Pickering's nomination was defeated 10-9 by the Senate judiciary committee last year, making his renomination something of a surprise. Why would the Bush White House the Republicans still stinging from charges of racism after Trent Lott's comments and subsequent resignation as majority leader risk so much political capital on what could be a damaging nomination? One word: Respect.
"There is a sense that the Republicans need to stand up for their nominees, or else they may be considered weak," says John McGinnis, professor of constitutional law at Northwestern University School of Law and former staff member for George H. Bush. Then there's also the appeal of revenge: "The administration may also be motivated by the fact that Pickering wasn't treated very well by the Democrats during his first go-round," says McGinnis. "This is their way of insisting on equitable treatment for their nominees, now and in the future." Rekindling the Pickering nomination also allows the Republicans to "bring the race issue back into a comfortable space for them," says Gregory Magarian, an associate constitutional law professor at Villanova University School of Law. "After the Trent Lott disaster, they want to get control of the race issue before it's defined for them by outside forces," i.e. the Democrats.
There is also the issue of Pickering's standing as a judge, says McGinnis. The White House may feel they owe Pickering that much: a chance to be evaluated by a more equitable audience. A Republican-controlled Senate is more likely to examine his past in the context of legal philosophy and practice rather than under the microscope of a single ruling. "The question this time, if they get past the filibuster, will be whether Pickering is a sound judge. And if you look at his record, he is," says McGinnis. "He hasn't been reversed very often." Pickering has his vehement, albeit occasionally defensive sounding supporters in the Senate, including newly minted Majority Leader Bill Frist, who told Fox News Sunday, "Judge Pickering is a well-qualified judge. The American Bar Association used those words, 'is well qualified.'"
So, given this second chance, can Pickering win? That's a question of simple but unpredictable mathematics, says Magarian. "With the Republicans in control of the judiciary committee, it comes down to whether there are GOP members who can be swayed to the Democrats' viewpoint." And while Pennsylvania's Arlen Specter has been known to stray from the GOP line on issues of civil rights and abortion, given the increasingly polarized atmosphere in the Senate, and the highly charged nature of this nomination, such a visible defection seems unlikely.
A win for Pickering in judiciary means a floor debate, and that's where the Republicans could take a few hits. The reintroduction of Pickering's name prompted huffy Senate Democrats, led by minority leader Tom Daschle, to pledge a filibuster to defeat the nomination, as well as "a rich debate," according to Daschle, on the topic of race and the Republican Party.
In the meantime, tempers are flaring on Capitol Hill. If the White House intended this nomination to its nose at the Democratic minority, it has succeeded. Sens. Charles Schumer of New York and Richard Durbin of Illinois have angrily pledged to fight the Pickering nomination to the end.
And whether Pickering is confirmed or not, the fact that he's back in the running is bound to provide rich fodder for both Democrats and Republicans gearing up for the 2004 campaign trail. Democrats can point to the GOP's outdated philosophies on civil rights, while the Republicans can point to Dems' obstructionist politics that have kept so many benches empty two years into Bush's term.