Pickering a new fight

A defiant Bush renominates two judicial nominees recently rejected by the Senate -- including a Mississippi judge who shares Trent Lott's racial views and a Texas justice so stridently anti-abortion the current White House counsel once blasted her.

Published January 9, 2003 11:42PM (EST)

With the Trent Lott scandal just a few weeks old, you might have expected President Bush to be particularly wary of Southern conservatives with egregious records on race. But that didn't stop him from renominating Charles Pickering -- whose friend, Lott, first supported him for the judgeship -- to the 5th Circuit Court of Appeals, the second-highest rung of courts in the country.

Pickering, you might remember, was rejected by the Senate Judiciary Committee in a party-line vote last March amid mounting outrage over his record on civil rights. As a college law student in 1959, Pickering published an article in the Mississippi Law Journal about ways to protect Mississippi's anti-miscegenation laws. As a state senator in the 1970s, he called for a repeal of the Voting Rights Act. And in 1994, he intervened from the bench to help Daniel Swan, a man convicted of burning a cross on an interracial couple's lawn, get a lighter sentence than was legally mandated, even calling a friend in the Justice Department on Swan's behalf. His nomination was vigorously opposed by the Congressional Black Caucus, the NAACP, the Mississippi NAACP and the Magnolia Bar Association, an organization of African-American lawyers in Mississippi.

They thought they'd beat him, but he's back. "I'm astounded," says Hillary Shelton, director of the NAACP's Washington bureau. "It's outrageous that the administration would renominate someone who has the same values on race relations as Trent Lott." Lanier Avant, spokesman for Rep. Bennie Thomspon, D-Miss., a member of the Congressional Black Caucus, said, "It really flies in the face of everything President Bush said condemning Senator Lott and his stance on race."

Of course, no one should be shocked that Bush is taking advantage of the Republican control of the Senate to push through right-wing judicial nominees rejected by Democrats. He promised as much while campaigning during the midterm elections. And at a press conference after the Republicans wrested back control of Senate in the November elections, Bush made a garbled statement pretty much saying he was going to renominate them. "We don't have to recommit them," he said. "They're there. Pickering and Owen are still there at the committee level. They just weren't ever -- their names were never let to the floor for a vote  But -- so I hope that Judiciary Committee will let their names out."

Still, after the Lott debacle, there was much speculation that Pickering would simply be too toxic to reintroduce to Congress.

"When Trent Lott made his statements about Strom Thurmond and George Bush denounced his statements and appeared briefly to embrace the cause of civil rights, I thought, at least that will be the end of Charles Pickering," says Kim Gandy, president of the National Organization for Women. "I thought surely another Mississippian with a background of racial insensitivity will not be a name that George Bush wants to have on the front page again."

But renominating Pickering was one campaign promise Bush decided to keep. Michael Gerhardt, a professor of law at William and Mary and the author of "The Federal Appointments Process: A Constitutional and Historical Analysis," says Bush spoke of his nominees at least 17 times while barnstorming in the South. True to his word, a quiet Tuesday evening press release announced the renomination of not just Pickering but also Priscilla Owen, the stridently antiabortion, pro-business Texas Supreme Court justice. Owen was so radical that her position on one abortion case was described by current White House counsel Al Gonzales, then her colleague, as an "unconscionable act of judicial activism." Because of her extremism, the Judiciary Committee rejected Owen last September for the same 5th Circuit Court bench for which they had rejected Pickering.

Owen's reappearance also has liberals outraged, but they're not surprised. Opposition to Owen was based largely on her antiabortion judicial activism. Bush has never missed an opportunity to push his antiabortion agenda, so even though scholars like Gerhardt say it's unusual for presidents to renominate rejected judges, his giving Owen a second chance is pretty much par for the course.

Pickering is a different story. "It's a fairly aggressive act from the president," says University of Chicago law professor Cass Sunstein. "Certainly in light of the outcry over Senator Lott's remarks, this is a politically hot nomination."

It's also one that inevitably brings the controversy over Lott back to the fore. "The renomination of Pickering is particularly striking because it's linked to Trent Lott. That makes it even more unusual," says Gerhardt. Democrats are trying hard to play up the association. Democratic National Committee chairman Terry McAuliffe released a statement yesterday saying, "The renomination of Charles W. Pickering to a lifetime appointment on the federal bench shows that when it comes to understanding the real concerns of all Americans, in particular African Americans, the President just doesn't get it  One line in one speech condemning Trent Lott's outrageous comments regarding civil rights doesn't mean that he has earned the trust of the African American community."

Opinions differ as to why Bush made such a volatile choice. Some suggest that he's trying to appease Southern conservatives angry over the resignation of Lott as Senate majority leader, relying on the "the time-tested methods they've used to mobilize their Southern base," says Avant.

After all, Bush has consistently used federal judgeships to repay the radical segments of his party. While publicly he says little about abortion to avoid alienating pro-choice moderates, virtually all of his judicial nominees (including Pickering) have been antiabortion, often passionately so, which pleases the Christian right enormously. Here, he could be doing the same thing with white Southern conservatives.

"For people in Mississippi and the South, this is a great thing that he's doing," says Gerhardt. "He's fortifying support in the South, and the South is a pivotal bloc for his reelection and the future of his party. Other people may not pay attention. People in Illinois may not care a great deal about some judge sitting on the 5th Circuit Court."

Others, though, interpret the move more as a show of power than as a shrewd political play. "It's not an act of statesmanship on the president's part," says Sunstein. "It has a little bit of a feel of 'gotcha' about it."

But Nan Aron, president of the Alliance for Justice, a coalition of liberal groups that has been a consistent critic of Pickering, is counting on the fact that public outrage could affect both nominations. Both Pickering and Owen -- assuming that they now sail through the Judiciary Committee -- will almost certainly face a full vote in the Senate, where moderate Republicans may want to distance themselves from a Lott-like taint. It's that hope that keeps Aron confident. "Pickering will be defeated," she says. "There will be political fallout for Democrats or Republicans who support him. I cannot imagine that Charles Pickering, who has resolutely stood against all the advances that people of color have made over the past few decades, would be confirmed."

Then again, a week ago, few could imagine he'd even be renominated. And the political finesse of the White House and strategist Karl Rove have been continually underestimated.

Still, Sunstein, a liberal who supported Bush nominee Michael McConnell, an antiabortion conservative who also had spotless legal credentials, thinks a bipartisan coalition against the recycled candidates is a distinct possibility. "It's entirely appropriate for moderates in Congress and even conservatives to join liberals and say we want intellectual diversity on the court, we don't want to freeze the federal judiciary in the mold of the right-wing elements of the Republican party," Sunstein says.

By Michelle Goldberg

Michelle Goldberg is a frequent contributor to Salon and the author of "Kingdom Coming: The Rise of Christian Nationalism" (WW Norton).

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