Senate Panel Rejects Bush’s Judge Nominee

Democrats on the Senate Judiciary Committee rejected President Bush’s choice of conservative Mississippi Judge Charles W. Pickering for the U.S. Court of Appeals on Thursday, signaling that they would engage in payback for the way Republicans treated many liberal nominees in the 1990s.

The panel voted, 10-9, along party lines to kill Pickering’s nomination. Democrats called him too conservative and too political to be promoted to a higher court.

Unless the Republicans succeed in reviving his nomination on the Senate floor, which is considered unlikely, Pickering will be the first of Bush’s court nominees to lose in the Democrat-controlled Senate.

So far, 42 of Bush’s judges have won Senate confirmation, including seven who sit on the appeals court. Last fall, for example, the Senate quickly and unanimously approved Bush’s pick of conservative Louisiana Judge Edith Brown Clement for the U.S. 5th Circuit Court of Appeals in New Orleans.

But when the 64-year-old Pickering was chosen for the same appeals court, a coalition of liberal, civil rights and women’s rights activists in Washington mounted an all-out campaign to defeat him.

They retraced Pickering’s early life in the segregated Mississippi of the 1960s and portrayed him as a judge whose “hard right” political leanings found their way into his courtroom.

The battle escalated in recent weeks, affirming the judicial selection process as perhaps the leading forum of ideological warfare between the parties. President Bush joined the fray this week and urged the Senate to put aside “ideological battles.”

Republicans said Pickering had been unfairly tarred by “outside liberal left-wing groups,” as Sen. Charles E. Grassley (R-Iowa) put it Thursday. “It’s a dark day for the Senate when these attack groups . . . can destroy a decent and well-qualified nominee.”

The Democrats played down the talk of racism and conservative extremism. They took turns praising Pickering as a “decent and good man.”

Instead, they concentrated on his record as a judge. He had been reversed 26 times by the appeals court. Some of his rulings were overturned as being flatly wrong.

“He failed to follow the clear law,” said Sen. John Edwards (D-N.C.).

Pickering was also criticized for his handling of a 1994 cross-burning case.

The judge refused to give Daniel Swan, the convicted cross burner, the seven-year prison sentence required by the U.S. sentencing guidelines, and he met privately with prosecutors to pressure them to agree to a more lenient term. The judge said the sentence was too severe and went to considerable lengths to avoid imposing it.

Pickering then ordered the court record sealed. The Democrats learned the details only hours before a committee hearing on the nomination.

“In my experience, these things are very outside the norm for a judge,” said Edwards, a veteran trial lawyer.

In the end, Democrats said the Pickering vote had less to do with the legacy of Mississippi in the 1960s than with the legacy of Bill Clinton in the 1990s.

“I’m not prepared to reward the president’s party for their obstructionism over the last six years,” said Sen. Richard Durbin (D-Ill.). “Judge Pickering certainly received better treatment from this committee than did President Clinton’s nominees to the 5th Circuit.”

One by one, the Democrats made clear they were not ready to put aside the Republicans’ tactics when a Democrat was in the White House.

After the GOP took control of the Senate in 1995, the Republicans blocked a series of Clinton’s court nominees, especially racial and ethnic minorities and especially in the South. The 5th Circuit was a particular battleground.

“During the last six years of the Clinton administration, this committee did not report out a single judge to the 5th Circuit Court of Appeals,” said Sen. Russell D. Feingold (D-Wis.).

In 1997, Clinton nominated Jorge Rangel, an attorney from Corpus Christi, Texas, to the 5th Circuit. He withdrew in frustration two years later. Clinton then chose Enrique Moreno, a Harvard-educated lawyer from El Paso. He also nominated H. Alston Johnson, a Louisiana law professor for the same court.

But the Republicans refused to allow a hearing for any of those nominees.

Now the Democrats said they were not eager to move quickly to fill those vacant seats on the 5th Circuit with conservative Bush nominees.

Republicans say they will move to bring the nomination to a vote on the Senate floor, where at least two Southern Democrats have said they could support Pickering.

The Senate rules allow for such a vote, despite the committee vote to reject the nomination. However, Senate Majority Leader Tom Daschle (D-S.D.) can demand a super-majority vote of 60 before bringing the matter to the floor, staffers say. If so, that would kill the nomination.

Bush also urged a floor vote on Pickering. In a statement after the committee action, he said he was “deeply disappointed.” The judge “deserves better than to be blocked by a party-line vote of 10 senators on one committee. The voice of the entire Senate deserves to be heard.”

As a veteran U.S. district judge and a well-known Republican leader in Mississippi, Pickering had strong qualifications for the job and determined supporters, including prominent black Mississippians who said he has changed his views on race.

But the Democrats said they will not defer to Bush’s choices if he selects strident conservatives. They pointed out that they had moved quickly to confirm most of the president’s judicial nominees.

However, the appeals court nominees are more hotly disputed than the district judgeships. Those judges oversee the law in their regions, and both sides pay closer attention to who sits on those courts.

Bush has made 29 appellate nominations, 22 of which are pending.

Liberal legal advocates say future battles depend on who is selected for those seats.

“If they push more far-right candidates, there will be more fights,” said Elliot Mincberg, legal director for People for the American Way. “If they pay more attention to the ‘advise’ in the [Constitution’s] ‘advise and consent’ process, there won’t be. It really depends on who the White House chooses.”