Pickled Pickering

Tuesday's World Events   —   Posted on May 10, 2005

(by Joe Maxwell, WorldMag.com) – The moment political junkies have awaited all year is coming soon. When GOP leaders renew their push for the confirmation of Judge Priscilla Owen and Judge Janice Rogers Brown, two circuit court nominees already approved by the Senate Judiciary Committee, left-wing interest groups will have to decide how vigorously to wag the Democratic dog.

That they can wag the dog is evident in the treatment in 2001 of Charles Pickering, an early Bush nominee to the 5th Circuit Court of Appeals. Judge Pickering’s resumé seemed impeccable–No. 1 in his law school class; successful lawyer; groundbreaking civil-rights and religious leader; bridge-building politician; respected district court judge.

Until mid-October of 2001 his confirmation seemed like a slam dunk, with a strongly positive review from the American Bar Association and apparent approval from Judiciary Committee chairman Sen. Patrick Leahy (D-Vt.).

As Mr. Pickering stated in his private journal, which he has now made available to WORLD, the word from then–Senate Majority Leader Tom Daschle was that the Pickering nomination wasn’t even on “their radar screen . . . no opposition.” Sen. John Edwards (D-N.C.) “committed to vote” for him, and Sen. Charles Schumer (D-N.Y.) predicted confirmation “before Christmas” of 2001. “Consequently,” the judge wrote, he was “naively telling folks that my nomination . . . was noncontroversial.”

But he hadn’t counted on symbolism: Even though Mr. Pickering was a civil-rights supporter and enjoyed great support from a spectrum of Mississippi’s African-American leadership, he was from Mississippi and could be ID’d in four ways that made him suspect: white male pro-life Republican. He noted in his journal, “I think they profiled me and since my nomination came up sooner than others, they spent their energy on making an example of me.”

On Oct. 15, 2001, three days before Mr. Pickering’s scheduled Senate Judiciary Committee hearing, People for the American Way issued an “alert” to “call your senators” to oppose Mr. Pickering, noting the judge was “strongly supported by fellow Mississippi Republican, Sen. Trent Lott” and had served on the Republican Party Platform Committee in 1976 that opposed Roe v. Wade and the feminist-backed Equal Rights Amendment.

Other groups also made noises, and Mr. Leahy particularly heard from Nan Aron of the Alliance for Justice, the catch-all judicial lobby for leftist organizations including the National Organization for Women, the pro-abortion group NARAL, the National Center for Lesbian Rights, and others. Ms. Aron said that Mr. Pickering “represents just the first threat to turn back the clock on rights all Americans rightly enjoy,” and warned that his views were similar to Supreme Court justices Antonin Scalia and Clarence Thomas.

Mr. Leahy had seen enough. Although the hearings were only two days off, he suddenly faxed a request to Mr. Pickering for a list of the judge’s more than 4,500 opinions rendered over more than 10 years, with special attention to civil-rights and discrimination cases. The judge got his staff working, and he testified for two hours on Oct. 18, until Democratic senators closed that hearing with calls for a second hearing that was scheduled for February, allowing ample time for anti-Pickering forces to prepare their assault.

An example of that preparation became known outside the organized left on Dec. 6, 2001, when a coalition of pro-abortion lobbyists met to discuss strategy for derailing judicial nominees. According to a memo obtained by WORLD, during a conference call hosted by the Ms. Foundation, Nan Aron, president of the Alliance for Justice, told her counterparts at other groups that the coming year was the “most important year in judicial nominations in decades. The Court[s] of Appeals are where we should all be focused, since there are no Supreme Court openings. They are the farm team for the Supreme Court.”

The lobbyists agreed to squeeze liberal Democratic senators on Dec. 11 and 12. One conference caller predicted, “There will be a major fight in January” over the Pickering nomination: “We can win on that fight, but it will be nasty and contentious.”

That it was, and Mr. Pickering later wrote in his journal, “I underestimated the groups that opposed my nomination. I think at first the Bush administration did likewise. I also think that all involved failed to understand the extent to which these groups were willing to go, their venom, vitriolic opposition, the fact that they were willing to go to the mat on nominees for the Court of Appeals.”

The Friday before Christmas, 2001, Mr. Pickering sat with his mother as she died.

At 4:55 that afternoon, a fax from Mr. Leahy demanded that hundreds of unpublished Pickering opinions be gathered together ASAP. “It was just 15 minutes before the Christmas holidays would start,” Mr. Pickering recalls. “I am convinced that their timing was intentional–to place as much psychological pressure on me as they could.”

As the judge’s staffers in late December and January gathered the unpublished opinions, Mr. Leahy’s judiciary staff hit them with new requests, posing “so many questions that it really almost shut me down.” The goal, Mr. Pickering wrote, was to fish for material that could associate him with Mississippi’s difficult past and the Republican Party’s conservative wing. Liberal groups in January released anti-Pickering reports and held press conferences charging guilt by association. More faxed questions kept arriving from Mr. Leahy.

