For Immediate Release
March 5, 2003
Press Briefing Excerpt by Ari Fleischer 03/14/02
Q Ari, on Pickering, you said earlier -- two questions on Pickering.
You said that the President and his staff are making "a call or two."
It doesn't sound like there's an intensive, you know, calling or
reaching out to senators to try and win Pickering's nomination.
MR. FLEISCHER: Well, you have to keep in mind in a case like this,
where unless the Senate changes what their intentions are, where it's
the will of the Senate leadership to bottle this up and allow the vote
to proceed only in committee because they lack the votes on the floor
to stop the nomination from going through -- that there just aren't
that many swingable votes on the committee. There's no point in calling
people whose minds are made up; they don't change their mind. It can be
a pleasant conversation, but nothing happens.
So there are just a small enough universe of people that it's worth
making a phone call to, to see if they want to think through some of
the arguments that the President made yesterday, they may be receptive
to those arguments. So a small number of calls have been made, and
we'll see exactly what the committee does.
But the President would regret it very much if the committee killed
this man's nomination after the full Senate voted unanimously just 12
years ago to support him for the district court, especially when there
are enough votes to pass him on the floor. And that's one of the most
troublesome aspects about this process. It's a hint that the judicial
process may be marred by partisanship and ideology, when it should be
marked by success and bipartisanship, especially when the votes are
there to pass people on the floor.
Q Let me follow up, because some Republicans are already talking
about consequences -- even some senior administration officials are
saying consequences for the Democrats if this nomination is killed.
What consequences are we talking about? And would the administration
support what some Republicans are talking about, delaying the work of
the Senate to force action on other judicial nominees?
MR. FLEISCHER: Make no mistake, the greatest consequence of this
Senate committee killing this nomination, if they do so, will be on
justice in America, on delays in the courts, on the number of vacancies
in the courts. That's the greatest consequence of all.
America has judicial emergencies. America has courtrooms that lack
judges, and that means justice is delayed, and justice delayed can be
justice denied. And that's the greatest harm done if the Senate
proceeds to kill this nomination and send a signal to this White House
that the circuit court nominations are not going to go through,
especially when the gold standard that the Democrats like to observe,
the American Bar Association's ratings, call him well-qualified.
Q Consequences for Democrats, though? Will there be consequences
for Democrats beyond the consequences --
MR. FLEISCHER: That's the consequence the President sees.
Q What does this episode suggest to you about the future of getting
your nomination approved, and in general about efforts for the
President to select judges that somehow reflect his own views?
MR. FLEISCHER: I think that what this process shows is that there
is a bipartisan majority to confirm the President's choices on the
floor of the Senate, but there is a determination made by the Senate
leadership to prevent bipartisanship from happening. And that's a very
unfortunate process, problem, in the United States Senate. It doesn't
serve the President well, clearly, because I think most people agree
Presidents are entitled to have their nominees put in place. But, more
importantly, it doesn't serve the nation, because there's a judicial
crisis, there are vacancies in the court. And the Senate has obligation
to fulfill, under its constitutional requirements, putting judges in
place, as the President has requested.
And I think it would be a different matter if these nominations the
President was making lacked bipartisan support on the floor of the
Senate. There is a bipartisan majority to put his nominations through,
and that's why the Senate is going through extraordinary hoops to keep
it bottled up in committee to stop the bipartisan will.
Q If I could follow on the question about consequences, there are
people on Capitol Hill, Republicans who are talking about there will be
some consequences from the way this has been handled by the Democrats.
You make it sound as if the White House is simply at the mercy of
Democrats in the Judiciary Committee; even if they're acting wrongly in
your view, they have the power to do so and there's not much you can do
MR. FLEISCHER: Well, the President is not a voting member of the
United States Senate. The President can make his case to the American
people, and the American people ultimately will be the judges. But the
President hopes that, number one, that Judge Pickering will be approved
today in committee. Let's see what the vote is. If he is defeated in
committee, it's again a reflection of the fact that the Senate
leadership would resort to killing qualified nominees in committee
because the Senate leadership knows that it does not have the votes to
stop them on the floor.
And that's a very unfortunate result. And I think it's also what
makes people sour on Washington, when they know that there is
bipartisanship available, but there are leaders who choose not to take
Q May I follow on Pickering also? Could this be a recess
appointment someplace down the line? Is it possible in this type of
position? Or would the President consider another position --
MR. FLEISCHER: Connie, I'm just not going to speculate. They
haven't even voted yet.
