Two Federal Judges Describe Their Confirmation Hearing Experiences

GWEN IFILL:

Now to the Senate's ongoing battle of wills over President Bush's judicial nominations. While the Senate moves toward a standoff this week or next, the nominees themselves are cooling their heels on the sidelines, waiting for others to determine their fates. Two jurists who have been through the judicial nominating wringer join us tonight to talk about that experience.

Judge Charles Pickering of Mississippi was nominated to the Fifth Circuit Court of Appeals by President Bush in 2001. Senate Democrats said he was hostile to civil rights, and used the filibuster to block his confirmation. He did eventually get the appeals court post, but only after President Bush appointed him while Congress was out of session. He served for 11 months.

Judge James Wynn, who sits on the North Carolina state court of appeals, never got as far as a hearing. President Clinton twice nominated him to the Federal Fourth Circuit Court of Appeals in Richmond, but Sen. Jesse Helms said the circuit needed no more judges, and refused to lend his support.

Gentlemen, welcome so much. Thank you very much for joining us. We're hoping you can help sort some of this out from your unique point of view. Judge Pickering, starting with you. Tell us what your experience was like during that period of time when you had gotten what you dreamed of, which was a federal court nomination and then discovered that maybe you weren't going to get it after all.

JUDGE CHARLES PICKERING:

Well, actually, Gwen, I served as a district judge for ten years. I had been confirmed by the Senate unanimously in 1990 and then I was nominated by the Fifth Circuit Court of Appeals, which would have been a promotion. And then for five months there was no opposition to my nomination. I naively told people that I was a non-controversial nominee. Little did I know what was to come down the road.

It's never pleasant to hear your record distorted. It's never pleasant to be accused of things that are not true. But the important thing is not how this played out with us individually. The important thing is that this mean-spirited, very bitter partisan fight over confirmation is going to threaten the future of the independence, the quality and even the diversity of the court. And that's the sad thing about this.

GWEN IFILL:

Do you think Judge Pickering that something changed between the time that you were nominated and the time your nomination was effectively derailed?

JUDGE CHARLES PICKERING:

Without question. Well, you said from the time I was nominated, which was five months. They selected some of the Bush nominees immediately to oppose. I think if I had not been one of the first to come up, then I probably would have been confirmed. They did not describe me as being – they divided us into three categories, and I was not in what they perceived to be the worst; that is those who opposed my nomination. I was in the middle group.

I came up — I was one of the first. They saw a target, and they took their shot, and they, three days before I came up for my hearing, the people from the American Way sent out an e-mail. And in December 2001, they said it would be nasty and contentious, but they could defeat me because they had the support of Democrats. I thought they were bragging, but they were not.

GWEN IFILL:

Judge Wynn, let's talk about your experience. Did you feel like Judge Pickering felt, that you were a target?

JUDGE JAMES WYNN:

Well, I didn't necessarily feel as though I was a target per se. My situation was somewhat different. In my particular case, Sen. John Edwards had recommended me to President Clinton to fill a seat on the Fourth Circuit U.S. Court of Appeals; the Court of Appeals of the Fourth Appeals at that time, of course, had never had an African American even though they had the highest population of the African Americans in the country, and the state of North Carolina had no judge on that court even though it is the largest of the five states, to comprise the states for that particular circuit.

In my instance, the sole instance in which I was not able to get even a hearing was because Sen. Jesse Helms would not turn in the so-called blue slip. And that's something I had no idea what it even was until I entered in this process. And, like Judge Pickering, I agree it is a very frustrating process in which the nominee has very little input whatsoever.

GWEN IFILL:

Let's talk about that. I wonder what kind of say you did have, or were you wholly relegated to the sidelines during this process?

JUDGE JAMES WYNN:

I think that the favorable position in terms of the – from a presidential appointment, is for you to basically remain quiet and stay on the sidelines. But it became quite apparent to me after I met face to face with Sen. Helms sometimes after my nomination — and I must say he was quite gracious – and he informed me quite candidly.

He said "Judge, I believe you are qualified, but at this time frankly we just don't need anymore judges on that court." And he got that particular information from the Chief Judge Wilkerson who had gone before the U.S. Senate and made that same statement. And he stuck with it the whole time that he was in office.

GWEN IFILL:

Judge Pickering, looking back at it now, how much of the opposition to your nomination do you think was pure politics and how much of it was about issues?

