LEGAL SCHOLARS, political commentators, and American elected officials have never reached a consensus on the precise meaning of the Constitution's requirement that presidents appoint cabinet officers and federal judges "by and with the Advice and Consent of the Senate." The very ambiguity of the phrase is a testament to the Framers' genius, for these appointments are essentially political matters to be fought over in the messy context of elective politics. For that reason the media necessarily play a role in the vetting of presidential appointees. Under the prevailing ethics of the press--that is to say, the presumption that the press is a nonpartisan participant in the political process--the contribution of the media might be expected to boost nominees' confirmation chances as often as it undermines them. That this has not been the case in recent years may be owing to adversarial attitudes prevalent since Vietnam and Watergate. Today's journalists are more comfortable poking holes in public figures' reputations than burnishing them. But conservatives, noting that three of the last four presidents have been Republicans, suspect that another factor is at play in the contentious appointment process: a pervasive liberal bias in the elite news organizations. The most recent evidence they would cite is George W. Bush's ill-fated attempt to elevate U.S. District Judge Charles W. Pickering Sr. to the appellate bench. The nomination was tabled last week in the Senate Judiciary Committee after Pickering was voted down, 10-9, on a party-line vote. Pickering himself was circumspect about his political views and judicial philosophy during his confirmation hearings, as all nominees must be in these partisan times. But his conservative outlook, both from the bench and in his private life, was not really in dispute. Nor is there any doubt that this judge possesses the qualifications and judicial temperament that once would have made his elevation a foregone conclusion. Pickering attended law school at the University of Mississippi, graduating with the highest grades in his class, practiced law in Laurel, Miss., for 29 years, where he was both a prosecutor and a local judge, served two terms in the Mississippi state senate, was chairman of the state's Republican party, is a member of the board of directors of the Federal Judges Association, and is a past president of the Mississippi Baptist Convention. His name was put in nomination by both of his home state's senators, Trent Lott and Thad Cochran, and he has been on the federal bench for 12 years, a position that required confirmation by the Senate. He had the recommendation of the American Bar Association, was never associated with a whisper of scandal, and had broken with his state's segregationist past by the mid-1960s, which is to say earlier than some, later than others. But these are not normal times. Despite Bush's pledge to restore a spirit of cooperation and comity in Washington, the rancor of the 2000 election lingers. So does ill will stemming from the nomination wars of the past 20 years. Those battles have featured not just foot-dragging and intransigence by opposition party senators--Republican and Democrat--but also routine character assassination. Judge Robert Bork's skepticism that Griswold v. Connecticut confers a sweeping right of privacy is translated by an overheated propaganda machine into "contempt for women." Judge Ronnie White's determination to make extra sure that judges in capital murder cases give every appearance of being neutral makes him "pro-criminal." In the Pickering nomination fight, a third factor was present as well: Senate Democrats and liberal interest groups believe that Bush's lack of a plurality, let alone a majority, of the popular vote in 2000--and the near-even split in Congress--gives them the right to adopt a more aggressive interpretation of advice and consent. In this view, the narrowness of Bush's mandate ought to translate into judicial appointees more moderate than if he'd won a landslide. Alternatively, if they can't have moderate appointees, the liberals would like a bit of parity: one liberal judicial appointee for every conservative (or perhaps for every two or three conservatives). A demand for parity would have been a politically marketable stand, but the Democrats and their liberal allies refrained from adopting it. Instead, they resorted to the rougher tactics that have characterized appointment fights for the past two decades. Charles Pickering, his critics suggested, is a racist. Perhaps the interest groups and senators should be faulted for such methods. But they are advocates, after all, partisan and ideologically minded by nature. It is, rather, the influential media organizations, which claim to be unbiased, that should be expected to refrain from such zealous excesses. Instead, in the Pickering case they tended to repeat or even amplify them. Here, for example, is the opening sentence of a Detroit Free Press editorial: "With his nomination of [Pickering], President George W. Bush is substantiating fears that he would attempt to turn the federal judiciary into a right-wing monster." The editorial that followed, like those in many newspapers, accepted uncritically the claims made by liberal interest groups, often using language identical to that of the groups' press releases. "His career also is characterized," wrote the Free Press, "by a relentless hostility toward abortion rights, as well as the rights of habeas