WHEN JIM JEFFORDS left the Republican party last May and became an independent, Democrats gained control of the Senate. By a single vote, yes, but what a difference that margin makes, especially when it comes to appointing judges. Consider the case of Charles Pickering, for twelve years a U.S. District Judge in Hattiesburg, Mississippi. Last year George W. Bush designated him for the Fifth U.S. Circuit Court of Appeals. On October 18, Pickering (rated “well qualified” by the American Bar Association) went before the Senate Judiciary Committee. Had Republicans still controlled the Senate, he would have been easily confirmed. But the one hearing wasn’t enough for Judiciary Committee Democrats. Pickering returned last week for a second hearing–more nearly an inquisition. Whether Pickering is ultimately confirmed or not, the Democrats made clear how they intend to deal with Bush nominees they target for possible defeat. Attack their life, attack their work, attack both if you can, and don’t let evidence get in the way. Last week’s hearing moved back and forth between Pickering’s career before he became a judge and his tenure on the bench. Pickering was in private practice before becoming a county prosecutor and then a state senator. The Democrats’ inquiry into statements and actions of his during those distant days sought to paint him as unsympathetic to claims of black equality, even a segregationist at heart. The Democrats read more into some events than the facts could reasonably bear. Yet Pickering found himself repenting of his 1964 statement that the national Democratic party had “humiliated” the people of Mississippi in the way it had treated the state party, then insistently segregationist. Asked whether he regretted saying that, Pickering, who became a Republican that year, replied, “I do.” On another matter–a seemingly innocuous contact in 1973 with the pro-segregationist Mississippi Sovereignty Commission–Pickering also wished that it was not on his record: “If I were making that decision today, I would not do it,” he said. Those acts of repentance didn’t seem to impress the Democrats. Nor did evidence portraying Pickering as an exemplary figure during Mississippi’s stormy civil rights era. Republican senators reviewed how in 1967 Pickering, a locally elected prosecutor, testified in open court against Sam Bowers, the imperial wizard of the Ku Klux Klan, who was being tried for the firebombing death of civil rights leader Vernon Dahmers. Later, Pickering was turned out of office. During his testimony Pickering attributed that outcome at least in part to the fact he had taken the stand against Bowers. Citing Pickering’s testimony against Bowers and other actions he had taken that helped move Mississippi away from its discriminatory past, Sen. Mitch McConnell lauded Pickering for his “moral courage.” But that was a point no Democrat was heard to second. The Democrats expressed apparent interest in Pickering’s approach to judging. Pickering distinguished between his personal and political views and the law, stating that as a judge he was duty-bound to follow the latter. He added that as a district judge he was bound by the decisions of the Fifth Circuit and the Supreme Court, whether he agreed with them or not. He further added that as an appellate judge he would be similarly bound. These routine positions didn’t satisfy the Democrats. Nor does it seem possible that they could have. At times the Democrats said they wanted judges who adhered to decisions by courts above. At other times they implied they wanted judges who would dissent from such decisions. Dianne Feinstein, for example, described the Fifth Circuit as “a trailblazer in protecting individual rights.” But she lamented that it was no longer that, a point more bluntly made by Democratic colleagues who called it a “very conservative” court. Did she mean to say that the decisions of such a court shouldn’t be followed? Likewise, Charles Schumer decried an “era of unprecedented judicial activism” wrought, though he did not say so, by Supreme Court appointees of Republican presidents. Did he mean to say that judges on the courts of appeals should defy the Supreme Court’s decisions? To his credit, Pickering declined to embrace the lawless approach to judging suggested by his Democratic interrogators. During her turn, Maria Cantwell inquired about Pickering’s views on the “right of privacy,” by which she really meant the abortion right. Pickering said that he “would follow what the Court has said” about the privacy right, which was first announced in a 1965 case, Griswold v. Connecticut. Cantwell noted that he, Pickering, didn’t say that he personally believed that. Pickering replied that he would follow the Court’s precedents. To which Cantwell responded: “Do you recognize it in the Constitution?” Said Pickering, “I see it because the Court has said it is there.” Cantwell was unsatisfied, as were other Democrats. It appears that they want judges who personally believe not merely that the Constitution contains an unenumerated right of privacy but that this right encompasses the abortion right declared by the Court in the 1973 case of Roe v. Wade. Judges nominated by a Democratic president would doubtless personally believe all of these things–and more. Pickering’s confirmation chances seemed slim at week’s close. Thanks to Jeffords, the committee now has 10 Democrats and 9 Republicans, and it takes 10 votes to get out of committee. Herb Kohl was the one Democrat who failed to make it to the hearing, and there was some speculation after the hearing that Pickering’s friend and sponsor, Trent Lott, had struck some sort of deal with Kohl in which the Wisconsin Democrat would vote for Pickering in committee and also on the floor. If so, Pickering just might make it onto the Fifth Circuit. In any case, his hearing is a reliable indicator of the nasty confirmation battles that lie ahead. Terry Eastland is publisher of The Weekly Standard.