JUDGE CHARLES PICKERING:

Oh, I think it was about the politics of abortion. Abortion was the common thread that drove the opposition on all of the Bush nominees. The hot button social issues of definition of marriage and reference to God in public institutions and public ceremonies and in the Pledge of Allegiance, these are all issues that to the groups that oppose me are very important and they don't want anyone that they perceive might not favor their position on those, so that's what started it.

And of course that made it political. When the Supreme Court started looking to whatever they determined in their independent judgment offends the evolving sense of the decency of a modern society that moved the battle over these hot button issues from the election of congressmen and senators to the confirmation of judges. That's what brought this on.

GWEN IFILL:

And Judge Wynn, I wonder if you sense the same thing with your nomination; whether it was about something more than just about Jesse Helms deciding to "blue slip" you?

JUDGE JAMES WYNN:

I was very fortunate during my entire process not one negative thing was said about my nomination. Of course nothing needed to be said because when you have an instance in which one senator can, based upon the Senate tradition, not turn in a blue slip, there's nothing he needs to say except just not do it and say we don't need any more.

My process was not involved so much in terms of the political issues. And frankly I would not give an opinion on those kinds of issues because I think it is inappropriate for a judge to do so. A judge should be independent. A judge should be open minded on issues, and it should not be an instance in which you can perform a litmus test on a candidate and determine how that candidate will rule one way or the other if they are set to judge a particular case.

GWEN IFILL:

Judge Wynn, as you watch all of this unfold from a distance, and Judge Pickering, I'm curious about what you think about this as well, as you watch all of this unfolded at a distance, do you think to yourself that this is just democracy that's messy, or is there something fundamentally flawed in the way that judges get nominated and get confirmed?

JUDGE JAMES WYNN:

I empathize with any judicial candidate who is involved in this process because there is a personal side to the story aside from the political bickering; aside from the politics that's involved, you have human beings here who have devoted their lifetime toward a judicial service. And so I empathize with that process.

On the other hand, I recognize that the Senate has long had traditions and customs. I accepted the fact that just Sen. Helms could, simply by not turning in the blue slip, not even allow me to have a hearing. I further accept the fact that the Senate has certain traditions and customs that have been in place for a long time and things like the filibuster have been around, I recall quite vividly was used almost effectively during the civil rights era. That's nothing new. And I think that customs and traditions gives us not only, maybe not from a constitutional process, but it gives us some notion of due process and fairness in terms of what we can expect in the rules of the games that we are about to enter into.

GWEN IFILL:

Judge Pickering?

JUDGE CHARLES PICKERING:

Gwen, that's one of the problems that we have is that Congress has passed no statute clearly defining how confirmation should be conducted. Neither has the Senate adopted any rules that clearly set out timetables or framework. The method of confirmation has developed over the years by historical precedent and by senatorial courtesy. And since 1960, every chairman of the Judiciary Committee has interpreted historical precedent and senatorial courtesy somewhat different, and that's what has allowed each side to think that the other one was escalating the fight.

So one of the solutions that I recommend, that I suggest, is for Congress to pass a Judicial Confirmation Improvements Act in which they set out precisely the procedure that would be followed. I would hope that they would guarantee to each nominee that they would receive a hearing within a certain period of time, be reported out of the committee with or without a favorable recommendation and an up or down vote on the Senate floor within a certain period of time and confirmation by majority vote –

GWEN IFILL:

And no filibusters –

JUDGE CHARLES PICKERING:

— Constitution —

GWEN IFILL:

And no filibusters allowed.

JUDGE CHARLES PICKERING:

No filibusters.

GWEN IFILL:

How about that, Judge Wynn? Go ahead, finish. Judge Pickering, go ahead and finish.

JUDGE CHARLES PICKERING:

This is totally unprecedented. The filibusters have never applied to judicial nominees until 2001. There was not one single judge that has ever been denied at confirmation because of a filibuster until the Bush nominees.

GWEN IFILL:

Judge Wynn?

JUDGE JAMES WYNN:

I certainly agree that in fairness to the nominees, if you're interested at all in terms of the persons in which you are bringing into this process, it would be fair to them to have the rules laid on the table. But again this is a process that is the United States Senate and the United States Senate, much like international law, relies largely in many instances upon customs and traditions.

