Panel Rejects Bush Nominee for Judgeship

By NEIL A. LEWIS, NYTimes on the Web, March 15, 2002

WASHINGTON, March 14 — The Senate Judiciary Committee shut the door today on President Bush's efforts to promote Judge Charles W. Pickering Sr. to an appeals court post, as Democrats used their majority to reject his confirmation in the committee and then refused to send the nomination to the full Senate as the president had requested.

Judge Pickering, a trial judge in Hattiesburg, Miss., represented the Bush administration's first judicial confirmation fight and has now become its first defeat. Mr. Bush had been trying to name the 64-year-old conservative federal district judge to a seat on the United States Court of Appeals for the Fifth Circuit, based in New Orleans.

The solid vote of the Judiciary Committee's 10 Democrats ended what Judge Pickering said were his hopes to cap his career with a few years on the appeals court. More important, the Senate Democrats said they had sent a message to President Bush that with their majority, they have the power to block his judicial choices. They said he should take that balance of power into account when he nominated judges and Supreme Court justices.

While much of the debate about Judge Pickering was over his record on racial issues and his performance in 11 years on the bench, some Democrats were straightforward in declaring that they were also voting against the nomination to discourage Mr. Bush from believing he could send up legions of conservative judicial nominees who would automatically win confirmation.

Senator Charles E. Schumer, a New York Democrat who is a member of the committee, said Judge Pickering was a decent and honorable man and certainly not a racist, as he had been portrayed by some groups opposing his nomination.

"This is about what kind of appellate judge he would be and, most of all, about maintaining balance on our federal courts," Mr. Schumer said.

He noted that Mr. Bush had said during the presidential campaign that he would select judges in the mold of the conservative justices Antonin Scalia and Clarence Thomas, and said that trying to "stack the courts with Scalias and Thomases" was unacceptable.

After several hours of speeches, the committee voted 10 to 9 along party lines to reject the Pickering nomination. It then quickly voted the same way to reject two Republican proposals to send the nomination to the full floor, where as many as three Democratic senators had suggested that they might break party ranks and provide enough votes to confirm Judge Pickering.

Mr. Bush said tonight that he was "deeply disappointed that Judge Charles Pickering, a distinguished judge who was unanimously confirmed by the Senate in the past, is being denied the opportunity to further serve his country."

Before the Judiciary Committee vote, Senator Orrin G. Hatch of Utah, the panel's ranking Republican, complained that Judge Pickering was the object of an ugly smear campaign, largely conducted by liberal advocacy groups based in Washington. Mr. Hatch did not repeat his comment last week that Judge Pickering was being subjected to "a lynching," but he said the nominee's record was distorted beyond recognition.

Senator Edward M. Kennedy, Democrat of Massachusetts, said he believed that Judge Pickering did not have "the temperament, the moderation or the commitment to core constitutional protections that is required for a life tenure position" on the appeals court.

Judge Pickering was not in the committee room during the session but at his home in Mississippi. His son, Representative Charles W. Pickering Jr., a Republican Congressman from Mississippi, who is known as Chip, sat in the front row of the committee room, frequently wiping his brow and rubbing his hands. He shook his head "no" each time he had to endure criticism of his father from Democrats.

The campaign against the Pickering nomination switched directions weeks ago. Some advocacy groups first portrayed Judge Pickering as someone highly insensitive to racial justice. They cited his having written, when he was 21, an article recommending changes to strengthen the state's law against racially mixed marriages. They also pointed to his defection from the Mississippi Democratic Party in 1964, when it was forced to integrate its national convention delegation.

But after Judge Pickering's supporters countered with accounts of his efforts at racial reconciliation in Mississippi, the main dispute became his conduct as a judge.

Critics emphasized his actions when he presided over a 1994 trial involving a cross burning. Judge Pickering aggressively promoted his views to prosecutors that the sentence for the one defendant who was convicted at trial was too severe, even though it was mandated by the law. In the end, he persuaded prosecutors to drop the charge that would have required the long sentence.

While the Pickering nomination fight had its own trajectory, people on both sides of the issue were keenly aware that they were testing the battle lines for future confrontations over the ideological shape of the federal courts.

The hearing also exposed a whiff of retribution as several Democrats complained that three of President Clinton's choices for the Fifth Circuit were not even given a hearing.

Senator Richard J. Durbin, Democrat of Illinois, said he would refuse to "reward the president's party for the vacancies created by their obstructionism during the last six years."

With an eye on future battles, Republicans were similarly working to establish ground rules for future confirmation battles to their liking, emphasizing that President Bush should be given great leeway in his choices to the federal bench.

Mr. Bush had appeared alongside Judge Pickering in the Oval Office last week to improve his confirmation chances, and on Wednesday issued an appeal at a news conference to send the nomination to the full Senate. Tonight Mr. Bush placed the bloc vote by Democrats in a more critical light, saying, "The action of the Senate Judiciary Committee to refuse Judge Pickering a vote by the full Senate leaves another empty seat in the federal judiciary at a time when we face a vacancy crisis."

The Pickering nomination fight included a reminder today of another battle, the 1991 confirmation of Clarence Thomas to the Supreme Court after he was accused of sexual harassment by a former associate. His wife, Virginia Thomas, published an open letter to Judge Pickering in The Wall Street Journal today that said he was being opposed "because you will not rule in favor of the hard left's political agenda."

Mrs. Thomas, an official at the Heritage Foundation, a conservative study group, also said, "The Democrats on the committee and the outside groups that egg them on don't think of you as a human right now."