After nearly four years of battle, Senate Democrats have succeeded in keeping Judge Charles Pickering (search) from being confirmed to the federal bench, but the proud conservative warns that the war is now theirs to lose.
“My confirmation struggle lasted four years and although I would prefer confirmation, I am at peace and my spirits are high,” Pickering told FOXNews.com in an interview last month, almost two weeks after he retired from the Fifth Circuit Court of Appeals based in New Orleans.
President Bush gave the Mississippi judge a recess appointment to the circuit court in January after Democrats had held up his confirmation since 2001. The appointment was only good until the 108th Congress adjourned on Dec. 8.
Pickering, 67, said he decided he didn’t want to enter into the grueling confirmation process all over again, and announced he would not accept another nomination. Instead, he retired after more than 30 years as a prosecutor and judge.
In a press conference Dec. 9 in front of the federal courthouse in Hattiesburg, Miss., where he served as a federal judge for 11 years, Pickering said he can finally talk openly about the judiciary and about the attacks he and his family suffered during the confirmation process.
“The mean-spiritedness and lack of civility reduces the pool of nominees willing to offer themselves for judicial service,” he said in his prepared statement. “Extreme special interest groups opposed my nomination, primarily due to their hostility to any nominee with strong religious convictions … these groups believe nominees with committed religious values are not qualified to serve on America’s federal courts.”
But it was Pickering’s record on the bench in Mississippi, and even farther back as a county prosecutor, that Democrats highlight to illustrate why he was unfit to serve on the court.
“I think he is an extremist,” said Newsday columnist Ellis Henican, who said he is glad Pickering retired, and insists that it's a good thing that the Democrats have used the filibuster (search) to block a number of Bush’s nominees. “[Pickering] has a record that is stuck in the worst part of this country’s past.”
Pickering’s detractors, including groups like the National Association for the Advancement of Colored People (search) and People for the American Way (search), point, in part, to a law review article written in 1959 to explain their distrust of Pickering. In the article, Pickering suggested reshaping the state’s ban on interracial marriage to pass constitutional muster. They also cite a 1994 case in which he allegedly overstepped his authority to get a lighter sentence for a man accused of helping to burn a cross on an interracial couple's front lawn.
But the judge’s supporters say Democrats have twisted Pickering’s record and note that some of Pickering's biggest backers have been black leaders in Mississippi, who counted him as an ally in the civil rights movement. Today, free of the gag his nomination and recess appointment placed on his personal opinions, Pickering is his own best defender.
“It was an abuse — an unprecedented abuse. It was a misuse of race, it was an attack on Mississippi and an attack on religion,” Pickering told FOXNews.com. “It was wrong in the 1950s and 1960s for segregationists in the South to use race to divide us and it is wrong in the 21st century for people to inappropriately use race to divide us."
He said he proactively supported desegregating schools in Mississippi, fought the Ku Klux Klan (search) and sent his own children to schools with 70 percent minority populations back during the most turbulent times. “To have done all of those things and then to be accused of being a racist was certainly an unpleasant experience.”
Nonetheless, when he was first blocked by the then-Democrat majority on the Senate Judiciary Committee in March 2002, Sen. Ted Kennedy said Pickering did not have "the temperament, the moderation or the commitment to core constitutional protections that is required for a life tenure position" on the appeals court.
“I must say the Democrats, and you can regard this as prejudice if you will, are far more vicious in their attacks than Republicans,” said retired Judge Robert Bork (search), whose own U.S. Supreme Court nomination in 1987 was blocked by Democrats during a nasty confirmation battle that spawned the term "borking" to describe attacks on judicial nominees.
“I think the nomination process has lost its integrity,” Bork told FOXNews.com. “They are politicizing the judiciary, make no mistake about it."
But the Democratic groups opposed to Pickering and the nine other filibustered Bush nominees say the system was designed to keep the White House from stacking courts with their ideological kin. They say it's their job to prevent far-right judges from reaching the bench and using it to legislate on cases to restrict abortions or gay rights.
Besides, they say, Democrats helped to confirm over 200 of Bush's judicial nominees in his first term.
Still, Pickering complains he was targeted not necessarily for his record on civil rights but because he is outwardly religious and against abortion rights. These assertions, made during his press conference, drew immediate fire.
“Charles Pickering repeated the shameful, baseless charge that he was opposed because he has ‘committed religious values.’ The truth is that many people of faith opposed his confirmation based on his record as a judge and public official,” said Ralph Neas, president of People for the American Way. “What a graceless goodbye.”
Jeffrey Mazzella, head of the Center for Individual Freedom (search), which has been monitoring the judicial nomination process, called the attacks against Pickering “the perfect example of the smear campaign and character assassination that has defined how ugly the process has gotten. It is getting to the point where it is discouraging the brightest legal minds in the country to even be willing to accept a nomination.”
Pickering said he is convinced that the Republican victories in the November election indicate that Americans are not fooled by smear campaigns and filibusters.
“I do think that when you take all the judicial nominees who were filibustered, and combine that with the action of the judges in Massachusetts redefining marriage and the judges in California changing the Pledge of Allegiance … I think Democrats paid a terrifically high price because of that.
“They won the battle in the nomination filibusters, but in the end they lost the war.”