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.

As for Pickering himself, the effort to portray him as "insensitive" on race (racist, if you know how to read these things) is unfair. Democrats have seized on this and that--a law review article on Mississippi's anti-miscegenation statute that he wrote in 1959 as a law student; trivial contact in the early 1970s with the pro-segregationist Mississippi state Sovereignty Commission; and support as a state senator in the 1970s for an open primary bill that the Justice Department blocked on account of its negative impact on black voters. None of this amounts to much when the man is seen in full, for Pickering also stood against the Klan in Mississippi when that took courage and, over the past two decades, has led racial reconciliation efforts in the state. Blacks in Pickering's hometown of Laurel support him even as they wonder what the fuss in Washington is all about. Larry Thomas, owner of a pharmacy in Laurel, told the New York Times: "Over the years I've seen him work with black leaders and really try to make an effort to understand and help the community. That's a progressiveness that we need to see more of in this state." A black councilman offered this: "So many people are angry about the past. But if the judge has moved beyond his past, I think we should all try to do the same."

Notwithstanding that the ABA in its review of Pickering found nothing to object to in terms of ethics, committee Democrats have. Last fall, Pickering asked lawyers who had appeared in his court to write letters in support of his nomination. Russell Feingold worries whether this does not raise an "appearance" problem, and a legal ethics expert, consulted by Legal Times, has said the solicitation might amount to "unintentional coercion." Pickering's actions strike us as unwise, but not unethical. Another "ethics issue": During the sentencing phase of a cross-burning case in 1995, Pickering, frustrated with the Justice Department's handling of the case, had a phone conversation with the then head of the Civil Division, a friend from Mississippi, who had no line authority over the prosecutors involved and in any case took no action. John Edwards has seized on this phone call to charge Pickering with an "ex parte" communication in violation of the Code of Judicial Conduct. But on close inspection, the allegation falls apart.

As a judge, Pickering has at times gone off point, as it were, to offer his views about the law at hand or some public controversy. In a 1993 voting rights case, for example, he criticized the Supreme Court's "one man, one vote" principle. In another, he elaborated his views on federal pension law. Judges of all jurisprudential stripes have been known so to digress, and it's not a practice we'd hold up as ideal. Still, Pickering's record on the bench, taken whole, is not that of a judge who twists the law to reach decisions enforcing his own personal or political views.

Pickering has repeatedly tried to assure committee Democrats that as an appeals court judge he would read the law as it is, not rewrite it to suit his views. But Democrats see that Pickering is a conservative and that he is a judge, and they seem determined to believe that he would be a results-oriented judge. Abortion, as you might expect, is a huge Democratic concern. Pickering, who has never had to rule on an abortion case, disagrees with the Supreme Court's abortion jurisprudence. Long before becoming a judge, he supported a constitutional amendment that would have overturned Roe v. Wade. Queried on all of this, Pickering has insisted that as an appellate judge he would of course adhere to what the Supreme Court has said on the issue.

There's really nothing more that Pickering can say in his own behalf on that or anything else. Which of course is his problem, just as it was Robert Bork's problem 15 years ago. There's little a judicial nominee can do in his own behalf when the Judiciary Committee is preparing to vote no. Needed in these circumstances is an energetic executive, a president willing to argue publicly for his nominee--in the present case, to challenge the inaccurate and unfair portrayals of Pickering and to expose the Democratic effort for what it is, an attempt to force the president to choose judges more to the liking of Al Gore. Let there be no mistake: Pickering is Bush's nominee, not Trent Lott's. This is a battle for the president to fight, for if Pickering loses, it will be the president's defeat.

--Terry Eastland, for the Editors