This is a partial transcript from "Your World with Neil Cavuto," May 10, 2005, that was edited for clarity.
NEIL CAVUTO, HOST: I want you to meet a guy whose own nomination to the federal bench was kept in limbo for more than three years.
Although Charles Pickering did end up serving on the 5th Circuit Court of Appeals back in 2004, after the president went ahead and appointed him when Congress was recessed, his judgeship did not last long.
Pickering is now a senior counsel at a top law firm. But he has some ideas how other prospective judicial candidates can avoid his same fate.
JUDGE CHARLES PICKERING: I hope that the Senate will address the situation, so that this won't happen to other nominees.
There are four solutions that I discussed yesterday in an editorial in the Wall Street Journal. One, of course, was the ballot box; and two was implementing the constitutional solution, which sometimes has incorrectly been referred to as the nuclear option, but it's just simply following the Constitution.
But ultimately, I would hope that Congress would pass a Judicial Improvements Act that would give every nominee a hearing within a certain period of time and then an up-or-down vote before the full Senate, and then a majority vote would confirm.
But if we are going to get the controversy surrounding judges — finally address that to where it quits being so confrontational and controversial, then judges are going to have to quit making independent determinations as to evolving standards of decency and changing the Constitution. And it should be left to the people.
CAVUTO: Exactly, Judge. Then, what is wrong with having an up-or-down vote? You might try to finesse it by saying within a certain period of time, but nowhere in the Constitution do I see the word filibuster.
PICKERING: No. It's not. The Constitution says "advice and consent." And in the article where that is set forth for confirmation of judges, it means majority vote. It said treaties would require a two-thirds vote, but judges, majority vote.
CAVUTO: So the bottom line here seems to be, we can be polite about it all we want, but the Senate seems to zealously like this filibuster thing.
Republicans like it when they're in the minority; Democrats like it when they're in the minority. They feel that something is amiss when we start chipping away at that. What do you say?
PICKERING: Well, that's true. The senators are reluctant to give up any prerogatives.
But the truth of the matter is that judges were never filibustered and kept from being confirmed, prior to the last four years and the Bush nominees.
So if you go back to the constitutional solution and if you confirm judges by majority vote, that's not changing Senate precedent. It's reaffirming the precedent that we had for more than 200 years.
CAVUTO: What do you think of this middle ground that Senator Reid and others have come up with, where a couple of judges might be approved as sort of a bone to conservatives, but conservatives would have to relent on their idea of dropping or ramming through this filibuster thing?
PICKERING: Well, if they don't address the issue now with the appellate judges that are pending before the Senate, they're going to still face this same issue when the first nominee to the Supreme Court comes up.
I think it's far better to go ahead and address the issue now, get it behind them, and the issue will be resolved before you get personalities involved.
That's like saying, "Well, we follow the Constitution every time except 10 times. Is it OK for us to disregard the Constitution 10 times?" Of course not.
CAVUTO: You were dragged through the mud for three years, waiting for confirmation. The president appointed you in recess. You later stepped down, went into private practice.
But are you bitter?
PICKERING: No. Not at all.
I did not enjoy what I went through. Had I known in advance what was going to happen, I doubt if I would have gone far with it. But once the fight started, I could not step down or withdraw. To do so would have given some credibility to the charges, and it would have made it more difficult for the next person who comes up and is nominated.
I felt, frequently, that they were trying to force me to withdraw, that they were trying to put so much pressure that I would just get out of the fight.
Well, there are some things that are worth fighting for. And the principles involved are worth fighting for, even more so than the job itself.
CAVUTO: All right. Charles Pickering.
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