Senate Vote on Pickering Is a Matter of Timing

Two years, five months and five days after President Bush tapped him for a promotion, U.S. District Judge Charles W. Pickering Sr. of Mississippi today expects to get his first vote from the full Senate in his quest for confirmation to an appellate court.

Few doubt that the nomination, a symbol of the bitter ideological battle over the federal judiciary, will be stalled by a Democratic filibuster.

But Bush and his Republican allies may nonetheless achieve a political goal: embarrassing Democrats just before an important state election. The Senate vote will spotlight the divide on Pickering between top Democrats in Mississippi, who call the judge a racial conciliator and support his confirmation, and their peers in Washington, who oppose him because of his record on civil rights and other issues.

To help drive the wedge, Senate Republican leaders scheduled the Pickering vote to occur five days before the closely fought Mississippi gubernatorial election. That will give Republicans a well-timed opportunity to portray Democrats in Washington as out of step with a region where many Democratic incumbents are struggling to hold onto office.

And it will give Bush a fresh excuse to talk up his embattled judicial nominee when the president swings through the state Saturday to campaign for GOP gubernatorial candidate Haley Barbour, former chairman of the Republican National Committee.

Gov. Ronnie Musgrove, who faces a strong challenge from Barbour on Tuesday, sent senators a letter last month urging them to back Pickering.

“Mississippi has made tremendous progress in race relations since the 1960s, and Charles Pickering has been part of that progress,” Musgrove and four other Democratic state officials wrote. “We ask the United States Senate to stand up to those that malign the character of Charles Pickering, and give him an up or down vote on the Senate floor.”

Pickering, 66, has awaited such action since Bush chose him on May 25, 2001, to fill a vacancy on the U.S. 5th Circuit Court of Appeals in New Orleans. In March 2002, when the Senate was under Democratic control, his nomination was blocked on a party-line vote of the Senate Judiciary Committee. He was the first Bush judicial nominee to suffer such a setback.

Critics said Pickering, a U.S. district judge since 1990, was too conservative on women’s and civil rights. They denounced his handling of a 1994 civil rights case, in which Pickering imposed a more lenient sentence on a convicted cross-burner than called for under U.S. sentencing guidelines.

Pickering suffered another setback in December when one of his chief patrons in Congress, Sen. Trent Lott (R-Miss.), was forced to step down as Republican leader after making racially charged remarks that sparked a political furor. The nomination died at the end of the last Congress.

But Bush renewed it after Congress convened in January with a new Republican Senate majority.

On Wednesday, Senate Minority Leader Tom Daschle (D-S.D.) reiterated his opposition to Pickering.

“I don’t think there’s any question this man is not qualified for a promotion,” Daschle told reporters. “That’s what we’re talking about here, a promotion. He’s already a district judge. That will not be taken away. The question is, should he be promoted? And our answer is no. He should not.”

Under Senate rules, Daschle’s party has the power to block an up-or-down vote on a nomination even though Republicans hold 51 seats in the 100-member chamber. It takes 60 votes to end a filibuster, and Republicans have repeatedly failed to meet that threshold this year on controversial judicial nominations. Miguel A. Estrada, a Washington lawyer whom Bush nominated to an appellate judgeship, withdrew after failing to win enough Democratic support.

Other Bush judicial nominees facing filibusters, or filibuster threats, are Alabama Atty. Gen. William H. Pryor Jr., Texas Supreme Court Justice Priscilla R. Owen, Los Angeles Superior Court Judge Carolyn B. Kuhl, and California Supreme Court Justice Janice Rogers Brown.

Republicans, aware that the lifetime appointments Bush makes to the federal bench will have lasting impact on social policy, are eager to force action on all his nominations.

“I’m going to do everything within my power as majority leader of the United States Senate to see that every one of the judicial nominees coming from the president of the United States gets what we constitutionally deserve -- an up or down vote,” Sen. Bill Frist (R-Tenn.) said in a television interview Sunday with Fox News.

Frist even raised the possibility of a unilateral rule change by Republicans that would allow the Senate to approve judicial nominations with a simple majority vote. Such a move, which would bypass Democratic filibuster efforts, is considered unlikely. It would ignite a political firestorm in the Capitol and possibly lead Democrats to refuse to cooperate on a wide range of legislation. One Democrat who backs Frist is Sen. Zell Miller of Georgia. He said filibusters of Pickering and other nominees “could do harm [to Democrats] throughout the South.” Many Southerners, Miller said, “think the president ought to be able to name his appointees -- to have his own batting order.”