Posted on 11/21/2003 6:34:51 AM PST by WKB
Republicans think this is last means to get judge to serve on 5th Circuit Court
WASHINGTON — U.S. Sen. Trent Lott had been the lone vote against confirming a federal appeals court nominee because he disagreed with how former President Clinton gave the man a temporary appointment to the bench while Congress was out of town on recess.
Now there's talk of pressing the White House to give Charles Pickering a so-called "recess appointment" to the 5th Circuit Court of Appeals, and Lott has changed his way of thinking.
"It's not something I'm generally supportive of," he told a Capitol Hill newspaper. "In this case, it's something that might be considered and should be considered." Lott did not return phone calls for this story.
In 1999, then-President Clinton wanted to appoint a black candidate to the 4th U.S. Circuit Court of Appeals based in Virginia, but Republican Sen. Jesse Helms of North Carolina kept blocking the nominees.
Finally, in the final weeks of his second term, a frustrated Clinton appointed Richard Gregory, a corporate lawyer from Richmond, Va., to the appellate court while Congress was out of town on recess.
The recess appointment allowed Gregory to serve on the court — which hears appeals from North Carolina, South Carolina, Virginia, West Virginia and Maryland — for about a year until Congress adjourned.
Gregory's work on the bench won over President Bush, who reappointed him with the strong backing of Virginia's Republican senators. He was confirmed by the Senate on a 94-1 vote in July 2001, with Lott casting the only no-vote.
Pickering, a U.S. District Court judge in Hattiesburg, is now in the same situation Gregory was in 1999.
Saying they disapprove of Pickering's record on civil rights and workers' rights, Democrats have blocked his nomination to the 5th Circuit for more than two years.
Unable to muster 60 votes to break a Democratic filibuster on the nominations of Pickering and four other controversial candidates for federal appellate courts, several GOP leaders are pushing the recess option.
"Things are going to happen that Democrats won't like, like recess appointments," warned Sen. Don Nickles, R-Okla. "They need to know there is a reason why there have never been filibusters on judges before."
Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, and Senate Majority Leader Bill Frist, R-Tenn., are also pushing the White House to sanction the controversial tactic. A recess appointment would allow Pickering, 66, to sit on the appellate court until the end of 2004. Then, he would be eligible for full retirement benefits because of his age and length of service on the federal bench.
A recess appointment is possible, and so is changing the Senate rules on filibustering, said the judge's son, 3rd District U.S. Rep. Chip Pickering, who has lobbied heavily for his father's confirmation.
The White House won't comment on its plans, said spokesman Taylor Gross.
"But the president is committed to making sure we fill the judicial vacancies as quickly as possible," he said.
Since he has been in office, Bush has made a handful of recess appointments to administrative posts.
The appointment of federal judges during a congressional recess is rare. Before Gregory's appointment, the last time a judge was seated during a recess was in 1982.
The White House has turned to recess appointments even for Supreme Court justices.
Former Chief Justice Earl Warren was appointed during a congressional recess in 1953, and justices William Brennan Jr. and Potter Stewart took their seats in 1956 and 1958 by appointments made during Senate recesses.
The justices were eventually confirmed by the Senate, but not before deciding cases during their recess service.
Mary Cheh, a law professor at George Washington University, said Democrats' and Republicans' inability to come to terms with their differences over Pickering and other judges has set the stage for a recess appointment.
Cheh said a recess appointment of Pickering would offer the GOP a "symbolic benefit."
"(Republicans) are a crowd that keeps score and if they can put someone on the bench, even temporarily, they'll do so," she said.
Pickering would not comment on whether he'd like a recess appointment.
But legal analysts and some senators say there's no other way he can ascend to the appellate court.
If Pickering's not given a recess appointment, he may follow fellow nominee Miguel Estrada's footsteps and withdraw his nomination after being the subject of a lengthy filibuster.
Perfectly understandable, bourbon. I didn't mean to interrupt you. ;o)
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