Bypassing Congress, Bush taps Pickering

WASHINGTON-President Bush bypassed Congress yesterday and appointed Mississippi judge Charles W. Pickering Sr. to a federal appeals court seat, defying Senate Democrats who had been blocking his nomination on grounds that he is too conservative.

The move escalated to new election year heights the partisan battle over the president's judicial picks.


Bush seated Pickering, who suffered a bruising two-year confirmation battle, in a so-called recess appointment, which will allow him to serve until a new Congress convenes next January. Pickering, 66, will sit on the 5th Circuit Court of Appeals in New Orleans, which serves Louisiana, Mississippi and Texas.

The move, which came four days before Congress returns from its holiday recess and Bush's annual State of the Union address, seemed calculated to dramatize the bitter deadlock between the two parties over federal judges.


Democrats are filibustering a handful of Bush's judicial nominees, whom they call ultra-conservative and outside the legal mainstream. The president's unusual - though not unprecedented - action yesterday signaled that he is ready to pick high-profile fights this year with Democrats on judicial appointments.

"A minority of Democratic senators has been using unprecedented obstructionist tactics to prevent [Pickering] and other qualified individuals from receiving up-or-down votes," Bush said in a statement. "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."

"I'm grateful to the president for his continued confidence and support," Pickering, a federal trial judge for 13 years, told the Associated Press from Mississippi. "I look forward to serving on the 5th Circuit." He was sworn in last evening at the U.S. District Courthouse in Jackson, Miss.

Sen. Charles E. Schumer of New York, one of the most outspoken Democratic critics of Bush's judgeship choices, called yesterday's move "a finger in the eye to all those seeking fairness and bipartisanship in the judicial nominations process."

Other Democrats strongly denounced Bush's action as a polarizing move and accused Pickering - as they did throughout his confirmation fight - of being racially intolerant.

Rep. Elijah E. Cummings, the Baltimore Democrat who leads the Congressional Black Caucus, called Bush's move "misguided" and said it "shows his utter disdain for civil rights."

Republicans, for their part, defended Pickering and praised Bush for his slap at Democrats.

"Charles Pickering is an extremely well-qualified candidate who was treated unfairly. The president's action today is the proper response to unprecedented obstructionism by Senate Democrats," said Sen. Bill Frist of Tennessee, the majority leader.


Under the Constitution, presidential nominees, including those for the federal judiciary, must be confirmed by a Senate majority. But, in an exception that dates to the 18th century, when Congress met for only a few months a year, the president may act on his own to fill vacancies that arise during congressional recesses.

The last time a president circumvented Congress during a recess to install a federal appeals court judge was in 2000, when Bill Clinton appointed Roger L. Gregory of Virginia, an African-American judge, to the Richmond-based 4th Circuit, which covers Maryland, Virginia, West Virginia and the Carolinas.

Clinton took the action after then-GOP Sen. Jesse Helms of North Carolina blocked three previous black nominees for the seat. Later, after Bush took office and after negotiations between Republicans and Democrats, the president re-nominated and the Senate overwhelmingly confirmed Gregory.

During his confirmation fight, Democrats accused Pickering of being racially insensitive, pointing to his intervention in 1994 in a cross-burning case, in which he lobbied a prosecutor to seek a more lenient sentence for the defendant, who Pickering argued was less culpable than his accomplices and who received lighter punishment.

Civil rights groups said he supported segregation as a young man in Mississippi and opposed abortion rights. Republicans deny the charges of racial intolerance and say he has been a good judge and a friend to African-Americans in a racially divided state.

Pickering's problems on Capitol Hill deepened in late 2002 when one of his strongest champions, then-Majority Leader Trent Lott, was forced to give up his post amid a racially charged furor over his praise for retiring (and now deceased) Sen. Strom Thurmond of South Carolina. Lott, Pickering's fellow Mississippian, said the nation would have been better off with the election of Thurmond, who ran for president in 1948 on a pro-segregation platform.


But Bush has continued to push for Pickering's confirmation. Yesterday, the president called Pickering "highly qualified to serve on the court of appeals" and said he "has widespread bipartisan support from those who know him best."

That steadfast support and yesterday's defiant act are part of an continuing effort by Bush to prove his conservative mettle to hard-core Republican base voters, said scholars of the judicial nominations process.

"This is very much an in-your-face gesture by the president. ... This is red meat for his base," said Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst. Bush "can say, 'I delivered, and I'm not going to let these Democrats malign a good and decent man who shares my values and your values.'"

Aside from Pickering, Democrats have used procedural tactics to block five other federal appeals court nominees since the start of this Congress, including Miguel A. Estrada, an attorney who withdrew his name last year after a long confirmation fight. They are also blocking judges Janice Rogers Brown and Carolyn B. Kuhl, both of California; Texas judge Priscilla R. Owen; and Alabama Attorney General William J. Pryor Jr.

Democrats think they can reap their own election year advantage from standing firm against judges who they claim oppose abortion and civil rights.

"The president's recess appointment of this anti-civil rights judge the day after laying a wreath on the grave of Martin Luther King is an insult to Dr. King, an insult to every African-American, and an insult to all Americans who share Dr. King's great goals," Sen. Edward M. Kennedy, a Massachusetts Democrat, said yesterday. "It serves only to emphasize again this administration's shameful opposition to civil rights."