And you don't change those traditions simply because you don't get your way in a particular instance. You do it over time. And I agree that it should be done. But I don't think it should be precipitated because you are not able to get your particular way on a particular instance.

GWEN IFILL:

So are you suggesting that this nuclear option idea, which is to change the rules or alter the rules in a way that would prevent filibustering of judicial nominees, that's not a good idea?

JUDGE JAMES WYNN:

Well, I suggest that if it is going to be done, that it ought to be done with the kind of courtesy that at least the United States Senate has become known for; that is, the fact that they respect the precedent, they respect the fact that it has been custom and tradition. If it's the chairman of the committee that's making the rules and that's the way it's been done, that's the way it's been done.

If you're going change it, I say change it not because of a particular precipitating incident but do it so, in a cool state of mind, where you are able to reflect and because this is a tradition that will last hopefully for quite a while. And as many have indicated, when the power, the balance of power changes, you don't want to have a similar situation then to come up. And I agree with Judge Pickering. This is a very important process, and we ought to at least employ the greatest amount of brain power and concern and at least put aside the politics of selecting judges who are independent and judges who have integrity.

GWEN IFILL:

Judge Pickering, in your view – I'm sorry — go ahead, finish.

JUDGE CHARLES PICKERING:

I agree totally with Judge Wynn that whatever solution comes up has got to be applied equally, fairly across the board to both parties regardless of whether the president is a Democrat or Republican, his nominees are going to be treated the same.

The process that I've indicated, though, at the end of the day, that would be fair to either party — and someone who was nominated would know that within a reasonable period of time, they would be either confirmed or rejected and they could go on with their life. But I agree with Judge Wynn that whatever we do needs careful consideration. If such a bill was introduced, there would be debates; there would be discussion.

And one of the things that's so unfortunate is that this discussion has gotten so shrill that people are talking past one another and not talking to one another, you know, in 1787, when our Constitution was adopted, there were a lot of theories of government. But our leaders, our founders, were able to come up and solve those. Statesmen emerged. They had to select among competing theories of government. And surely if they could resolve all of the controversies that existed then, someone in the Senate should be able to come forward with leadership that would bring us out of this quagmire that we're in at the present time.

GWEN IFILL:

Judge Wynn, is – filibustering, is it considered in your view, is it a constitutionally protected right, option, or is it just a generally accepted tradition and principle in the Senate?

JUDGE JAMES WYNN:

Well, I wouldn't call it a constitutionally protected right — not in the legal sense, but certainly I think it is within the province of the United States Senate to set the rules by which it will abide and those rules that it would apply equally, fairly and consistently. The word consistently is ever so important because when you are laying out rules, you want to make sure you don't apply them in one instance simply because the facts change.

You want things to be the same at least so that at least citizens who elect these senators to these offices are able to understand how the process works. And they can understand that it will not change simply because a particular scenario comes up that requires or at least gives them some cause to want to change the rules.

GWEN IFILL:

So, briefly to each of you do you believe in the end, Judge Pickering, that there should be an up or down vote guaranteed judicial nominees?

JUDGE CHARLES PICKERING:

Let me say I think if Judge Wynn and I could sit down, that even though we have some different perspectives on this matter, I think we could resolve this matter. And I think that's what we need, is people of common sense, reason who're going to approach this not with an emotional attachment as they have attacked these judges. The attack on these judges has been very bitter.

I think there should be an up or down because the Constitution contemplates majority vote, not super majority. It's very clear of that. And the filibuster was not a part of the founders. In fact the filibuster didn't come in until many years later and it has never been applied to defeat a judicial nominee before the Bush nominees, so yes, I think there should be an up or down vote.

GWEN IFILL:

How about that, Judge Wynn?

JUDGE JAMES WYNN:

Again, I think that's for the United States Senate to determine whether there should be an up or down vote. And yes, of course, every nominee feels they should get an up or down vote. I agree with that from that perspective.

But again, the United States Senate is the body that is to make that determination and I agree with Judge Pickering that if we judges were able to sit down and makes these rules, I believe we could come up with some rules that would be fair and that could be applied equally across the board.

GWEN IFILL:

Well, if you ever have that meeting, invite us along, Judge James Wynn, and Judge Charles Pickering, thank you both very much.

JUDGE CHARLES PICKERING:

Good to visit with you, Gwen.