartisanship and excellence are the appropriate criteria for judicial selection.



The recess appointment -- the president's power to temporarily install federal officers without Senate confirmation -- is a uniquely bad instrument for federal judges. Judges are supposed to be politically independent. Yet Mr. Pickering will be a controversial nominee before the Senate as he considers cases and will lose his job in a year if he is not confirmed. Even his supporters should understand that he will be subject to the political pressures from which judges are supposed to be insulated.

We don't rule out the recess appointment in all circumstances. At times judges have commanded such uniform support that presidents have used the power to get them in office quickly, leaving the formality of confirmation for later. We supported, moreover, President Bill Clinton's lame-duck recess appointment to the U.S. Court of Appeals for the 4th Circuit of Roger Gregory, who, like Mr. Pickering, was held up in the Senate. But there was a big difference: Mr. Gregory was not controversial. His nomination, in fact, was eventually resubmitted to the Senate by none other than President Bush. It was held up initially because of a long-standing dispute over appointments to that court, not because of any concerns about the nominee himself. There was reason to hope that Mr. Gregory would be confirmed -- as, indeed, he was. In this case, Mr. Bush has used a recess appointment for someone who cannot, on his merits, garner a vote of confidence from the Senate and who has no prospect of confirmation in the current Congress.

We don't support the filibuster of nominees, but the answer to Democratic obstruction cannot be the appointment or installation of temporary judges who get to hear a few cases over a few months, all the while looking over their shoulders at the senators who oppose them. The great damage the judicial nomination wars threaten over the long term is to erode judicial independence, to make judges constantly aware of how they might have to answer to the Senate for a given opinion. Using the recess appointment to place Mr. Pickering on the 5th Circuit has made that danger into a reality.