corpus and due process." The writer cited no examples. As Pickering was being thus pilloried on the nation's editorial pages, the New York Times took a more balanced approach--in its news columns. In a February 15 story filed from Mississippi (and similar in tone to one that had run in Legal Times on February 4), Times reporter David Firestone wrote that Mississippi Democrats, white and black, consider Pickering a man of legal talent, high character, and racial sensitivity. This article might have changed some minds in Washington--except that the Times's own editorial page undercut the story. In an influential lead editorial on February 24, the paper--after conceding that Pickering enjoys "warm relations" with blacks in his hometown and has "no animus toward blacks"--listed the familiar litany of accusations: that the nominee is no fan of the Voting Rights Act, that he is "troubled by well-settled legal principles like 'one-person, one-vote,'" that his reluctance to award attorneys' fees in certain cases reveals a "hostility" to civil rights lawsuits, and so on. The Times editorial then took up the issue of abortion, calling Pickering "also well outside the mainstream on issues of reproductive choice." It then cited the evidence: "He was a driving force behind the Republicans' decision to put a plank in their 1976 party platform calling for an anti-abortion amendment to the Constitution." This is an interesting line of argumentation: A person "well outside the mainstream" on race and abortion is, by inference, an extremist. But such a judgment is not a purely subjective one. There are data on such questions. Is Judge Pickering truly outside the mainstream of American political thought on the most important public policy and social issues of the day? For that matter, should the same question be posed about the New York Times? Judge Pickering's stands on two subjects in particular--abortion and affirmative action--were used to defeat his nomination. These subjects are key to the current national discussion of jurisprudence and civil rights. There are, as it happens, plentiful data about where the American people stand on these issues, and thus where the "mainstream" runs. Let us see. ABORTION New York Times: The paper consistently takes the position that Roe v. Wade was correctly decided, and that attempts to scale it back are detrimental to women's rights. The Times opposes requiring parental or spousal notification, has spoken critically of measures such as 24-hour waiting periods, and lauded President Clinton for vetoing a ban on late-term procedures known as "partial-birth" abortions. Judge Pickering: Although he was careful in his confirmation hearings to say he would obey the High Court's precedents, Pickering is a committed pro-lifer whose record on this issue before he became a judge included opposition to abortion even in cases of rape or incest. The American people: If the judge and the newspaper are at opposite ends of the spectrum, which is more mainstream? Well, the right-to-life plank the Times finds so damning has been a fixture of GOP convention platforms since 1980, embraced by every Republican presidential nominee. In that time--even if you count 2000 as a draw--the Republicans won three presidential elections, lost two, and tied one. Apparently their party was not so far "outside the mainstream" on abortion as to sink its chances with the voters. But there is another way to examine this issue: by looking at the public opinion surveys. In January, a Fox News poll asked the question: "On the issue of abortion, would you say you are more pro-life or more pro-choice?" The results: PRO-CHOICE 47 percent PRO-LIFE 41 percent BOTH/MIXED 5 percent NOT SURE 7 percent A Gallup poll taken last year showed an even split--46 percent for both positions. And in a poll last month, Gallup posed the question this way: "Do you think abortions should be legal under any circumstances, legal only under certain circumstances, or illegal in all circumstances?" The results: ALWAYS LEGAL 26 percent LEGAL ONLY UNDER CERTAIN CONDITIONS 54 percent ALWAYS ILLEGAL 18 percent ABC, getting to the same issue last summer, asked: "Do you think abortion should be legal in all cases, legal in most cases, illegal in most cases, or illegal in all cases?" LEGAL IN ALL CASES 22 percent LEGAL IN MOST CASES 31 percent ILLEGAL IN MOST CASES 23 percent ILLEGAL IN ALL CASES 20 percent The same poll showed that the reason a woman wants an abortion makes a difference. Asked whether abortion should be legal in the case of pregnancy caused by rape or incest, respondents said: LEGAL 83 percent ILLEGAL 16 percent But when respondents were asked whether abortions should be permitted "when the woman is not married and does not want the baby?" they said: LEGAL 44 percent ILLEGAL 55 percent Finally, the Los Angeles Times poll in early 2001 asked: "One of George W. Bush's first acts as president was to issue an executive order to block federal government grants to international family planning groups that pay for abortions or provide abortion counseling in third world countries. Do you approve or disapprove of this executive order?" The results: APPROVE 45 percent DISAPPROVE 46 percent The American public, then, seems as split over abortion as it was over the 2000 presidential election. The largest group of Americans stand with neither the newspaper nor the judge: A clear plurality do not want Roe repealed, but favor attempts by states to curtail