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Judge Pickering’S Revenge
The judicial-confirmation battle has already hurt Democrats.


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Last week, Senate Democrats effectively defeated the nomination of Charles Pickering to the Fifth Circuit Court of Appeals through abuse of the filibuster. No doubt liberal ringleaders against the judge–Sens. Ted Kennedy (D., Mass.), Patrick Leahy (D., Vt.), and Chuck Schumer (D., N.Y.)–were pleased to add another Bush nominee’s scalp to their collection, but with Tuesday night’s Republican victory in the Mississippi gubernatorial race, as well as vulnerable Senate seats across the south and midwest in 2004, it may be Pickering who ultimately has the last laugh.

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The Pickering saga began almost three years ago when Bush first nominated the long-time Mississippi district-court jurist to the Fifth Circuit. Pickering’s nomination arrived at the Senate just as Democrats were restored to majority power by the defection of Sen. Jim Jeffords (I., Vt.) from Republican ranks. Eager to flex their muscles against the Bush White House, Democrats and their liberal allies from the New York-Hollywood axis opted for a strategy of hardball opposition, and settled on Pickering as their ideal target. Southern, white, middle-aged, conservative, and religious–he had been president of the Southern Baptist Convention during the 1980s–Pickering seemed the ideal nominee for a good, old-fashioned borking.

The only problem was, contrary to the stereotypes, Pickering had a long record in the new south as a racial reconciler and friend to African Americans. He had stood up to the Ku Klux Klan in Mississippi during the 1960s. He has sent his kids to the desegregated public schools. And he was supported by numerous Democratic officials and African-American leaders in his state.

But that did not dissuade the liberal attack machine. In Pickering’s record, they found an instance in which he had written to the Department of Justice disparaging its decision to harshly penalize a young man white man for cross-burning. In truth, Pickering’s criticism was over the disparity between the one man’s sentence and another man involved who got a far lighter sentence though he had instigated the crime. But it was enough.

People for the American Way, the Leadership Conference on Civil Rights, the NAACP, and dozens of other left-wing grievance groups jumped on Pickering’s nomination with both feet, charging “racial insensitivity.” Democrats in the Senate followed suit, and, after a long and brutal campaign, Pickering was defeated in committee on a party-line vote, 10-9, in March 2002.

While Democrats had won the battle, Republicans were intent to win the war, especially in the south, where Pickering is well-known and highly regarded. In a region where “racist” is a deeply meaningful and serious charge, many were outraged by its casual use by Democrats and the elite media to smear a man of Charles Pickering’s standing. Some saw the accusation as Yankee shorthand for Mississippian, religious, and conservative, and regarded the Left’s tone and tactics as a sign of what the national Democratic party really thought of them.

The GOP strategy of raising the judicial issue succeeded unambiguously. Senate Republican polling indicates that the 2002 fight over Pickering brought judicial nominations into the top three factors in the Democrats negatives, helping drive those negatives to historical highs. The judicial debate has remained among the top three negatives every month since, except for the month of the Iraq War, when Democrat war opposition bumped it to fourth. The same polling indicates that in close-fought Senate contests in November 2002 in Georgia (Saxby Chambliss), Missouri (Jim talent), and Minnesota (Norm Coleman), the “Pickering factor” helped motivate Republican base voters as well as swing moderates into the GOP column, thereby returning the Senate majority to Republicans.

Coleman, an extremely savvy campaigner who beat a former Democratic vice president in a generally liberal state, knew what he was doing when he focused voters’ attention during his one televised debate opposite Walter Mondale:

“And let me just finish on the judicial appointment’s question, and I’ll use Judge Pickering, one of the president’s nominees, who is supported by the Democratic Attorney General Moore of his state, who is supported by the Democratic-elected officials of his state, who is supported by the local NAACP of the city in which he lived. But because of the same tone that the vice president is expressing here, and is defending here, and the characterizations of right and left, in the end, you had a man supported by those who knew him, who were Democrats in a bipartisan way, supported by the Bar Association, and it didn’t get through. And we’ve got to change that tone in Washington. It’s not good for America, and it’s certainly not good for Minnesota.”

Coleman readily asserts that judicial confirmations in general, and the treatment of Pickering in particular, helped him win his seat.

Even in states where Pickering’s nomination was not the explicit issue, the battle over his nomination helped set off a wave of outrage over Democratic attacks on judicial nominations. Sen. Wayne Allard (R., Col.) says that when he reached out to Hispanics in his state, he talked about just two issues: tax cuts and the blockage of court nominee Miguel Estrada. On Election Day his percentage among Latinos had improved by 25 percent, contributing significantly to the tight margin of victory.

Similarly, in Texas John Cornyn faced an uphill battle against a charismatic African-American, Ron Kirk. It wasn’t until Cornyn began running ads pointing out that Kirk would side with national Democrats to block nominee Priscilla Owen that Cornyn took the lead.

After the 2002 elections, with a new GOP majority in the Senate, the President resubmitted Charles Pickering’s nomination to the Senate for reconsideration. After months awaiting consideration, he was finally voted out of the Judiciary Committee on October 2, 2003 and went to the Senate floor last Thursday. There Democrats decided rather than give him a fair floor vote, they would block him by filibuster.

Running for governor in Mississippi, Republican gubernatorial candidate Haley Barbour, no political novice, immediately seized the Pickering issue to bash his opponent, incumbent Ronnie Musgrove. Though Musgrove–like all state-wide elected Democrats–endorsed Pickering and called for his confirmation, Barbour was quick to jump on the issue and link his opponent to national Democrats:

“They [Senate Democrats] have one thing against Charles Pickering, and this is the story of the Democratic Party today,” Barbour said. “Charles Pickering is being filibustered because he is a conservative, pro-life, Republican, Christian. . . . We need a governor who has influence with his national party. . . . His support for Judge Pickering didn’t sway any of their votes.” Barbour won, even while the state of Kentucky elected its first Republican governor in 53 years.

Now, with new gubernatorial victories in southern states over long-time entrenched Democrats–to say nothing of Sen. Zell Miller’s (D., Ga.) scathing new book, A National Party No More–Democrats should be wondering why rural voters, especially in the south, are turning them out of power. With open or vulnerable seats next November in North Carolina, South Carolina, Georgia, Louisiana, Arkansas, Florida, North Dakota, Nevada, and South Dakota, Senate Democrats may end up regretting their treatment of Charles Pickering after all.

Sean Rushton is executive director of the Committee for Justice.



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