In a statement Wednesday, New York Democratic Senator Charles Schumer charged the renomination of Judge Charles Pickering to the Fifth Circuit Court of Appeals is part of a Bush administration plan to destroy “basic civil rights” in America. “For years, the federal courts served as the shield protecting basic civil rights in this country,” Schumer said. “This administration wants the courts to become the sword that destroys those rights.”
”And don’t think this stops with Judge Pickering,” Schumer added. “He’s just the tip of the iceberg.” Setting the stage for a Senate-wide fight, Schumer said he is “prepared to do everything I can to stop the nomination from going forward” — including a filibuster.
Pickering, a U.S. District Court judge in Mississippi, was defeated in a straight party-line vote last March by the then-Democratic-controlled Senate Judiciary Committee. Democrats alleged that Pickering had displayed “glaring racial insensitivity” in his decisions, particularly one in which he reduced the sentence of a man convicted in a 1994 cross burning. Now, with Republicans in control of the Senate, the White House has renominated Pickering.
That led to renewed Democratic attacks. “Why anyone would go the whole nine yards and then some to get a lighter sentence for a convicted cross burner is beyond me,” Schumer said Wednesday. “Why anyone would do that — in 1994 and in a state with Mississippi’s history — is simply mind-boggling.” (Contrary to Schumer’s assertions, the facts of the cross-burning case appear to support Pickering’s actions. See here.)
At a news conference Wednesday, Schumer admitted there is little Democrats can do to stop Pickering in the Senate Judiciary Committee, where Republicans will enjoy a 10 to 9 majority. But he predicted a strong filibuster effort in the full Senate. “I think there is wide support in our caucus to do this,” he said.
But there are serious doubts about whether a Democratic filibuster would be successful. Schumer’s news conference was attended by just one other senator, Dick Durbin of Illinois. Beyond that, only Massachusetts’s Edward Kennedy has publicly supported a filibuster. To succeed, Schumer would have to persuade 40 other senators to side with him against allowing a full-Senate vote on the Pickering nomination.
There is little evidence he will be able to do that. First, such a maneuver has not been successful in more than three decades (and then in a Supreme Court case). Second, a successful filibuster would guarantee serious and possibly long-term reprisals from the GOP. And third, many observers believe the judicial issue helped Republicans win some key Senate elections last November and that the Democratic leadership would be hesitant to make a historic stand on an issue that could conceivably cost them in 2004. “To some degree our success in the election nationalized this issue,” says one Republican. “Do Democrats still see that as a winning issue for them?”
So it seems likely that in the end, Pickering will be confirmed. Still, some Republicans were surprised by the president’s decision to renominate the Mississippi judge, especially in light of the fallout from the controversy over former Senate Majority Leader Trent Lott, who was removed by Republicans after his statement praising former Sen. Strom Thurmond’s 1948 Dixiecrat campaign for president. Leading Democrats saw the incident as an opportunity to charge that Lott’s comments reflected a pervasive racism at the core of the Republican party. Now the Pickering renomination gives them a chance to renew the attack. Sure enough, at their news conference Wednesday, Schumer and Durbin did just that.
Some Republicans believed that the White House should not have renominated Pickering so quickly, that the president should have waited until the Lott issue cooled. “I don’t think it was smart to do it this soon,” says one. “At some point you have to lay low.” But others cheered the president’s decision. “It’s a good thing,” says one. “We shouldn’t shy away from [Pickering's] background.”
In a sense, the White House had little choice. In campaign appearances last year, the president vouched for Pickering’s character and ability. “I named two good judges, one from Mississippi and one from my home state of Texas — Charles Pickering, Priscilla Owen,” he told the National Republican Senatorial Committee last September. “It is not right that these two fine, fine people were denied the bench.” Last August, at a fundraiser for Pickering’s son, Rep. Chip Pickering, Bush said, “I put up a good man named Judge Pickering for a higher court….The Senate did wrong by Judge Pickering. I did right by naming him to the bench.” And last March, shortly after Pickering’s defeat, speaking at a Saxby Chambliss for Senate dinner in Atlanta, the president called Pickering “a good man from Mississippi.” He praised Georgia Democratic Sen. Zell Miller for having “stood up and defended the honor and integrity of Judge Pickering.”
Having said all that, how could Bush not renominate Pickering? Bush had bestowed his “good man” stamp of approval on Pickering, and to withdraw it in light of the Lott affair would have seemed a baldly political calculation. It would also have sent a message to Democrats that their attacks worked — thus encouraging more.
So now, the Pickering battle has resumed. Unlike last year, Republicans appear to have the winning advantage. But there will still be a terrible fight, if Charles Schumer has anything to say about it.