War begins over bench nominees

The nomination of a little-known Mississippi judge to a federal appeals-court seat has mushroomed into the Bush administration's first big judicial-choice battle.

The fight over Charles Pickering Sr. hasn't reached the intensity of a full-scale struggle over a Supreme Court nominee, such as the one sparked by Clarence Thomas in 1991. But it does seem like something of a warm-up for skirmishes to come. All the familiar elements are there, from the pugnacious conservative Senate defenders to the attack coalition of liberal groups that says it is outraged by the nominee's past record.

There are some interesting twists on that lineup in this case - but more on that later. First, the main substantive issue. What's more important: the person Judge Pickering once was, or the man he has become?

A key Senate Judiciary Committee vote on the nomination could come next week.

"This is a very public debate over a candidate's record," says Nan Aron, president of the Alliance for Justice, one of the groups that opposes the Pickering nomination.

Aron and other opponents say that Pickering's past actions position him far to the right of the American mainstream, particularly in regard to minority rights.

They point, for instance, to a 1959 law review article Pickering wrote suggesting changes in Mississippi's law banning interracial marriage that would make it more effective.

In 1964, critics add, Pickering - then a state senator - bolted the Democratic party in part because he opposed efforts to integrate the Mississippi delegation to the Democratic National Convention.

Since his appointment to the federal bench, he has criticized the creation of largely African-American political districts as a means to remedy past racial discrimination. Critics question his record on job discrimination and other civil rights cases.

"The bottom line is that we believe he is a right-wing ideologue," says Ralph Neas, president of People for the American Way.

Pickering's defenders point out that many of the objections to his record deal with items in the long-ago past, when white Southern politicians operated in a very different political context.

Nor do the criticisms tell the whole story, they say. In 1967 Pickering lost a reelection race for county attorney after testifying against a Ku Klux Klan leader on trial for killing a civil rights leader.

Furthermore - and here's where the twist part comes in - the black establishment in Pickering's hometown of Laurel, Miss., overwhelmingly supports his elevation to the appeals bench. They consider him someone who has at least tried to foster racial reconciliation by supporting the funding of medical clinics in poor districts, and other actions.

The Senate Judiciary Committee has received some 27 letters of support for Pickering from members of the African-American community, said Sen. Orrin Hatch (R) of Utah, ranking GOP member of the panel, at the opening of a Feb. 7 hearing on the nomination. "Those fighting Pickering's nomination, in contrast, seem to consist primarily of a host of Washington lobbyists," said Sen. Hatch.

A FEW years ago, the Pickering nomination might have attracted much less attention. It doesn't involve the power and prestige of the Supreme Court, for one thing.

As a close friend of the top-ranking Republican in the Senate, Sen. Trent Lott of Mississippi, he might reasonably have expected to be whooped through confirmation on grounds of senatorial courtesy.

But the bitter battles over such high court picks as Robert Bork, the Reagan nominee who was defeated in 1987, and Clarence Thomas, the eventually-confirmed choice of George H. W. Bush, have left behind an ideological infrastructure of judicial confrontation.

Both conservative and liberal groups have institutionalized "opposition research" for court nominees, consisting of detailed scrutiny of past decisions and writings, including unpublished ones. The result: a sort of rote warfare that now extends down several layers deep into choices for lower-level federal courts.

Pickering is not the only appeals court pick who will face opposition, for instance. Nominee D. Brooks Smith, a Pennsylvania judge, is now facing charges of misconduct involving financial conflicts of interest from liberal opponents. "The strategy is one of defeat through caricature," says Thomas Jipping, a judicial expert at the Free Congress Foundation, a group that supports Pickering and other Bush nominees.

The new intensity of struggle over judicial nominees also reflects the realization that the federal bench profoundly affects US life, of course. Bush has been open about his desire to make US courts more conservative - as were his father and Ronald Reagan before him.

Pickering's future now turns on Democratic unity. If all 10 Democrats on the judiciary panel vote "no," his nomination won't make it to the Senate floor. "He will not be confirmed," predicted panel member Sen. Dianne Feinstein (D) of California on Feb. 24.