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In Rare Move, Bush Installs Judge Pickering

Democrats who had blocked the 5th Circuit nominee are bypassed during the Senate recess.

January 17, 2004|Richard B. Schmitt and Richard Simon | Times Staff Writers

WASHINGTON — 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.

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