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.