In the days before the Pickering hearing, the Justice Department and committee Democrats were haggling over the release of the internal memo which Edwards used against Pickering. The documents were the Justice Department's property, and the Bush administration has been famously
tight-fisted in its approach to making internal information like that public. Faced with a request for documents from the Judiciary Committee, the Department dragged its feet, not deciding to release them until the morning of the hearing. Then they had to be redacted, which took place in the hours before Pickering was scheduled to testify at 2:00 p.m. The upshot of all the indecision was that the department did not give the memos to the Senate until 1:45, just 15 minutes before the hearing began.

Edwards's questioning would have been an impressive performance if he had days to prepare. It would have been extraordinarily impressive had he gotten the memo at 1:45 and worked on his questioning until he actually confronted Pickering a little before 5:00 p.m. But Edwards did not even have that long to prepare in what was quite a busy day. He presided over the Senate from roughly 2:00 p.m. until 3:00 p.m. He was back on the floor of the Senate for a vote about 3:15 p.m., and also spent time there chatting with fellow senators. He attended a closed Senate Intelligence Committee business meeting that lasted until about 4:00 p.m. Finally, at some point after that, he left for the Pickering hearing and began questioning the judge about 4:55 p.m. (Pickering had not seen the memos because he had been in the witness chair the whole time.)

The sheer polish of Edwards's performance led some skeptics to wonder whether he had somehow gotten an early look at the Justice Department documents, perhaps from some opponent of Pickering who happened to have access to them. That would have been highly improper, given the department's strict control over records of its internal deliberations. But Edwards says he did not get the memo until late in the day of the hearing, well after it was released, forcing him to go through the material quickly. "Very quickly," he said a few weeks after the Pickering hearing. "Very quickly. I sort of looked at them as we were going into the hearing. I had seen before that, in some of the other cases, things that concerned me, and then we got those documents that laid out in more detail some of the things that he had actually done in this particular case."

Perhaps that is what happened. There is no evidence ? other than the circumstances of timing and the fact that an "obsessive preparer" like Edwards would attempt such a detailed interrogation with virtually no preparation ? to conclude that anything improper happened. But Edwards's performance, whether spontaneous or not, suggests that Republicans might do well to look closely into his record, both as a trial lawyer and as a senator. A man willing to do what he did to Pickering might not be quite the good guy he says he is.

[Edwards:] "So that was an ex parte communication, was it not?"

[Pickering:] "It was."

"In violation of the Code of Judicial Conduct."

"I did not consider it to be in violation of the Code of Judicial Conduct."

"Well, could you explain that to me?" Edwards pressed. "The Code says you should 'neither initiate nor consider ex parte communications in a pending or impending proceeding.'"

It was something of a Perry Mason moment, at least as far as normally sedate confirmation hearings are concerned. But there was a problem. Edwards, perhaps following his trial lawyer's instinct as he moved in for the kill, misstated the Code he had read to Pickering just moments before. The Code says this: "A judge should...neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding."