In Rare Move, Bush Installs Judge Pickering

Times Staff Writers

President Bush unilaterally elevated controversial Mississippi Judge Charles W. Pickering Sr. to the federal appeals court on Friday, opening a new front in the administration's nearly three-year battle with Congress over judicial nominees.

Bypassing the confirmation process that Senate Democrats have used to block Pickering and some other Bush nominees, the president installed Pickering by a recess appointment. The constitutional device -- unusual but not unheard of -- gives the judge a year to serve until a new Congress convenes in January 2005. He would then have to be renominated and confirmed to retain his seat for life.

Pickering was to be sworn in as a member of the appellate bench Friday night, and briefs in cases pending before the court already were in transit to his home, a source said.

The 66-year-old federal district court judge has been awaiting a vote on the Senate floor since Bush chose him in May 2001; he is one of four Bush nominees against whom Senate Democrats have sustained filibusters over the last year.

Democrats have accused Pickering of being hostile to civil rights, abortion rights and other issues, while his supporters -- including a number of prominent Democratic lawmakers in his home state of Mississippi -- say his record has been distorted.

The White House decision to elevate Pickering to the 5th U.S. Circuit Court of Appeals in New Orleans -- historically a bastion of civil-rights jurisprudence -- while the Senate was in recess is certain to enflame election-year tensions.

Elliot E. Slotnick, a political scientist at Ohio State University who has studied judicial nominations, said the appointment "will only fan the flames of the contentiousness we continue to witness in judicial selection politics." He said the appointment also illustrates how the administration has taken an uncompromising approach to the nomination battles.

"When the choice has come down to efforts at moderation, compromise and accommodation versus attempting to satisfy the conservative elements in the Republican electoral base," Slotnick said, "the administration simply chooses not to compromise."

Bush, citing what he called the Democrats' "unprecedented obstructionist tactics," said in a statement Friday that he was "proud to exercise my constitutional duty" in appointing Pickering, who was named a U.S. district court judge in 1990.

"He will perform a valuable service on a court that needs more judges to do its work with the efficiency the American people deserve and expect," Bush added. "Again, I call on the Senate to stop playing politics with the American judicial system and to give my nominees the up-or-down votes they deserve."

Senate Majority Leader Bill Frist (R-Tenn.) called the president's action the "proper response to unprecedented obstructionism" by Senate Democrats.

"I'm grateful to the president for his continued confidence and support," Pickering said in a statement released by his chambers in Hattiesburg, Miss. "I look forward to serving on the 5th Circuit."

"I have a good record," he added in a telephone interview. "It has been a long, long journey."

The recess appointment incensed many congressional Democrats and liberal groups. And the fact that Bush announced it just before the Martin Luther King Jr. federal holiday hardened the ill will.

"The president's actions are a disgrace to the memory of Dr. King. Clearly, protecting our civil rights and our civil liberties are not top priorities for President Bush," said Rep. Elijah E. Cummings (D-Md.), chairman of the Congressional Black Caucus. "The recess appointment of Charles Pickering is yet one more attempt by the Bush administration to turn back the clock on the rights and freedoms that countless Americans marched for and died for over the last 40 years."

Senate Minority Leader Tom Daschle (D-S.D.) said: "It is now clear that the White House will exploit any procedural tactic in order to pack the courts with right-wing ideologues."

As evidence of Pickering's alleged insensitivity, critics have cited his role in giving a reduced sentence to a white man convicted in a 1994 cross burning.

"A man who defended cross burning does not deserve elevation to the bench," Sen. Charles E. Schumer (D-N.Y.) said, calling Bush's action to bypass the Senate a "finger in the eye" to the spirit of bipartisanship.

"It is an extraordinary act of insensitivity," added Marcia Greenberger, co-president of the Washington-based National Women's Law Center, observing the timing of the announcement before the King holiday. "It is really a severe slap in the face to all the principles that Martin Luther King stood for."

Democrats -- along with a coalition of liberal, civil rights and women's rights activists -- have accused Pickering of injecting his personal and political views into court cases. A focus of the debate has been his intervention to reduce a legally prescribed minimum sentence in the cross-burning case.

The judge said the sentence was too severe, and Republicans have accused Democrats of distorting the judge's record for political gain.

Sen. Trent Lott (R-Miss) -- a close friend of the nominee -- said critics of the judge had "unfairly smeared the reputation of a good man just to pursue their very narrow political agenda."

"With each passing day, more people are coming to know Judge Pickering as we Mississippians do -- as a man of unquestioned character and an outstanding jurist of distinction, with skills and integrity that will be well placed on the 5th Circuit Court of Appeals," Lott said, pledging to work hard for his permanent confirmation.

Under the Constitution, while Congress is in recess, the president can appoint individuals to serve for the remainder of a session. Some senators regard the maneuver as an assault on the Senate's prerogatives. But presidents of both parties have used the little-known power.

In December 2000, President Clinton made a recess appointment of Roger Gregory as the first African American to the 4th U.S. Circuit Court of Appeals in Richmond, Va., after the nomination had stalled because of Republican opposition. Gregory was renominated by Bush and confirmed by the Senate.

Throughout history, presidents have used the power more than 300 times to appoint judges, according to Randolph J. May, a senior fellow at the Progress & Freedom Foundation, a Washington think tank. President Eisenhower made three recess appointments to the U.S. Supreme Court -- including Chief Justice Earl Warren.

Nonetheless, Sen. Jon Corzine (D-N.J.), chairman of the Democratic Senatorial Campaign Committee, said the Pickering appointment "proves the arrogance of the Bush administration and its lack of respect for the Senate's constitutional role to advise and consent to the president's choices for the federal bench."

The appointment also drew criticism from Democrats seeking their party's presidential nomination. Sen. John F. Kerry (D-Mass.) issued a statement calling it "outrageous" that "one day after laying a wreath on Martin Luther King's grave, George W. Bush is unilaterally installing a man on a federal appeals court who advocated tirelessly on behalf of a cross-burner." And former Vermont Gov. Howard Dean called Bush's action a "polarizing move showing the president's utter disdain for constitutional checks and balances."

Some interest groups, however, applauded the move.

"At a time when our courts at every level are overstepping their bounds by sanctioning same-sex marriage and infanticide and stripping us of our religious freedoms, President Bush has taken the first step to ensure that our federal courts are filled with jurists who understand their role is to follow the Constitution, not reinvent it," said Tony Perkins, president of the Family Research Council, a conservative advocacy group. Perkins called the appointment "a bold and necessary move by President Bush."

A Democratic-controlled Senate blocked Pickering's nomination in March 2002.

Bush renewed the nomination last January with a new Republican Senate majority. But in October, Pickering's allies fell six votes short of the 60 needed to bust a Democratic filibuster and force a vote on his nomination.

"Opponents have only themselves to blame," said Sen. John Cornyn (R-Texas). "They've prevented an up-or-down vote, and the president exercised a constitutional option to end an unconstitutional filibuster."

Sen. Orrin G. Hatch (R-Utah), chairman of the Senate Judiciary Committee, said in a statement that he expects Pickering to "continue to serve the country with distinction in this new position from the federal bench."

Times staff writer Edwin Chen contributed to this report.

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