- The Washington Times - Saturday, January 17, 2004

President Bush sidestepped the Senate yesterday and made a recess appointment of Judge Charles W. Pickering of Mississippi to the U.S. 5th Circuit Court of Appeals.

The recess appointment, which needs no Senate approval, will be effective through the life of the present Congress, which expires in January 2005. President Bush made it after nearly a year of filibustering from a group of Democrats who have been opposed to Judge Pickering, whom they have depicted as insensitive to civil rights, and five other nominees offered by Mr. Bush.

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“A bipartisan majority of senators supports his confirmation, and if he were given a vote, he would be confirmed,” Mr. Bush said. “But a minority of Democratic senators has been using unprecedented obstructionist tactics to prevent him and other qualified individuals from receiving up-or-down votes.

“Their tactics are inconsistent with the Senate’s constitutional responsibility and are hurting our judicial system.”

Sen. Trent Lott, Mississippi Republican and longtime friend of Judge Pickering, hailed the appointment of the “outstanding jurist” and said his nomination had been “stifled by special interests who have unfairly smeared the reputation of a good man just to pursue their very narrow political agenda.”

Senate Democrats scolded Mr. Bush for “circumventing” the process by appointing Judge Pickering without the “advice and consent” of the Senate as required by the Constitution.

“It is now clear that the White House will exploit any procedural tactic in order to pack the courts with right-wing ideologues,” said Minority Leader Tom Daschle, South Dakota Democrat.

Sen. Edward M. Kennedy, Massachusetts Democrat, said the maneuver “serves only to emphasize again this administration’s shameful opposition to civil rights.”

“The president’s recess appointment of this anti-civil-rights judge the day after laying a wreath on the grave of Martin Luther King is an insult to Doctor King, an insult to every African American and an insult to all Americans who share Doctor King’s great goals,” said Mr. Kennedy.

The Constitution allows recess appointments. Throughout history, presidents have made more than a hundred recess appointments of judges, including 15 to the Supreme Court. In many cases, those judges were later confirmed.

Under this appointment, Judge Pickering, who was previously a lower federal court judge in Mississippi, will serve on the appellate bench until the new Congress convenes, which is January 2005. Republicans hope that by that time they will have won enough new seats in the Senate to override the Democratic filibusters against Mr. Bush’s nominees.

“Frankly, opponents have only themselves to blame,” said Sen. John Cornyn, Texas Republican and member of the Judiciary Committee. “They’ve prevented an up-or-down vote and the president exercised a constitutional option to end an unconstitutional filibuster against a nominee with bipartisan, majority support.”

Mr. Bush’s decision comes as conservatives nationwide have grown increasingly frustrated with Mr. Bush and Republicans in general over what they see as profligate spending at a time when the Republicans control the White House and both houses of Congress.

In particular, conservatives are angry over the recent expansion of Medicare. Also, many are angry over Mr. Bush’s recently announced policy on immigration, which they say is amnesty for immigrants who are living here illegally.

“Conservatives see this as a welcomed first step,” said a senior Republican strategist on Capitol Hill. “But we’re holding our breath for him to make this part of his State of the Union address,” scheduled for Tuesday.

“This is a bold and necessary move by President Bush,” said Tony Perkins, president of the Family Research Council. “At a time when our courts at every level are overstepping their bounds by sanctioning same-sex marriage and infanticide and stripping us of our religious freedoms, President Bush has taken the first step to ensure that our federal courts are filled with jurists who understand their role is to follow the Constitution, not reinvent it.”

Sen. John Edwards, North Carolina Democrat and presidential candidate, issued a statement while campaigning in Iowa yesterday.

“Charles Pickering does not belong on the U.S. Court of Appeals,” said Mr. Edwards, a member of the Judiciary Committee who has supported all of the filibusters against Mr. Bush’s nominees. “This is a judge who regularly put his personal views above the law.”

In particular, Mr. Edwards and others object to Judge Pickering over a case in which he asked prosecutors to reduce a mandatory sentence against a man who helped burn a cross in the front yard of an interracial couple. Judge Pickering’s concerns were based on the fact that the man — whom he believed was not the ringleader — was sentenced much more severely than two other men he thought were more involved.”

Manuel Miranda, who handles judicial nominations for Senate Majority Leader Bill Frist, Tennessee Republican, called those charges “unconscionable” and said Judge Pickering, like many judges, was simply bridling at a mandatory sentence that resulted in unfair justice in a particular case.

In addition, Pickering supporters note that Judge Pickering, who is supported by many blacks in Mississippi, testified against a Ku Klux Klan leader in 1967.

“Charles Pickering is a man who testified against the Klan in Mississippi in the heat of the 1960s,” Mr. Miranda said. “He represents the new South, which is a community of whites and blacks working together.”

Amy Fagan contributed to this report.

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