Pickering Allies See Progress

Posted September 26, 2003 at 6:17pm

With his approval by the Senate Judiciary Committee a foregone conclusion, Judge Charles Pickering’s bid for confirmation to a circuit court seat rests in the hands of a half dozen undecided Democrats.

Pickering’s nomination to the 5th U.S. Circuit Court of Appeals is expected to be voted on Thursday by the committee, where the 10-9 GOP edge will in all likelihood reflect the final margin of victory. That would push the nomination out of the panel and to the floor, probably sometime in mid to late October when Republicans are planning several other votes on contentious judicial nominees, according to Senators and aides.

The judge’s closest supporters said last week they are within striking distance of securing the 60 votes needed to break a likely filibuster by Democrats, with the focus on Southerners.

“We’re over 55 and approaching 60,” said Rep. Chip Pickering (R-Miss.), the judge’s son. Rep. Pickering has waged his own lobbying effort to win over wavering Democrats in the past six months.

In addition to 51 Republicans, all of whom are expected to vote in favor of confirmation, the GOP has the public backing of at least three Democrats and the chamber’s lone independent. Sen. Zell Miller (D-Ga.), who has voted for every one of President Bush’s judicial nominees, publicly lashed out at Democratic leadership last March after the Judiciary Democrats, then in control of the panel, rejected Pickering’s nomination on a 10-9 party-line vote.

In a big switch from his past opposition to Pickering, Sen. Jim Jeffords (I-Vt.) announced Sept. 17 that he would support Pickering, citing a conversation he had with a good friend, the late 2nd Circuit Judge Fred Parker. Just weeks before his death last month, Parker urged Jeffords to support Pickering.

Sens. John Breaux (D-La.) and Ben Nelson (D-Neb.) said in interviews last week they would almost definitely vote for Pickering when his nomination hits the floor. Breaux echoed the line of thinking that Republicans have been using in their appeals to Democrats, that Pickering’s opponents don’t understand the racial tensions of the Deep South in the 1960s. “I have an appreciation for what it was like,” Breaux said, indicating he thought Pickering’s actions were closer to “acts of courage” than revelations of racial insensitivity.

Sen. Trent Lott (R-Miss.), a close friend of the judge’s for more than 30 years, said he believes Southern Democrats are more able to understand Pickering’s actions and are more likely to support him. “There’s a little bit of a regional aspect to it,” Lott said.

Led by a coalition of left-leaning activists, Pickering’s opponents have painted a portrait of the judge as someone who was too close to segregationists in the late 1960s and early 1970s and who, once he became a U.S. District Court judge in the early 1990s, gave a lenient sentence to a convicted cross burner.

The Democratic leadership has not taken an official position as to whether it would support a Pickering filibuster, but Democrats have sustained three other judicial filibusters this year. Pickering’s renomination, after last year’s bitter nomination rejection, was viewed by Judiciary Democrats as a poke in the eye from Bush, which prompted Sen. Charles Schumer (D-N.Y.) to vow a filibuster. Last week Schumer, a leading Pickering antagonist on Judiciary, said he expected a filibuster and that he’d seen no real slippage in the opposition to the judge.

In a Judiciary meeting last Thursday, Sen. Patrick Leahy (D-Vt.), ranking member, linked Pickering’s renomination to Lott’s fall from leadership last December after the late Sen. Strom Thurmond’s (R-S.C.) 100th birthday party, accusing Bush of violating centuries of precedent regarding the Senate’s role of advice and consent.

“Never in the history of this republic has a president renominated to the same post a judicial nominee voted down by this committee — never until this administration chose to renominate Judge Pickering and Justice Owen,” Leahy said, alluding to Texas Supreme Court Justice Priscilla Owen. Owen was also rejected last year for a seat on the 5th Circuit and is currently being filibustered on the floor by Democrats.

Pickering’s son and other supporters have countered that he actually testified against members of the Ku Klux Klan in the late 1960s and that, in the cross-burning case, was angered with federal prosecutors who had given lenient plea-bargain deals to the main culprits of the crime and were going light on the individual least involved.

Despite the mountain of media attention given to the nomination, at least six Senate Democrats said last week that they were undecided on Pickering or hadn’t heard enough about the judge to take a position.

With 55 Senators publicly in his corner — the 51 Republicans, plus Miller, Jeffords, Breaux and Ben Nelson — Pickering will need to win over five of the six undecided votes, five of whom hail from the South.

One, Sen. Fritz Hollings (D-S.C.), indicated in February 2001 that he would vote for confirmation if it made it out of Judiciary. Calling the allegations against Pickering a thing of the past, Hollings said 19 months ago: “I’ll still vote for him. They haven’t brought up anything recent. On the contrary, I think he’s a fine judge.”

But Hollings said last week he was now considering voting against Pickering.

Sens. Bill Nelson (Fla.), Mary Landrieu (La.), Blanche Lincoln (Ark.) and Mark Pryor (Ark.) are all also undecided. Of those four, Landrieu sounded the most open to supporting Pickering.

“I’m at this point open to talking about it,” said Landrieu, who met with Rep. Pickering about the nomination.

Lincoln gave no indication at all which way she was leaning. “I have not yet made up my mind, not yet made a decision,” she said.

Sen. Byron Dorgan (D-N.D.) also said he is undecided on the matter, saying he hadn’t reviewed the merits of the nomination, making him one of the rare non-Southerners who could be targeted by Republicans in the race to confirm Pickering.

With the Senate taking a weeklong recess after next week, the Pickering battle isn’t likely to erupt on the floor until the third or fourth week of October. At that time Republicans also plan to bring up the circuit court nomination of California Judge Carolyn Kuhl, a likely target of a Democratic filibuster.

Kuhl was set for a vote Aug. 1, the last day before the August recess, but Republicans cancelled the vote. Having the Kuhl vote in late October — a couple weeks after the state’s bitter gubernatorial recall election — will give Republicans a greater chance to garner media attention at the likely Democratic filibuster of Kuhl.