Q Did the President meet with anybody on this, bring anybody from
the Hill to the White House to lobby them on Pickering?
MR. FLEISCHER: You know, I'm just not going to describe how the
President goes about some of the contacts he has. He has talked to
people about it, and just out of respect for the privacy of the
President's conversations, I'm not going to get into that.
Q But usually when he's serious about something like this, he'll
publicly bring somebody down, we know about it. A lot of issues he does
that on, where he brings somebody in the Oval Office and --
MR. FLEISCHER: Sometimes also when he's serious about things, you
don't know about it. But I think you saw his seriousness yesterday.
Q Ari, on the same subject, Ari --
MR. FLEISCHER: Then we go all the way to the back, and then we come
to you, Les.
Q On the same subject, I think this has been brought up here and by
you also, is the fact that when the shoe was on the other foot, the
Republicans have done the same thing to the Democrats --
MR. FLEISCHER: There's no question of that.
Q So maybe the law should be changed in the Senate to try to put a
stop to this kind of thing. It happens all the time, Ari.
MR. FLEISCHER: It does happen all the time. And I can tell you that
was not the way Governor Bush did his business with the legislature in
Texas. And it's not the way that the American people want business to
The American people want to be able to look at Washington and say
that even though they have differences of approach and differences of
opinion, at the end of the day the Democrats and Republicans are able
to get together and get things done for the country.
And that's what's so distressing about the process that the Senate
leadership has chosen to take in this matter with Judge Pickering. They
have chosen a process that is a partisan one, that defies
bipartisanship -- because they know, the Senate leadership does, that
there are enough votes to pass Judge Pickering on the floor of the
Senate. Not by a lot, but in our democracy, a majority, and it would be
bipartisan. And that's what makes it even more disappointing to see the
Senate leadership decide to try to stop a good man's nomination, a
qualified man's nomination, a nominee who received 100 percent of the
votes of the Senate before.
Something has changed, and what's changed is the Senate is pursuing
an unfortunate partisan direction, when you have a judicial candidate
who has bipartisan support -- especially bipartisan support from within
his own state.
Q Going back to Pickering for a moment. The Senate has had a committee
system for a long time. Are you saying that the Judiciary Committee
should have no role in the vetting or passing on of judicial
MR. FLEISCHER: Of course not. Of course not.
Q -- and that judicial nominations should go right to the floor,
with no vote in the Judiciary Committee?
MR. FLEISCHER: I didn't indicate anything even resembling that.
What I've indicated is that in the Judiciary Committee previously, they
have reported out unfavorably recommendations so they could proceed
with a vote on the floor. That's not uncommon; it's been done before.
But if you want consistency in the United States Senate, you can take a
look at two very big issues that are pending before the Senate right
now. And one is the nomination of Judge Pickering, and the other is
There's only one consistent action taken by the Senate leadership,
and that is to try to stop President Bush from getting his policies in
place. When it comes to energy security, the Senate leadership made a
decision not to even let the Energy Committee have any say in the
energy legislation. They immediately said the only entity that will
discuss this is the floor of the Senate.
On Judiciary, they said that only the committee will have a vote,
not the floor. There's no consistent approach when it comes to how to
ensure a fair, bipartisan debate. The only consistent approach seems to
be determined to inject partisanship into the will of the Senate, when
there is bipartisan support for the President's nomination.
Q If a negative vote in committee doesn't kill a nomination, then
what's the point of the vote?
MR. FLEISCHER: That's a procedure in the Senate and the House
that's been -- in the Senate that has been allowed before, to report
unfavorably, so that all 100 members of the Senate can have their say.
Q Going back to Pickering, some conservatives feel the administration
got geared up too late for this lobbying effort, that this was really a
winnable nomination but the White House misread how truculent the
Democrats were going to be. Is it fair to say he didn't see the
Democrats were going to play hardball on this, and so he got started
MR. FLEISCHER: No, I don't share that analysis. In fact, the
President has heard very good things as a result of what he said
yesterday. The message we received back from the Hill, that was very
But the fact of the matter is that the Democrats control the
committee. And it is entirely a matter of Democrat decision-making
about whether or not they want to stop a bipartisan vote from taking
place on the floor. Perhaps it will be one Democrat who will show a
little independence and some flexibility. We'll see when the vote takes
Q So you don't feel it was winnable if you'd done more earlier?
MR. FLEISCHER: I think the President approached it in a sound way.