Faceoff: Nit-Pickering?

WASHINGTON, March 15 (UPI) -- Did U.S. District Judge Charles Pickering deserve a vote of the full Senate on his nomination? UPI National Political Analysts Peter Roff, a conservative, and Jim Chapin, a liberal, face off on opposite sides of this critical question.

Roff: There should have been a vote

Two important issues have intersected during the confirmation of U.S. District Judge Charles Pickering to a seat on the U.S. 5th Circuit Court.

The first is his qualifications. The second is the process itself.

Pickering easily won confirmation to his current post in 1990. He is a qualified if not especially distinguished jurist who should have been a non-controversial choice for an appellate slot.

Partisan politics derailed the nomination.

Senate Majority Leader Tom Daschle, D-S.D., seems bent on stopping Bush's court nominees, likely fearing the Republican-appointees at the circuit level will turn back his party's ideological gains.

Pickering was subjected to a scandalous attack by self-anointed civil liberties groups based in Washington. Despite their claims to the contrary, groups like People for the American Way deliberately left the impression that Judge Pickering is a racist.

Even the liberal Washington Post editorialized against the attacks. "Opposing a nominee should not mean destroying him. And the attack on Judge Pickering has become an ugly affair. ... The judge's opponents ... have tried to paint him as a barely reconstructed segregationist. To do so, they have plucked a number of unconnected incidents from a long career: a law review article from 1959 on the state's anti-miscegenation statute; ... his incidental contacts as a state legislator in the 1970s with the Mississippi state Sovereignty Commission; and his handling of a cross-burning case in his court a few years back, to cite a few examples. None of these incidents, when examined closely, amounts to much, but opponents string them together, gloss over their complexities and self-righteously present a caricature of an unworthy candidate."

Blacks from Mississippi who know him well came forward to attest to his honor and strong character, whatever his partisan political views may be. Their support pitted them against Pickering critics like U.S. Rep. Bennie Thompson, D-Miss., a black Democrat, who called the judge's black supporters "Judases."

Judge Pickering was swept up in an ugly process, motivated by the idea that George W. Bush should not be allowed to reshape the federal judiciary because of the narrowness of his victory. Bush opponents have taken the stance that his nominees must be stopped using whatever means available. Never, in the eight years of the Clinton administration, did the Republicans treat judicially nominees as shabbily as this.

The Democrats wanted to vote down the nomination in committee and end it there yet, as the White House pointed out, a favorable recommendation is not required to send a nomination to the floor. Since 1938, only four judicial nominees prior to Pickering were denied -- if they wanted it -- the opportunity to have the full Senate vote after the Senate Judiciary Committee voted on them. Mere partisanship is not sufficient reason to break this precedent.

If, as Daschle says, the Senate is merely exercising its constitutional duty to advise and consent on these matters, then the full Senate should have been allowed to vote. The Constitution does not assign that responsibility to committees in lieu of action by the full Senate, no matter how Daschle reads it. If the committee votes on the nomination, then the full Senate should have its say as well.

Chapin: A bad result for a bad candidate

Let's be clear about this -- the defeat of Charles Pickering is not a loss for the 5th U.S. Circuit Court of Appeals. Pickering was a pedestrian candidate backed by the minority leader of the Senate, Trent Lott, R-Miss., for reasons of long-time friendship, and probably because his son "Chip" Pickering is sitting in the House of Representatives from the same state.

Mississippi is, notoriously, the most racially polarized state in the Union. In 2000, 96 percent of the blacks and only 17 percent of the whites in the state voted for Al Gore.

Pickering's long political/judicial career in the state has been built on that racial polarization. In every decade he appeared as a representative of white interests -- in a state in which such interests were built on oppressing blacks.

Let's review those "incidents" that the Washington Post thought were "incidental" in his career.

The 1959 law review article on the state's anti-miscegenation statute suggested ways in which the statute could be strengthened to make it more difficult for blacks to marry whites -- and it was immediately acted upon and passed. The Mississippi State Sovereignty Commission was, of course, the legal arm of state policy tied into repression of black political activity.

Unrelated? Gee, that ties right back into his first political intervention in 1959. It shows, in fact, a consistency that would be admirable if it were not in the service of so rancid a cause.

Pickering supplemented this consistent record with ex-parte remarks on subjects ranging from his opposition to "one-man-one vote" legislation (he no doubt misses the "good old days" when blacks didn't vote except at the risk of their lives) and disquisitions on liberals which no doubt go down well in the Republican country clubs of Mississippi, but hardly make him a sterling candidate for advancement on the federal bench.

Of course, the deeper issue behind Pickering's nomination fight is that President George W. Bush, with all the assurance of 47.9 percent of the American people having voted for him, thinks it is an insult that he shouldn't be allowed to reshape the federal bench in a hard-right direction.

Since his own party delayed, dismissed and dissed President Clinton's nominees during the six years that it controlled the Senate, it's kind of hard to make much of a case for Bush's "right" to turn the courts right, or for that matter, that that's what the country wants.

Bush appointees, for example, have to meet the litmus tests of Bush's buddies in the Federalist Society and the Christian Coalition, while, of course, the American Bar Association has been taken out of the review process.

We already know, from ample evidence, that this president believes in his right to do anything he feels like without even notifying the congress of his intentions. Unfortunately for him, the Constitution requires that his nominees for life-time appointees do get Senate approval, and the Senate rules, provide that nominations killed in committee are dead, dead, dead.

If the president wants to go to the country in the next election, outlining the ideological views that he expects his candidates for the judiciary to follow, such as clear-cut opposition to Roe vs. Wade, then he should do so. But if he plays the same games in 2004 as he did in 2000, winking and nodding to the right while telling the center that he wasn't interested in a radical overhaul of the American Constitution, then there is no particular obligation on the opposition party to give him the right to appoint judges without tough scrutiny.