President Bush named the controversial judge Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit on Jan. 16. It ends three years of struggle by the administration to get the nomination out of the Senate, where Democrats have staged a filibuster.
'A minority of Democratic senators has been using unprecedented obstructionist tactics to prevent him and other qualified individuals from receiving up-or-down votes,' Bush said in a statement explaining his recess appointment.
Pickering will serve on the court until a new Congress comes into session, next year. He will then be 67 and is likely to retire.
Over the last 20 years, only one other judge has gained the bench through a recess appointment. Bill Clinton used the process to appoint Roger Gregory to the Fourth Circuit when then Sen. Jesse Helms had delayed confirmation.
Traditional civil-rights groups had maintained that Pickering was insensitive to those concerns and had opposed his confirmation. They pointed to his actions in the Mississippi legislature in the 1960s and to his ruling in a cross-burning case in 1994.
Supporters said that his views had changed with time, just as those of the country and the South have changed. They pointed to support for Pickering from a number of African Americans in Mississippi where he has served as a federal judge for the last 13 years.
The Human Rights Campaign (HRC) joined its civil-rights allies in opposing the nomination. 'A man whose career has been marked by racial divisiveness and antigay prejudice cannot be trusted to fairly interpret the laws of our country,' said newly installed president Cheryl Jacques. But while HRC cited examples of questionable judgment on racial issues, it did not do the same on matters of sexual orientation.
Log Cabin Republicans have defended the nomination in the past. After meeting with Pickering in 2002, then executive director Rich Tafel said, 'Judge Pickering reiterated to me his strong belief that all Americans should be treated equally under the law, including gay and lesbian Americans, and his record as a federal judge clearly demonstrates it.'
Tafel pointed to an example from 1991 where Pickering sharply rebuked an attorney who tried to use a plaintiff's homosexuality in a fraud trial. 'Homosexuals are as much entitled to be protected from fraud as any other human beings,' Pickering instructed the jury. 'The fact that the alleged victims in this case are homosexuals shall not affect your verdict in any way whatsoever.'
In 1994, when local citizens of Ovett, Miss., harassed the recently established lesbian farm community Camp Sister Spirit with a lawsuit, Pickering threw the case out. 'It is rare to have a judge with his record of support for equal treatment under the law on the federal bench,' said Tafel.
Observers see the appointment as a political move that will strengthen the core groups supporting and opposing Pickering. It will solidify the Republican base in the South, and help to further strengthen the liberal core that opposes Bush. It further reinforces the partisan bickering over nominations that increasingly has characterized the process over several administrations.
