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National | COURTS: President Bush fought back against filibustering Democrats by granting Charles Pickering a recess appointment, but it will take solid Republican Senate gains in November to win the battle for the judiciary

Issue: "Iraq: The other caucuses," Jan. 31, 2004

AFTER TWO AND A HALF YEARS of waiting by the phone, Charles Pickering finally received the call he'd been waiting for. It wasn't the Senate Majority Leader calling to say his nomination to the 5th Circuit Court of Appeals had been approved. That was the call Mr. Pickering would have preferred. Instead, it was the White House on the line. In light of the stonewalling by Senate Democrats, would he be willing to accept a temporary recess appointment?

It wasn't an easy question. To accept the fleeting promotion, he would have to give up his lifetime tenure as a district court judge, and doing so would only anger the very senators he needed to win over for a more permanent appointment.

Still, on Jan. 16, after praying with family and friends, Mr. Pickering said yes. He was sworn in that same evening in Jackson, Miss., then immediately began reading up on cases pending before the 5th Circuit. Time, after all, was of the essence: Like Cinderella at the ball, Mr. Pickering's new identity came with a strict deadline. Unless the full Senate votes to confirm him, his appointment will expire when a new Congress convenes in January 2005.

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Conservative activists cheered President Bush for finally bypassing a Senate cabal that has filibustered six nominations to the federal bench. "This is a bold and necessary move by President Bush," said Tony Perkins, president of the Family Research Council. "Left-wing groups and their allies on the Senate Judiciary Committee have worked overtime these past three years to besmirch the character and record of Mr. Pickering. Charles Pickering is exactly the type of judge this country needs on our federal bench."

Liberals, on the other hand, waxed indignant. "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," said Sen. Edward Kennedy (D-Mass.). "It serves only to emphasize again this administration's shameful opposition to civil rights."

Some black leaders, however, took exception to a white senator speaking for "every African-American."

"Over the years, once this nomination was proposed, I have heard things about my friend that surprised me," Henry Wingate, Mississippi's only black federal judge, said during Mr. Pickering's swearing-in ceremony. "I have heard that he is a racist; that's not the Charles Pickering I know. I've heard that he's antagonistic toward African-Americans, and that's not the Charles Pickering I have grown to know."

Similar statements from prominent black Mississippians did little to sway Senate Democrats who blocked Mr. Pickering for his alleged racist and right-wing views. By filibustering his nomination-along with five other Bush appointments to the federal bench-they prevented an up-or-down vote by the entire Senate for more than two years. With little hope for a breakthrough, the White House opted for the politically risky recess appointment.

How that affects the four remaining filibuster victims-William Pryor, Priscilla Owen, Carolyn Kuhl, and Janice Rogers Brown-remains to be seen. Knowing that it would further alienate the Democrats, President Bush would hardly have made the recess appointment if he thought there were a realistic chance for movement on his other nominees.

As for Mr. Pickering, though he said publicly that he would continue to fight for a permanent spot on the bench, some Senate Republicans seemed to suggest that the temporary promotion might be the best he could hope for. "Judge Pickering has a long and distinguished career," said Sen. John Kyl (R-Ariz.). Serving for a year on the 5th Circuit "would be a wonderful capstone for his career if he is not made permanent."

Like the other nominees waiting in limbo, Mr. Pickering's best opportunity for a long tenure lies with the voters in November. A GOP gain of a half-dozen Senate seats would likely be enough to break the filibuster and extend the one-year limit on his appointment.


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