Long-Embattled Judge Pickering Retires

Posted December 9, 2004 at 12:06pm

Ending a nearly four-year quest that inflamed racial tensions in the South, Judge Charles Pickering retired today outside the federal courthouse in Hattiesburg, Miss.

Pickering, who was confirmed to a U.S. District judgeship in the first Bush administration, was first nominated to the 5th U.S. Circuit Court of Appeals in May 2001, but his nomination was derailed by intense opposition by many Democrats.

Subsequently, President Bush put Pickering on the appellate bench using a controversial recess appointment. It is the expiration of that appointment that led to Pickering’s retirement today.

Pickering issued a scathing statement indicting Senate Democratic leadership for filibustering nominees for federal judgeships. He warned Democrats that their opposition to Republican judicial nominees will help seal their fate as a minority party for the foreseeable future.

“The recent election demonstrated that the American people rejected this unprecedented obstruction by the minority Senate leadership,” Pickering said. “Those voices will continue to be heard until the confirmation process is reformed and judicial filibusters ended.”

He pledged to stay active in public life and also hinted that he would push to lead the fight outside the Senate for reforming the process of nominating judges. “I feel I can be a constructive voice in this vitally important debate,” he said.

Pickering appeared to be on a glide path to confirmation until his hearing before the Judiciary Committee — a bizarre event in its own right, held in the Appropriations Committee office in the Capitol on the day in October 2001 when the Senate stayed open as the House closed because of the anthrax attacks.

Newly empowered in the majority because of the defection of Sen. Jim Jeffords (I-Vt.), Judiciary Democrats demanded a second hearing on Pickering because they said they didn’t have enough information on his rulings.

At the second hearing, in February 2002, Democrats pounced on a series of allegations relating to racial insensitivity by Pickering, focusing on a case from the early 1990s when Pickering pushed federal prosecutors to reduce the sentence of a cross burner in Mississippi.

Armed with that case, Democrats and their liberal allies pilloried Pickering for months and ultimately rejected his nomination on a party-line vote. With little support from the White House, which was almost entirely focused on the war on terror, Pickering’s nomination had only two real defenders in the early stages: his son, Rep. Chip Pickering (R-Miss.), and Sen. Trent Lott (R-Miss.), the judge’s longtime friend who was Minority Leader at the time.

Fighting for his father’s reputation, Rep. Pickering met personally with Senators to lay out the case in favor of his father, most often explaining the cross-burning case — the “Swann” case — and how Pickering was angry that federal prosecutors cut a deal with the ring-leader and were instead pushing a much stiffer sentence for someone who was more an accomplice than a leader.

The nomination fight became even more divisive when it became linked to the redistricting battle in Mississippi in 2001 and 2002. Both sides accused the other of trying to have its supporters secretly craft a deal to line up crucial home-state support for the nomination from Mississippi’s black leaders if Rep. Pickering were to bow out of the Member-versus-Member battle with then-Rep. Ronnie Shows (D-Miss.).

Whether or not these allegations were ever true, the Pickering family took them seriously and in private conversations with Judiciary Chairman Orrin Hatch (R-Utah), the judge broke down crying, sources said. Rep. Pickering eventually demolished Shows in the 2002 race.

While the nomination died for the time being, Pickering’s battle soon became a rallying cry for conservative activists, particularly in the South. Later that fall, Senate candidates throughout Dixie cited Pickering’s failed nomination and were met with huge ovations.

The Pickering nomination battle was also a seminal event in conservative circles because it prompted the GOP to begin using its message machine to blast liberal groups who were opposed to the nomination. Soon after Pickering’s defeat in the Judiciary Committee, a lightly regulated “527” organization known as the Committee for Justice was formed to raise money and air ads on behalf of nominees in targeted states against Senate Democrats.

Many observers assumed that Pickering’s chances of elevation to the 5th Circuit ended when his prime champion, Lott, found himself in a racial firestorm of his own two years ago. Lott was forced to resign his leadership post after making what critics saw as an insensitive joke about Mississippi’s support for the late Sen. Strom Thurmond’s (R-S.C.) segregationist presidential campaign in 1948.

But Bush renominated Pickering in early January 2003 once the Republicans took back control of the Senate. Democrats, however, refused to yield, filibustering Pickering’s nomination and accusing Bush of using Pickering’s nomination for purely political purposes.

If given a straight up-or-down vote, Pickering would have won confirmation with about 55 votes, with all 51 Senate Republicans in his corner as well as at least four Democrats: John Breaux (La.), Zell Miller (Ga.), Ben Nelson (Neb.) and Jeffords. Pickering thanked that quartet in his retirement announcement.

“I have fought this battle for four years and I think for me and my family, the time is right to move on,” Judge Pickering said. “President Bush can now nominate someone younger who will be able to serve longer.”