Cover Story

Pickled Pickering

Are those who forget history doomed to repeat it? As senators and their staffs prepare for warfare over judicial nominees, an exclusive inside look at what's likely in the fire next time

Issue: "Senate wars over judges," May 14, 2005

The moment political junkies have awaited all year is coming soon. When GOP leaders renew their push for the confirmation of Judge Priscilla Owen and Judge Janice Rogers Brown, two circuit court nominees already approved by the Senate Judiciary Committee, left-wing interest groups will have to decide how vigorously to wag the Democratic dog.

That they can wag the dog is evident in the treatment in 2001 of Charles Pickering, an early Bush nominee to the 5th Circuit Court of Appeals. Judge Pickering's resumé seemed impeccable-No. 1 in his law school class; successful lawyer; groundbreaking civil-rights and religious leader; bridge-building politician; respected district court judge.

Until mid-October of 2001 his confirmation seemed like a slam dunk, with a strongly positive review from the American Bar Association and apparent approval from Judiciary Committee chairman Sen. Patrick Leahy (D-Vt.).

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As Mr. Pickering stated in his private journal, which he has now made available to WORLD, the word from then-Senate Majority Leader Tom Daschle was that the Pickering nomination wasn't even on "their radar screen . . . no opposition." Sen. John Edwards (D-N.C.) "committed to vote" for him, and Sen. Charles Schumer (D-N.Y.) predicted confirmation "before Christmas" of 2001. "Consequently," the judge wrote, he was "naively telling folks that my nomination . . . was noncontroversial."

But he hadn't counted on symbolism: Even though Mr. Pickering was a civil-rights supporter and enjoyed great support from a spectrum of Mississippi's African-American leadership, he was from Mississippi and could be ID'd in four ways that made him suspect: white male pro-life Republican. He noted in his journal, "I think they profiled me and since my nomination came up sooner than others, they spent their energy on making an example of me."

On Oct. 15, 2001, three days before Mr. Pickering's scheduled Senate Judiciary Committee hearing, People for the American Way issued an "alert" to "call your senators" to oppose Mr. Pickering, noting the judge was "strongly supported by fellow Mississippi Republican, Sen. Trent Lott" and had served on the Republican Party Platform Committee in 1976 that opposed Roe v. Wade and the feminist-backed Equal Rights Amendment.

Other groups also made noises, and Mr. Leahy particularly heard from Nan Aron of the Alliance for Justice, the catch-all judicial lobby for leftist organizations including the National Organization for Women, the pro-abortion group NARAL, the National Center for Lesbian Rights, and others. Ms. Aron said that Mr. Pickering "represents just the first threat to turn back the clock on rights all Americans rightly enjoy," and warned that his views were similar to Supreme Court justices Antonin Scalia and Clarence Thomas.

Mr. Leahy had seen enough. Although the hearings were only two days off, he suddenly faxed a request to Mr. Pickering for a list of the judge's more than 4,500 opinions rendered over more than 10 years, with special attention to civil-rights and discrimination cases. The judge got his staff working, and he testified for two hours on Oct. 18, until Democratic senators closed that hearing with calls for a second hearing that was scheduled for February, allowing ample time for anti-Pickering forces to prepare their assault.

An example of that preparation became known outside the organized left on Dec. 6, 2001, when a coalition of

pro-abortion lobbyists met to discuss strategy for derailing judicial nominees. According to a memo obtained by WORLD, during a conference call hosted by the Ms. Foundation, Nan Aron, president of the Alliance for Justice, told her counterparts at other groups that the coming year was the "most important year in judicial nominations in decades. The Court[s] of Appeals are where we should all be focused, since there are no Supreme Court openings. They are the farm team for the Supreme Court."

The lobbyists agreed to squeeze liberal Democratic senators on Dec. 11 and 12. One conference caller predicted, "There will be a major fight in January" over the Pickering nomination: "We can win on that fight, but it will be nasty and contentious."

That it was, and Mr. Pickering later wrote in his journal, "I underestimated the groups that opposed my nomination. I think at first the Bush administration did likewise. I also think that all involved failed to understand the extent to which these groups were willing to go, their venom, vitriolic opposition, the fact that they were willing to go to the mat on nominees for the Court of Appeals."

The Friday before Christmas, 2001, Mr. Pickering sat with his mother as she died.

At 4:55 that afternoon, a fax from Mr. Leahy demanded that hundreds of unpublished Pickering opinions be gathered together ASAP. "It was just 15 minutes before the Christmas holidays would start," Mr. Pickering recalls. "I am convinced that their timing was intentional-to place as much psychological pressure on me as they could."


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