The Magazine

A Nomination Worth Fighting For

Mar 4, 2002, Vol. 7, No. 24 • By TERRY EASTLAND, FOR THE EDITORS
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AMONG the announcements White House press secretary Ari Fleischer made in his daily briefing on February 15 was this: "The president believes in and will fight for the nomination of [Charles] Pickering." Pickering certainly could use the president's help. His nomination--the first judicial confirmation battle of the Bush presidency--is in trouble and may fail even with Bush's engagement. But Pickering's confirmation chances will improve if the president stands up for him. With the Senate returning this week and a Judiciary Committee vote looming, "will fight" must become "is fighting."

In case you're new to the story, Charles Pickering is a federal trial judge, a 1990 appointee of George Bush. Last year George W. Bush designated Pickering for elevation to the U.S. Court of Appeals for the Fifth Circuit. Democrats on the Senate Judiciary Committee, who hold a 10-to-9 edge, have been digging in their heels against Pickering. If Pickering were to be voted out of committee, he might be confirmed, since two Democrats--Zell Miller of Georgia and Fritz Hollings of South Carolina--have indicated their support. Thus the committee vote is crucial.

In deciding to target Pickering first among Bush nominees, committee Democrats would seem to have made a peculiar choice. After all, a Democrat-controlled Senate unanimously confirmed Pickering to his district judgeship in 1990. A substantial majority of the American Bar Association's Standing Committee on the Judiciary has now rated him "well qualified," and the ABA, not a conservative body, is an organization Senate Democrats, if not this Republican White House, routinely salute. Consider, too, that Pickering is 64--old as appellate court nominees go. He's unlikely to serve long enough to make a substantial jurisprudential difference, even assuming he's the sort of lawyer apt to make that kind of difference, which administration officials in whispered asides say he's not. Instead, they say he's "Lott's guy."

Lott, as in Trent Lott, a close friend of Pickering. From the first days of the Bush presidency, Lott pushed Bush to nominate Pickering. Bush settled on Pickering the same week in May that James Jeffords left the GOP. Senate Democrats didn't exactly admire Lott when he was majority leader. Now in the majority themselves, they can exact some revenge by opposing Pickering. No other Bush nominee so qualifies as an anti-Lott target. This is petty, yes, but this is the Senate.

Pickering also affords Democrats a chance to raise a topic on which Republicans are easily put on the defensive--race. Democrats have forced Pickering to voice regrets for some things he said and did decades ago that lent support to or failed to oppose the status quo of segregation. The nomination thus has allowed Democrats to strut their presumed moral superiority--notwithstanding the fact that Democrat Robert Byrd of West Virginia was once a member of the Ku Klux Klan, while Pickering prosecuted it and testified against one of its imperial wizards.

With Pickering, the Democrats are pursuing what might be called a strategy of prevention. Because the Supreme Court takes so few cases, the nation's 13 appellate courts effectively function as mini-supreme courts. Bush wants to appoint judicial conservatives. His appointees could shift the balance of power in a conservative direction on more of these courts--unless the Senate says no. The necessity for the Democrats is to challenge nominees they see as beatable at low political cost, which they think Pickering is. Absent the president's engagement in the battle, they are right.

Democrats believe the Fifth Circuit is too conservative already, and that Pickering would add to the imbalance. By defeating Pickering--the first of four judges Bush has nominated to the Fifth Circuit, a court of 17 members when at full strength--Democrats aim to tell Bush that he must cease and desist from nominating judicial conservatives to appellate courts and instead pick "mainstream" judges. And, for that matter, "mainstream" Supreme Court justices, should vacancies on the high court occur.