Editorial: Pickering picked again

Every now and then a president will nominate a judge to the federal bench who is so extreme, so removed from the opinions of the American public, that he is unfit to decide the most important court cases in the country. As much as the Democrats would like newly renominated Judge Charles Pickering to be that kind of nominee, and as much as Pickering lacks a spotless record, Democrats have yet to make a compelling argument for blocking his nomination. Rather, their rhetoric against the current district court judge speaks to a growing dilemma in the nomination and confirmation of federal judges.

President George W. Bush first nominated Pickering to the U.S. Court of Appeals in 2001. Following tumultuous confirmation hearings and a party-line vote in the Senate Judiciary Committee, his nomination failed. Administration officials hinted at renominating him, and despite the racial controversy surrounding Pickering's mentor, former Senate majority leader Trent Lott, Bush renominated Pickering last week. That Pickering could share Lott's nostalgia for segregation is troubling, which makes it all the more curious why Bush would want to give the Lott affair new life by renominating Pickering.

Nevertheless, the Democrats have yet to find in Pickering's history the kind of pseudo-segregationist background that cost Lott his position as majority leader. They have tied him to vaguely segregationist activities in the 1950s and 60s, such as a paper he wrote in law school that suggested strengthening laws against interracial marriage. But so far the greatest sin on his record is a 1994 case in which he sought a reduced sentence for a man convicted of cross-burning. Many points of the case are still in contention, including the man's level of involvement in the crime, and there is nothing to document clearly that Pickering is a racist, only that he is a convenient target for Democrats.

That is not to suggest that Pickering would be an ideal jurist, only that the objections to his nomination are bigger than a relatively obscure decision. Republican charges that Democrats are holding Bush's 30 nominations hostage to other legislative priorities are true, but, as one would expect, the Democrats are not the only culprit. For the last 20 years, both Democratic and Republican presidents have seen their nominations pronounced dead-on-arrival by hostile senators. Even Supreme Court Chief Justice William Rehnquist, in an unusual move, has spoken out against the situation and the problems it creates for the judicial branch.

Thankfully the situation has not reached the point of crisis, but eventually the president and the Congress need to forge a compromise that will fill the federal benches while also protecting the moderate nature of the judiciary. Considering the case Democrats have made against Pickering so far, whether that compromise begins with Pickering is largely unimportant.