abortions with various restrictions. The polls offer no grounds for calling Judge Pickering out of touch with the American people on abortion, though he is doubtless out of step with liberal readers of the New York Times. AFFIRMATIVE ACTION New York Times: Echoing the claims of Pickering's critics, the newspaper accused the judge of being insufficiently supportive of civil rights. The Times didn't use the phrase "affirmative action" in its editorial, but many liberal groups did so in their press releases and testimony opposing Pickering's nomination. These critics inferred an opposition to affirmative action on the judge's part from his record in a couple of redistricting cases under the Voting Rights Act and in several lawsuits that alleged racial discrimination in hiring or business relations. The New York Times, like almost every big city daily, champions affirmative action editorially. Six years ago, the Times fiercely criticized the Supreme Court for its decisions in a congressional redistricting case and of minority "set-aside" programs in government procurement. "The repudiation of affirmative action, with its premise that African-Americans no longer need the law's protection, was a historic insult to blacks reminiscent of the 1896 Plessy v. Ferguson decision," the paper wrote. More recently, the Times asserted that requiring colleges and universities to use racially neutral admissions policies "would be a monumental error both as a matter of law and as social policy." Judge Pickering: Pickering was excoriated by the civil rights lobby not for his handling of any cases dealing directly with racial preferences, but for two decisions involving minority employment. In the first, two brothers who owned a retail grocery store were cut off by a supplier. The brothers, who are black, sued, alleging a civil rights violation. In the second case, a Hattiesburg, Miss., fireman who is African American alleged discrimination after he was terminated. In each case, Pickering granted the defendant's motion for summary judgment; and in each case he expressed the view that not every reverse in life is due to discrimination. "The fact that a black employee is terminated does not automatically indicate discrimination," the judge said bluntly. To the civil rights community, this demonstrated "hostility" to claims of racial disparity in the workplace. While his critics never mention the evidence in the two cases--the brothers were late in their payments and under criminal indictment when their credit was revoked; the fireman was chronically tardy for work--an underlying skepticism about the wisdom of selecting certain groups as protected classes of litigants does come through in Pickering's language from the bench. The American people: Affirmative action has been defined in a lot of ways, and it is widespread in practice, however confusing the Supreme Court's pronouncements. The phrase itself has intrinsic appeal. When asked about it without amplification, Americans split about evenly. But when pollsters start defining it, support declines precipitously. The underlying principle--that some level of racial preference must be granted in order to remedy historical inequities--is not popular with the American people. Thus, when Gallup asks respondents whether we should increase, keep the same, or decrease affirmative action programs in this country, 27 percent say increase, 30 percent say decrease, and 34 percent say keep them as they are. But when pollsters delve deeper, the support ebbs. "Do you support or oppose government and private programs that give women, blacks, and other minorities preference over white men getting into college, getting a job, or getting a promotion?" That question was asked in an ABC News poll last November. The results were: SUPPORT 28 percent OPPOSE 69 percent Last year, the Washington Post, in conjunction with Harvard University and the Kaiser Foundation, ran a poll exploring racial preferences. It found solid support for outreach and recruitment programs designed to attract minorities to college or employment opportunities, but very little for granting race-based preferences once the pool of applicants has been established. One question was phrased this way: "In order to give minorities more opportunity, do you believe race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college, or that hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race or ethnicity?" The answer was unambiguous: RACE SHOULD BE A FACTOR 5 percent RACE SHOULD NOT BE A FACTOR 92 percent The lopsided pattern was not very different for black respondents: RACE SHOULD BE A FACTOR 12 percent RACE SHOULD NOT BE A FACTOR 86 percent On the issue of districting--where the Times and the liberal interest groups said Pickering was at his most reactionary--the public is as conservative as the judge, maybe more so. Asked in the Post-Harvard-Kaiser poll whether race should play a role in the drawing of congressional districts, the American people, by 86 percent to 11 percent, said no way. Thus, by the lights of the New York Times, not only is Charles Pickering outside the "mainstream" on important legal questions pertaining to race--so are the American people. All of which brings to mind the aside by Mandy Patinkin in "The Princess Bride." "You keep using that word," he says slyly. "I do not think it means what you think it means." Carl M. Cannon covers the White House for National Journal.
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