Keep This One Off the Court

By picking extreme judicial candidates, President Bush has forced Senate Democrats to swallow hard and back nominees they don’t like or filibuster them. Senators have already done a lot of swallowing, confirming 164 of the administration’s 200 nominees. These men and women occupy 19% of the seats on federal trial and appellate courts and all hold lifetime appointments.

Still, Democrats have drawn the line on three hard-right nominees, filibustering and blocking a vote on their confirmations. By narrowly approving U.S. District Judge Charles W. Pickering Sr. of Mississippi last week for a 5th Circuit Court of Appeals seat, the Senate Judiciary Committee has all but ensured that Democrats will add his name to the list.

Pickering is an unacceptable choice for the nation’s second-highest court. As a law student, he argued for changes in Mississippi’s anti-miscegenation law that would have strengthened the interracial marriage ban. As a state legislator, he co-sponsored a resolution calling on Congress to repeal part of the Voting Rights Act and backed a federal amendment banning abortion. His judicial record displays strong hostility to the claims of minorities and workers. He has made some disturbing ethical calls. After a jury in 1994 convicted a man of burning a cross on the lawn of a mixed-race couple, Pickering, who presided over the trial, privately lobbied prosecutors and Justice Department officials to reduce the defendant’s sentence.

These are among the reasons the Democratic-led Judiciary Committee narrowly rejected him in March 2002. But rather than concede that the Mississippian is far too polarizing, Bush renominated him this year when Republicans took control of Congress.

Should Democrats filibuster against Pickering, as seems likely, Republicans probably will call them obstructionists and accuse them of playing politics with the courts. But the record shows that the Senate has moved Bush nominees faster and confirmed more of them than at this point in Clinton’s presidency. Late last month, the Judiciary Committee unanimously approved three Californians and days later, the full Senate, also unanimously, confirmed one of them, San Francisco Superior Court Judge Carlos T. Bea, to the 9th Circuit Court of Appeals.

Though filibusters against judicial candidates hold little appeal, the Bush administration’s stubborn advocacy of unpalatables like Pickering makes it a senatorial option of last resort. Having won approval for many of its choices, the White House would be judicious to accept constitutional wisdom and take some Senate advice: Give up this bad nominee.