President Bush is preparing to re-fight one, and perhaps two, of the most-contentious judicial-confirmation battles of the last year, according to sources both in the administration and on Capitol Hill. In response, Democrats are preparing to use the controversy over former Senate Majority Leader Trent Lott to again accuse a Bush nominee of “racial insensitivity.”
This week the White House will renominate the judicial candidates who were selected in the president’s first two years in office but whose nominations were not acted on by the Senate. Most of those will be routine, but sources say the White House will renominate Priscilla Owen to a place on the Fifth Circuit Court of Appeals and is also likely to renominate Charles Pickering to a place on the same court.
Both the Owen and Pickering nominations were killed in 2002 by Democrats who at the time controlled the Senate Judiciary Committee. Both were defeated by straight party-line votes. Now, with the Senate in Republican hands, the nominations, if resubmitted, would likely be approved by the committee and sent to the full Senate for votes.
“I suspect [the White House will renominate] Owen for sure, and Pickering, I believe they will,” incoming Judiciary Committee chairman Orrin Hatch told National Review Online Friday. “But the Lott thing has clouded that.”
Hatch was referring to widely expected Democratic efforts to use the controversy over Lott’s remarks about Strom Thurmond’s Dixiecrat presidential race against Pickering, a U.S. District Court judge in Mississippi who is a close friend of Lott. During the Pickering fight, Democrats focused on a decision Pickering made in a 1994 cross-burning case. (See “Behind the Democrats’ Attack.”). In that crime, a group of white men set fire to a cross in the front yard of a mixed-race couple in southern Mississippi. The Clinton Justice Department gave a no-jail plea bargain to one man, while another faced significant time in prison. Pickering discovered that the man who had been let off was in fact the ringleader of the crime — he had a history of racial animus and had actually fired a shot into the couple’s home on another occasion — while the man who faced jail time, while clearly guilty of taking part in the cross burning, was not the leader and had no history of racially-motivated acts. Pickering believed the case represented a problem of disparate sentencing and complained to Justice Department officials. In the end, the man served a shorter time in prison than the Justice Department originally wanted. The ringleader, by virtue of his deal with the Justice Department — the deal that angered Pickering — remained free.
At the time of his nomination, Democrats cited the case in an attempt to portray Pickering as going easy on a cross burner. Now, with his renomination in the works — and with the Lott controversy fresh in mind — they are doing it again. In a December 17 letter to President Bush, New York Democrat Charles Schumer wrote, “As I said when I voted against Judge Pickering, I do not believe the man is a racist. But especially given the troubled history of race in America, his conduct in the cross burning case was astonishing. I struggle to understand how this White House could support a nominee who showed such awful judgment and gross insensitivity in such a sensitive matter.”
“Obviously, these circumstances were troubling when the committee first considered Judge Pickering,” Schumer continued. “Given Senator Lott’s recent remarks, they are even more troubling now. When Judge Pickering engaged in extra-legal maneuvering and improperly intervened to reduce the sentence of a convicted cross-burner, he displayed the same insensitivity found in Senator Lott’s remarks. That alone should disqualify Judge Pickering from being promoted to the Fifth Circuit.”
It does not take a crystal ball to see that the entire Pickering confirmation battle will be re-fought if the White House chooses to renominate him. That is one reason some sources believe that, while the White House will ultimately renominate Pickering, it will not do so immediately but rather wait a few weeks or even months. “I think right now the fire is still hot,” says one Republican. “He was clearly Lott’s pick, and if the administration is smart and going to send Pickering over, they would wait a few months.”
One key issue is whether there will be another hearing for Pickering. He received two hearings before being voted down by Democrats on March 14, 2002. If he is renominated, it is not clear whether there will be yet another hearing.
“I would like to avoid further hearings,” says Senator Hatch, although he believes Democrats will insist on another session. The decision is the chairman’s to make, and while he does not want another hearing, Hatch is acutely aware of Republicans’ slim margin of power on the committee — and the Democrats’ remaining clout. An agreement between Hatch and outgoing chairman Patrick Leahy ensures that both sides will have equal funding, and Republicans, like Democrats before them, will have a one-vote majority. “If you want to get people through,” Hatch says, “you’ve got to ruffle as few feathers as you can, especially on a committee like Judiciary.”
Finally, a renomination of either Pickering, Owen, or both could raise institutional conflicts between the Senate and the White House. Party considerations aside, both nominations were killed by the Senate Judiciary Committee, which not only voted them down but also voted against sending them to the full Senate with a neutral or a negative recommendation. The body designated by the Senate to deal with nominations made a clear decision.
In a statement given to NRO, Leahy spokesman David Carle said, “Senator Leahy has said that the President has the right to nominate anyone he wants to nominate and that it is up to the President to decide whether to renominate Judge Pickering and Judge Owen. If that happens, it then would raise institutional issues that the Senate itself would have to resolve.”
Hatch says he sees no problem with the renominations. “Not at all,” he says. “The Constitution says the Senate shall confirm, not the Senate Judiciary Committee.” Nominees who were defeated in committee on straight party-line votes, Hatch explains, should receive a chance for a vote in the full Senate. If that happens, Hatch believes both Pickering and Owen would be confirmed. “I think they should be,” Hatch says. “But you never know.”