LAST MAY, even as Vermont senator James Jeffords prepared to leave the Republican Party, President Bush decided to nominate federal district judge Charles Pickering to the 5th U.S. Circuit Court of Appeals, which encompasses Texas, Louisiana, and Mississippi. Judge Pickering has endured not one but two Senate Judiciary Committee hearings. Today, his nomination is in doubt. And the main reason it is can be traced to Jeffords’ departure from the GOP. Before he left, the two parties had the same number of senators: Fifty. But the GOP controlled the Senate on the strength of vice president Dick Cheney’s authority to cast tie-breaking votes. Jeffords’ departure–he became an independent–reduced the GOP number to 49. The Democrats thus gained control, an event of predictable consequence for judicial appointments. Most judicial nominees are confirmed regardless of who controls the White House or the Senate. But when, as now, there is divided government–with one party in control of the White House and the other the Senate–more nominations are likely to be contested and defeated than when the same party controls both. Had Jeffords remained a Republican, Pickering would have been confirmed long ago. He was unanimously confirmed for the district court in 1990, and the American Bar Association has rated him “well qualified.” Even now, if he could be voted out of committee, he would stand a good chance of winning confirmation, since two Democrats–Fritz Hollings and Zell Miller–have voiced their support. Pickering’s problem, however, is how to get from here to there–from the committee, where the Democrats hold a 10-to-9 edge, to the Senate floor. The Judiciary Committee is territory patrolled by Leahy (the chairman), Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, Cantwell, and Edwards, most of whom are exquisitely attuned to the imprecations of left-wing interest groups, such as People for the American Way and Alliance for Justice. Those groups have pushed hard, and so far successfully, against the nomination. Pickering himself has the misfortune of having virtually invisible White House support. He was chosen largely out of deference to a senator, his longtime friend Trent Lott, who began pitching for the judge’s elevation to the 5th Circuit when he was Senate majority leader. Had Lott not lobbied for Pickering’s nomination–announced on May 25, one day after Jeffords fled the GOP–Bush probably would have selected someone else. Pickering, after all, is a few months away from 65, the age a judge may take senior status. Nor, his ABA rating aside, is he a legal superstar, someone likely to shape the law of the 5th Circuit. “We did this solely to please the then majority leader,” one administration official told me. “It’s his guy, and it’s up to him to get him confirmed.” That task would be far easier were the “then majority leader” still the majority leader. Rarely making headlines, the Pickering nomination has become a series of stories within a story. Some Democrats are motivated against the nomination because they don’t like the way Trent Lott ran the Senate. Others are inclined against the nomination as payback to Republicans for their sometimes slow processing of Clinton judicial nominees, including three for the 5th Circuit who failed even to get hearings. Also, there are Clinton Justice Department lawyers who butted heads with Pickering over their sentencing recommendations in a cross-burning case and are laboring against him behind the scenes. And, of course, there are the liberal interest groups, back after eight years on the sidelines, picking at Pickering as a warm-up for the real battle–over a Bush nominee to the Supreme Court. Substantively, the case against the nominee is unimpressive. He grew up in segregated Mississippi, but the left’s effort to portray him as “insensitive” to civil rights is misguided and unfair: In 1967, as an elected county prosecutor, Pickering testified against the imperial wizard of the Ku Klux Klan, an act of moral courage that cost him his office. Pickering does hold conservative political views. But, contrary to concerns voiced by the law firm of Leahy, Kennedy, Biden, et al., his record on the bench isn’t that of a judge who fails to distinguish between his own personal and political views and what the law says. Of course, none of that may matter, since the Democrats have the power to defeat his nomination. This is the Jeffords effect, and the jury is out on whether Trent Lott can overcome it. He might, but probably not unless Bush, stingy with expenditures of his considerable political capital, finally decides to join the battle. Terry Eastland is publisher of The Weekly Standard.
