Charles W. Pickering - Fifth Circuit Nomination Under Bush

Fifth Circuit Nomination Under Bush

On May 25, 2001, during the 107th Congress, U.S. President George W. Bush nominated Pickering for a seat on the United States Court of Appeals for the Fifth Circuit vacated by Henry Anthony Politz who had taken senior status in 1999, but Pickering's nomination was not acted upon favorably by the Senate Judiciary Committee then under the control of Democratic senator, Patrick Leahy, a Vermont Democrat. Nevertheless, on January 7, 2003, President Bush renominated Pickering to the same position. With the Republicans now in charge of the committee during the 108th Congress, Pickering's nomination was voted out to the full Senate. With no way to stop his confirmation, the Senate Democrats chose to filibuster Pickering in order to prevent him from receiving a straight up-or-down confirmation vote.

Democratic opposition to Pickering was based mainly upon two factors. First, during two hearings before the Senate Judiciary Committee, he maintained a position opposing abortion. Second, he was accused of "glaring racial insensitivity" because of a 1994 hate-crimes case in which he decided that 25-year-old Daniel Swan, who had participated with two others in a cross burning, should receive a reduced sentence. The other participants in the cross-burning had escaped jail sentences for the crime because of plea bargains. During the course of testimony, Pickering came to suspect the Civil Rights Division had made a plea bargain with the wrong defendant. He felt that one of the other defendants, a 17-year-old, was more likely the ringleader of the group. When it came time to sentence Swan, Pickering questioned whether it made sense that the most-guilty defendant got off with a misdemeanor and no jail time, while a less-guilty defendant would be sentenced to seven and a half years in prison. "The recommendation of the government in this instance is clearly the most egregious instance of disproportionate sentencing recommended by the government in any case pending before this court," Pickering wrote. "The defendant clearly had less racial animosity than the juvenile." Pickering sentenced Swan to two years in prison rather than to the seven and a half years originally requested by the Justice Department. The Clinton Department of Justice later agreed with Pickering and requested a two-year sentence instead.

Groups that opposed Pickering's confirmation to the Fifth Circuit included: the national but not the Mississippi chapter of the NAACP, the Legislative Black Caucus, the Magnolia Bar Association, the Southern Christian Leadership Conference, and the Mississippi Worker's Center for Human Rights, the Congressional Black Caucus, the Leadership Conference on Civil Rights, the Alliance for Justice, the Human Rights Campaign, the Mexican American Legal Defense and Education Fund, the Rainbow/PUSH Coalition, the National Bar Association, the American Association of University Women, the National Women's Law Center, the National Partnership for Women and Families, NARAL Pro-Choice America, the National Women's Political Caucus, the AFL-CIO, the American Federation of School Administrators, American Federation of State, County and Municipal Employees, Union of Needletrades, Industrial and Textile Employees, the United Steelworkers of America and others.

However, Pickering's nomination was supported by several past leaders of the NAACP in Mississippi. One of his strongest supporters was former senatorial candidate Charles Evers, brother of slain civil rights leader Medgar Evers.

Senate Republicans failed to overcome a filibuster of Pickering's nomination on October 30, 2003, when he did not receive enough votes to invoke cloture and end debate on his nomination. Frustrated with the obstruction of the Senate Democrats, on January 16, 2004, President George W. Bush gave Pickering a recess appointment to the Fifth Circuit.

In December 2004, unable to overcome his filibuster and with his recess appointment about to end, Pickering announced that he was withdrawing his name from consideration as a nominee to the Fifth Circuit and retiring from the federal bench. He later was replaced as a nominee by Michael B. Wallace, but Wallace's nomination was also eventually withdrawn due to Democratic opposition. Only in 2007 was the seat allowed to be filled with Leslie H. Southwick, who was confirmed almost entirely because of the support of California's Democratic senator, Dianne Feinstein.

Thomas Sowell wrote of the nomination that "Judge Charles Pickering, a federal judge in Mississippi who defended the civil rights of blacks for years and defied the Ku Klux Klan back when that was dangerous, was depicted as a racist when he was nominated for a federal appellate judgeship. No one even mistakenly thought he was a racist. The point was simply to discredit him for political reasons — and it worked."