Finally Mr. Pickering had his second hearing on Feb. 7, a grilling that lasted more than five hours. The Mississippi NAACP officially took an anti-Pickering position and Senate Democrats highlighted and skewed a few cases involving race, despite written protests from 81 Mississippians including former Democratic governors and black civil-rights leaders such as Charles Evers. To the very end, Sen. Ted Kennedy labeled Mr. Pickering a threat to civil rights, and Sen. Edwards, his 2004 presidential hopes in the balance, hotly cross-examined the judge. When the hearing ended about 7 p.m., “things were almost a blur,” Mr. Pickering wrote.

His bid for Senate confirmation stalled through 2002. President George Bush resubmitted his nomination in 2003, then gave him a recess appointment to the 5th Circuit Court for one year. In Dec. 2004, his honor in place, Mr. Pickering, 67, not having been confirmed, was forced to retire. Today, he is senior counsel at a top Mississippi law firm and is writing a book for Stroud & Hall publishers of Atlanta. He enjoys time at his farm in Laurel, Miss., where he flies the Stars and Stripes by a cyprus-sided home near a fish-stocked lake.

In 2005, some things have changed. The Republicans, with 55 Senate seats, are now (or should be) in firm control. Ms. Aron maintains that a “die-hard conservative activist with strongly held views on critical constitutional issues” is worth assaulting, but it may be harder to assault a woman. Liberal reporters are likely to be megaphones for political distortion of judges’ records, but conservative media now have more of an opportunity to talk back. The question may be whether Senate GOP leaders are willing to lead.

Reprinted here with permission from World Magazine.  Visit the website at www.worldmag.com.

Questions

1.  Read the procedure for becoming a federal judge below.  In what phase of the process did Judge Pickering’s nomination stall?

2.  List Judge Pickering’s achievements stated on his resume.  What geographic area does the 5th Circuit Court of Appeals cover? (For a map, click here.)

3.  Name the Senators (and their party affiliation) who made the following statements about Judge Pickering’s nomination:

______________________________ “committed to vote” for him

______________________________ confirmation “before Christmas”

______________________________ “…no opposition”

What happened to change their minds?

4.  Name the 4 ways of identifying Judge Pickering that were believed to be held against him. (paragraph 5)  Do you agree?  Explain your answer.

5.  Who is Pat Leahy?  How was he involved with Judge Pickering’s hearing?  What additional information did Senator Leahy ask the judge to provide two days before his hearing?

6.  Should Judge Pickering have been confirmed to the 5th Circuit?  Should the Democrats have done anything different?  Should the Republicans have done anything different?  Explain your answers.


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Background

NOMINATING FEDERAL JUDGES – AN OVERVIEW*

1) President selects potential candidates, usually with the advice from White House Counsel.

2) President usually interviews or meets with the candidates for the Supreme Court in private. While the public is frequently aware of these meetings, the contents of the meetings are usually not disclosed.  Occasionally, the name of a nominee is unofficially leaked to the press.

3) The White House Counsel or other senior administration official will meet with federal judicial nominees. The president may or may not meet with a federal judicial nominee.

4) President submits the name(s) to the Senate.

5) In some cases, interest groups will run advertisements in favor of or against a nominee, usually at the Supreme Court level. These public relations campaigns are aimed at convincing the public and the Senate to support or oppose the Supreme Court (or federal judicial) nominee.

6) Senate Judiciary Committee holds a committee hearing in which the committee members question the nominee and other witnesses (such as friends and previous co-workers) about the nominee’s background and qualifications. These hearings are televised and segments are frequently shown on news programs. All Senators have access to transcripts and tapes of the hearings.  (Before the hearing, both committee staff and the FBI will have completed an extensive background check on the nominee.  This check will ensure that the nominee has paid his taxes, has not been convicted of a serious crime, is a person of good standing in his/her community, etc.)

7) Senate Judiciary Committee, led by the chairperson, holds a vote on whether or not to recommend the nominee for confirmation.

8) Full Senate votes on whether or not to confirm the nominee. A simple majority (51 votes or more) is required. However, filibusters by the minority party can prevent a vote on a judicial nomination from coming to the floor. In recent years, with a closely divided Senate, this has become a more common tactic used by the minority. Since it takes 60 votes to cut off a filibuster and no one party has had that many members, it is a powerful tool used by the minority party to block a nomination. Such tactics are often criticized by the majority party as unconstitutional.

9) If the full Senate votes to confirm by 51 votes or more, the nominee is confirmed.

*from “Nominating Federal Judges” Lesson Plan by Rebecca Small, Herndon High School, AP Government Teacher