- The Washington Times - Monday, February 11, 2002

The far-left is flexing its muscles, roughing up a distinguished appeals court nominee just to show the Bush administration that they can. A year ago, left-wing senators savaged attorney general nominee John Ashcroft as a "shot across the bow" on a future Supreme Court vacancy. Today, by beating up Judge Charles Pickering, the shots are getting closer.
Judge Pickering has been a U.S. District judge since 1990 and his legal career spans more than four decades. Nearly 20 past presidents of the Mississippi Bar Association support his nomination to the U.S. Court of Appeals for the Fifth Circuit.
In their drive-by Borking, Judge Pickering's attackers insist that the nominee is "insensitive" to civil rights. On Feb. 6, Rep. Bennie Thompson said Judge Pickering is actually "hostile to minorities and women." These, of course, are the far-left's code words. Anyone who does not share their particular view of the world, their specific political agenda, anyone who is not like them, is insensitive and hostile. So much for tolerance and diversity.
Yet this picture bears no resemblance to the nominee, who initiated and serves on the board of the University of Mississippi's Institute for Racial Reconciliation. He has chaired a county race-relations committee, helped establish a local program for at-risk black youth, and both testified against and prosecuted Ku Klux Klan members despite risk to himself and his family. He once lost a bid for re-election as county prosecutor because he defied the Klan.
James Evers, brother of slain civil-rights leader Medgar Evers, wrote in the Feb. 7 Wall Street Journal that "I can tell you with certainty that Charles Pickering has an admirable record on civil rights issues."
The sensitivity cops in the judicial selection process are the liberal American Bar Association (ABA). Their published guidelines define the criterion of "judicial temperament" as including a nominee's "compassion … freedom from bias, and commitment to equal justice under the law." The ABA said Judge Pickering had those qualities in 1990 when first appointed to the federal bench. The Democrat-led Judiciary Committee and Senate unanimously approved him them, including current committee Chairman Patrick Leahy and Democrat members Ted Kennedy and Joe Biden. The ABA apparently believes Judge Pickering is even more committed to equal justice today, giving him their highest "well-qualified" rating for appointment to the appeals court.
Some of the attackers' tactics are really underhanded. The Alliance for Justice, for example, claims on its web site that Judge Pickering "decided not to publish" most of his 1,100 written opinions. The truth is that the Judicial Conference of the United States, which sets the rules for federal judges, since 1964 has said judges should limit publication of their opinion. Rule 47.5 of the U.S. Court of Appeals for the Fifth Circuit, which includes Judge Pickering's jurisdiction, echoes the same policy. The Federal Judicial Center's Judicial Writing Manual states that because decisions of district judges (such as Judge Pickering) are "merely persuasive authority" and not "binding precedent … publication should be the exception." More than 80 percent of appeals-court decisions are unpublished, and district judges should publish even less. Turns out Judge Pickering was just following the rules.
But then, that's what the debate over the judiciary is all about, whether judges must just follow the law or can (and even should) make it up to achieve particular results. It's about whether judges or the people should run the country and define the culture. The far-left finds it tough going in the ordinary political process, so they turn from the statehouse to the courthouse to force their agenda on us anyway. Our freedom, however, requires that judges follow the law and leave the politics to the people.
Judge Pickering knows the difference. At his Judiciary Committee hearing on Feb. 7, he repeatedly said that "I will follow the law even when I disagree with it." He told Sen. Dianne Feinstein that "I know the difference between a political decision and a judicial decision." That is precisely the kind of judge America needs. In fact, it's the oath judges take to be impartial.
In the completely political world of the far-left, even judges exist simply to further the revolution, to deliver the political goods. That world does not contain something called the rule of law that does not change and that can protect everyone's rights. It's their way or the highway. The ends justify the means. It's not how you play the game, but whether they win or lose.
The kind of judge America needs remains the primary issue in judicial selection. It's no wonder the far-left can't stand Judge Pickering. With more like him, especially on the Supreme Court, they would have to convince the American people instead of a few elitist judges. That's a debate they cannot win.

Thomas L. Jipping is director of the Free Congress Foundation's Judicial Selection Monitoring Project.

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