After months of struggle, first by Mississippi activists, then by national civil rights groups and finally by a handful of determined Democratic members of the U.S. Senate, the Senate Judiciary Committee on Thursday blocked the nomination of Mississippi Federal Judge Charles Pickering to serve on the powerful 5th Circuit Court of Appeals. The defeat of the nomination came as a vindication for groups such as the National Association for the Advancement of Colored People, the Leadership Conference on Civil Rights, the Alliance for Justice and People for the American Way, which were viciously attacked by rightwing organizations, publications and senators when they first suggested that Pickering should be rejected because of his ties to Mississippi segregationists of the 1960s, his hostility as a federal judge to the application of civil rights laws, and concerns about his ethics.
The committee’s rejection of the Pickering selection marks the first time that one of President Bush’s judicial nominees has been rejected by Senate Democrats, who may soon be called upon to weigh the merits of a Bush nominee for the Supreme Court. To the delight of activists concerned by the caution of Congressional Democrats when it comes to challenging the president, the hearing that preceded the Pickering vote saw Democrats flex legislative muscles rarely used in recent months.
Referring to the Constitutional provision that empowers the Senate to offer advice and consent as regards presidential nominations, Judiciary Committee chair Patrick Leahy, Democrat of Vermont, declared, “It’s advise and consent, it is not advise and rubber stamp.”
In remarks that came at the close of a long and contentious committee session that played out before a packed hearing room, Leahy calmly described Pickering as a conservative judicial activist who “repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights.” The judge’s record, he argued, did not justify promotion to a federal bench that is located just one rung below the U.S. Supreme Court.
Moments later, the committee voted 10-9 to reject the Pickering nomination. The breakdown was along partisan lines, with Democrats opposing the nomination and Republicans supporting it. The Democratic majority remained in place on two additional procedural votes, in which Republican Senator Arlen Specter, of Pennsylvania, sought to advance the Pickering nomination to the Senate floor without a recommendation or with a negative recommendation.
Republicans wanted a vote on the Pickering nomination by the full Senate because Senate Minority Leader Trent Lott, a Mississippi Republican with close ties to the judge’s family, had said he could secure enough Democratic votes there to win confirmation of one of the most controversial judicial nominees in decades. President Bush promoted the strategy on the eve of the vote, saying, “By failing to allow full Senate votes on judicial nominees, a few senators are standing in the way of justice.” Lott could still seek a full Senate vote, but such moves are rarely successful.
The most extraordinary moment of the extraordinary hearing the preceded the Pickering vote came late in the day, after Republican Senator Jeff Sessions, of Alabama, had mounted a fierce defense of the nominee. Sessions criticized civil rights groups and fellow senators, particularly North Carolina Democrat John Edwards, for focusing attention on a 1994 incident in which Pickering intervened with the Justice Department on behalf of a man convicted of burning a cross in front of the home of an interracial couple. Though experts on judicial ethics have condemned Pickering’s actions in the cross burning case, Sessions claimed the judge had done nothing wrong and argued that Pickering was the victim of a “Borking process” — a reference to the successful battle to defeat the nomination of Ronald Reagan’s most controversial judicial nominee, Robert Bork. Seeking to portray Pickering as a sensitive and engaged jurist, Sessions told the committee that the Mississippian had been “a leader for racial harmony,” and asked that documents he said supported this view be included in the record of the proceedings.
Leahy agreed to do that, but then asked that another document be included — a letter from the woman outside whose home the cross was burned. The victim of the attack wrote that, because of Pickering’s actions in her case, “my faith in the justice system has been destroyed.” She urged the committee to reject the judge’s nomination to the 5th Circuit Court of Appeals, which reviews federal cases from Mississippi, Louisiana and Texas.
Leahy’s bold gesture was one of many Thursday that saw Democrats on the committee challenge claims that Pickering was the victim of a “smear campaign” by liberal groups. Several senators defended so-called “outside groups” that built the case against the Pickering nomination. Senators Maria Cantwell, a Washington State Democrat, and Joe Biden, Democrat of Delaware, said they well understood the opposition of women’s groups to a nominee whose record is one of strident opposition to a woman’s right to choose. (Pickering led the fight at the 1976 Republican National Convention to put the GOP on record in opposition to the Supreme Court’s Roe v. Wade decision.)
The most impassioned defense of groups that fought the Pickering nomination came from Senator Richard Durbin, an Illinois Democrat, who challenged conservative attacks on the NAACP. He contrasted the record of the group, which he described as a prime mover in historic civil rights battles that “changed America for the better,” with that of the nominee, who Durbin noted “was not a champion of civil rights.”
Recalling the Rev. Martin Luther King Jr’s observation that the long arc of history bends toward justice, Durbin said he would not vote to confirm a nominee who was on the wrong side of the curve.