Former Federal Judge Charles Pickering on the Battle Over Judicial Nominees

This is a partial transcript from "Hannity & Colmes," May 24, 2005, that has been edited for clarity.

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SEAN HANNITY, CO-HOST: Joining us now is a man who knows a few things about judicial nominations, former federal Judge Charles Pickering, whose nomination was also held up by Democratic senators.

Thank you, sir, for being with us. Your initial thoughts on this deal?

CHARLES PICKERING, FORMER FEDERAL JUDGE: Well, Sean, I felt like it was going to be very difficult for the Democrats to actually force this to a vote. If they lost this vote, they lost the Supreme Court contest.

And additionally, some of their senators, if they keep filibustering, are going to be very vulnerable. So I thought it was a no-win situation for the Democrats, and it seems to me like they've backed off and they're going to let these three judges through. And they should. These judges are not extremists, they are conservative...

HANNITY: What about the other two?

PICKERING: Well, the other two, I predict, we'll have a good shot of getting them through, or at least give them an up-or-down vote.

HANNITY: Yes. Well, by the way, we're looking live at the Senate floor. They're still talking about this.

I went back, Judge, and I started looking at some of the comments made by you. Now, one of the things that really is somewhat frustrating to me, is quote, "Nominees should only be filibustered under extraordinary circumstances, and each person signing onto this deal must use their own discretion."

Well, Senator Ted Kennedy, talking about you, a recess appointment, he said, the day after laying a wreath at the grave of Martin Luther King, said it was "an insult to every African-American, an insult to all Americans who share Dr. King's goals."

He said: "Last month with the recess appointment of Charles Pickering to the court of appeals," he goes on to say, "your extreme ideology." Chuck Schumer said "the Pickering nomination is exhibit A in the case of White House arrogance." Senator — similar comments from other senators.

Are you one of the extraordinary circumstances? Would Antonin Scalia be one? Would Clarence Thomas be one?

PICKERING: Sean, what they really mean is they're conservative. Ten years before — earlier, the Senate had confirmed me unanimously, and, at that time, the ABA had rated me qualified, and in 2000 and into 2001 they rated me well qualified. So I had a better recommendation from the ABA the second time around, but I was filibustered the second time around and unanimously confirmed the first time. I had not changed during that time. The politics had changed.

It was abortion and the extreme groups that pushed the Democratic Party way, way to the left.

HANNITY: Here's the point, Judge. Senator John Kerry referred to you as "a cross burner." Now, if the Republicans made a deal with these Democrats, the same thing would happen to you again, because you would be extraordinary circumstances.

I have no doubt they'd find a reason for Justice Thomas and Scalia and Rehnquist. So the bottom line here is, Republicans basically allowed the Democrats and minority to change the rules and allowed this pressure to work, didn't they?

PICKERING: Well, Sean, there has never been a precedent of filibustering judges. No judge prior to the Bush nominees was ever prevented from having an up-or-down vote who had a majority support in the Senate because of a filibuster.

They've distorted the issue. They've misrepresented the issue, and it just — it was not — and these judges, none of them were extremists like they portrayed them. When they categorized us, they didn't put me in the extreme group. They put me in the middle group. But they picked me out to oppose me for political reasons.

HANNITY: But that's the point. Isn't that what...

PICKERING: Exactly.

HANNITY: Isn't that what this deal, this back room deal among 14 people, allows the Democrats to basically characterize anybody as extreme, right? Isn't that...

PICKERING: Exactly.

HANNITY: Shouldn't the Republicans have stood on principle on this?

PICKERING: Well, what will happen, though, you don't know whether they're going to filibuster these other two. They let these three go through, and I'm sure these three are happy for that.

HANNITY: They made a back room deal.

ALAN COLMES, CO-HOST: I know it's going to shock you, Judge — it's Alan. Good to have you back on the show.

I actually see...

PICKERING: Hi, Alan. How are you.

COLMES: ... it the opposite the way Sean sees it. I know that shocks you. I think some of the Democrats might have caved here. They're going to approve the three most extreme judges here.

And you say that the Democrats gave in. I think the Republicans gave in, because they wanted to do away with the filibuster. Didn't they give ground here?

PICKERING: I think the Republicans got what they gave away of the filibuster on these three.

And Alan, in all due respect, these three judges are not extremists. Let me tell you two things. Justice Rogers would not have — Janice Rogers Brown would not have gotten 76 percent of the vote in California if she was an extremist. No way.

And Justice Priscilla Owen got 84 percent of the vote in Texas. She's no extremist.

And Judge Pryor has one of the best records of following the rule of law. He's ruled oftentimes against what his personal beliefs are. He's no extremist.

COLMES: Alberto Gonzales, the now attorney general, when he served with Priscilla Owen in Texas, said she was extreme, said that she went way beyond the court.

And when you talk about a vote, it's not like you're voting for a senator. It's basically a yes or no vote, should they keep their office? It's not commensurate with a vote for elective office.

PICKERING: Alan, you can spin it any way you want to. It was 84 percent of the vote and 76 percent of the vote, and I'll take that any time.

COLMES: Let me ask you about the phrase that Sean brought up, extraordinary circumstances. He brought up your record. And you were accused by Democrats of efforts in 1994 to reduce a sentence required by law of a man who burned a cross on the lawn of an interracial couple.

You were accused of writing a paper against miscegenation, and when asked in 1990 about the article, you said you had no opinion about — at the time whether interracial marriage should be illegal.

Is that mainstream?

PICKERING: Alan, I told the Senate in 1990, and I told them again in 2001 when I was before them, that I thought who one married was a personal choice, and that I did not believe that laws outlawing interracial marriage were appropriate, that they were unconstitutional. And the Supreme Court said the same.

Here, you're going back and taking things out of context, just as they did. Listen, I had a record in 1967. When the Ku Klux Klan was bombing, burning and shooting into homes, I testified against the imperial wizard, the white knight of the Ku Klux Klan.

I sent my children to integrated schools, 70 percent integrated schools. Mike Wallace on "60 Minutes" saw the hypocrisy of what they were doing to me, and "60 Minutes" had a great program showing that the charges you're talking about were bogus charges.

You know, you can paint and tar anybody if you want to take a few statements out of opinions they've written and distort them and mischaracterize them. And that's what happened.

COLMES: Were you mischaracterized when you said...

PICKERING: That's what happened to these nominees as well.

COLMES: ... when they said that you called the one-person, one-vote law obtrusive and wanted if defining it too precisely, was that taking you out of context?

PICKERING: Alan, yes, absolutely. Because I said the one-man, one- vote must be enforced and would be enforced. But I said what the legislature was doing was forcing the courts to be obtrusive in the manner that the legislature should be taking of.

HANNITY: All right, Judge. If they could purposely mischaracterize you and your extraordinary circumstances, that means they could do it to anybody. That's why this is a bad deal, in my view. But we'll have more when we get back.

Thank you, Judge. Appreciate your time.

PICKERING: Thank you, Sean.

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