January 17, 2004

Bush Seats Judge, Bypassing Senate Democrats

By NEIL A. LEWIS
 

 

WASHINGTON, Jan. 16 — President Bush on Friday used the Congressional recess to install Charles W. Pickering Sr. in a federal appeals court seat from which he had been blocked twice by the Senate because of Democratic opposition.

In using a president's power to make appointments during Congressional recesses to fill vacancies, Mr. Bush was able to skirt the Senate confirmation process, which Democrats have used for three years to block not only the Pickering nomination but also those of several other Bush judicial nominees.

In a statement announcing the appointment, the president said, "Today I was proud to exercise my constitutional authority to appoint Judge Charles W. Pickering to serve on the United States Court of Appeals for the Fifth Circuit."

Mr. Bush said he had been forced to do so because "a minority of Democratic senators has been using unprecedented obstructionist tactics to prevent him and other qualified individuals from receiving up-or-down votes."

"Their tactics," he added, "are inconsistent with the Senate's constitutional responsibility and are hurting our judicial system."

Judge Pickering, 66, has served on the Federal District Court in Hattiesburg, Miss., for more than 13 years. Under the Constitution, his new appointment to the Fifth Circuit court, based in New Orleans, lasts until the end of the next Senate session, which is expected to conclude around October, unless he is confirmed by the Senate in the meantime. That prospect is unlikely.

The Pickering episode is the latest chapter in a long-running war between Republicans and Democrats over judicial nominations. During the 1990's, a Republican-controlled Senate rejected by vote or procedure 114 of President Bill Clinton's nominees to the bench.

Beyond the Senate battlefield, the new appointment could also have repercussions on a second front, in the coming national elections.

The debate over the nomination had centered on Judge Pickering's civil rights record as a Mississippi lawyer, state lawmaker and federal judge over the course of decades. Democrats, including several presidential candidates, have portrayed him as insensitive to racial issues, and were quick to charge on Friday that the recess appointment, only three days before the Martin Luther King holiday, demonstrated Mr. Bush's own indifference to civil rights.

"By circumventing the Senate to recess-appoint Charles Pickering," said the Senate Democratic leader, Tom Daschle, "the president has confirmed that he has no interest in working in a bipartisan manner to appoint moderate judges who will uphold the law."

Mr. Daschle added that "by taking this step on the eve of the Martin Luther King Jr. holiday, the president has shown a shocking disregard for the spirit of the holiday and has betrayed his own words of tolerance."

Republicans have depicted the opposition to Judge Pickering as an instance of bias against Southerners, an accusation they used with success in at least one Senate race, in 2002, after Judge Pickering's nomination was first blocked.

Judge Pickering was nominated to the appeals court soon after Mr. Bush took office. Senate Democrats argued that he did not deserve elevation because he had written an article as a young man recommending ways to strengthen Mississippi's anti-miscegenation laws, left the Democratic Party in 1964 when the national party tried to integrate the state delegation to the national convention and, more recently, presided over a 1994 trial in which he took extraordinary steps to reduce the sentence of a man convicted in a cross-burning incident.

Mr. Bush and Republican senators replied that the judge's record was being distorted. They said that in recent decades he had been a force for racial reconciliation in his home state and had strong support among local African-Americans. His actions in the cross-burning case, they said, were motivated by a sense that prosecutors had mishandled the case and let the principal offender off lightly.

Maintaining that Mr. Bush was trying to pack the federal courts with staunch conservative ideologues, Democrats began blocking some of his nominees during his first two years in office, when they controlled the Senate. When Republicans took control, by a narrow margin, the Democrats began using the threat of filibusters. Republicans, with 51 seats, could not muster the 60 votes needed to undercut that threat.

In the electoral arena, Senator Max Cleland, Democrat of Georgia, was defeated at the polls little more than a year ago in part because of his vote against the Pickering nomination.

Merle Black, a professor of politics at Emory University, said Friday that the recess appointment of Judge Pickering should be a political bonus for Republicans at the polls.

"This will be very popular among whites in the Deep South and maybe other parts of the nation as well," Professor Black said. "This is a way for the president to assure his conservative and moderate base that he is going to use his power to stand up for them."

There have been more than 300 judicial recess appointments in the nation's history, though the Congressional Research Service says few have occurred in recent years. In the final days of his term, President Bill Clinton used recess-appointment power to name Roger Gregory, a black lawyer, to the appeals court based in Richmond, Va., saying he needed to do so because Republicans had blocked his efforts to give that court its first African-American. Three Supreme Court justices were also initially put on the court as recess appointments.

Until Friday, though, Judge Gregory was the only recess judicial appointee in more than 20 years. When he took office, Mr. Bush included Judge Gregory in his initial batch of appeals court nominees, in what officials said was a gesture of conciliation. The judge was easily confirmed by the Senate.

While confirmation of Judge Pickering in the coming session is improbable, he could conceivably be renominated should Mr. Bush win a second term and Senate Republicans win a filibuster-proof majority in the next election.

Reached at his home in Hattiesburg on Friday, Judge Pickering said that he was grateful for the opportunity to serve on the appeals court. By accepting the recess appointment, he leaves his seat on the district court and, if he is not confirmed by the Senate as an appellate judge, will have to retire.