President Bush on Friday installed Mississippi Judge Charles Pickering on a federal appeals court in an election-year slap at Democrats who had bottled up his nomination for more than two years out of concerns over his civil rights record.
Bush named Pickering, a U.S. district judge in Hattiesburg, as a recess appointment, a rarely used maneuver that avoids the confirmation process. Such appointments are valid until the next Congress takes office, in this case next January. He was sworn in in Jackson, Miss., later Friday night.
The appointment allows Pickering, 66, to sit on the 5th U.S. Circuit Court of Appeals through the end of this year. Then he would be eligible for full retirement benefits because of his age and length of service on the federal bench.
If not confirmed by the Senate before the end of the year, Pickering would probably retire, supporters suggested.
Pickering says he's ‘grateful’Bush said Pickering would have been confirmed if his nomination had been brought to a vote.
“But a minority of Democratic senators has been using unprecedented obstructionist tactics to prevent him and other qualified individuals from receiving up-or-down votes,” the president said, adding that the Senate should “stop playing politics with the American judicial system.”
Pickering, contacted by The Associated Press at his Mississippi home, said: "I'm grateful to the president for his continued confidence and support. I look forward to serving on the 5th Circuit."
Senate Democrats blocked Pickering’s nomination for more than two years, accusing him of supporting segregation as a young man and of pushing anti-abortion and anti-voting-rights views as a state lawmaker.
They also have said they would not be able to trust Pickering to keep his conservative opinions out of his work on the federal appeals court.
Sen. Charles Schumer, D-N.Y., called the recess appointment “a finger in the eye to all those seeking fairness and bipartisanship in the judicial nominations process.”
Another Democrat, Rep. Bennie Thompson of Mississippi, said, “It is quite unfortunate that the president has chosen to seat Judge Pickering only days before the nation celebrates the life and legacy of Dr. Martin Luther King Jr.”
Thompson said that while on the federal bench in Mississippi, Pickering had sought to “limit minority voting strength and to stifle the rights of women — counter to everything Dr. King and the civil rights movement were all about.”
The Democrats did not criticize Bush specifically for employing the seldom-used recess appointment to evade their opposition.
President Bill Clinton used the mechanism to install Roger L. Gregory as the first black judge on the 4th Circuit, which oversees Maryland and Virginia, after the Republican-controlled Senate stalled his nomination. Bush renominated Gregory, who was confirmed for a lifetime appointment in July.
A trailblazing court
The 5th Circuit handles appeals from Mississippi, Texas and Louisiana, and the federal judges on that circuit have been trailblazers on desegregation and voting rights in the past.
Sources told NBC News on condition of anonymity that the president decided on the recess appointment because he felt strongly about sending Congress a signal that lawmakers “shouldn’t play politics with his judges.”
They also said that while three other judges whose nominations have been stalled wanted to keep fighting for up-or-down votes, Pickering was willing to accept a recess appointment. The three other appeals court nominees are Alabama Attorney General Bill Pryor, Texas Supreme Court Justice Priscilla Owen and Hispanic lawyer Miguel Estrada. Frustrated by the delays, Estrada withdrew his nomination in September.
Unable to muster 60 votes to break the Democratic filibuster on the nominations of Pickering and the other controversial candidates, Republican leaders had been pushing Bush for a recess appointment for months. Gannett News Service reported in November that Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, and Senate Majority Leader Bill Frist, R-Tenn., were among those urging the White House to use the controversial tactic.
During the hearings for Pickering and others, Republicans accused Democrats of being biased against Bush’s anti-abortion nominees, and Pickering’s nomination sparked one of the most contentious battles.
He was the first of Bush's nominees to be blocked by Democrats while they controlled the Senate in 2001, and his chances of getting through the Senate waned with the resignation of then-Majority Leader Trent Lott, R-Miss., over statements about the late Sen. Strom Thurmond of South Carolina that implied that Lott supported the strong segregationist views Thurmond had in the 1940s.
Judge denied allegations of racial insensitivityPickering, however, refused to step aside and continued to try to build support in the South. He strongly denied allegations of racial insensitivity.
“For 25 years, I have strongly advocated that African-Americans and whites should sit down and talk in a positive and constructive manner to try to promote better understanding. This I've done,” Pickering said after a meeting with the Mississippi Black Caucus last year.
Republicans concentrated on other nominees like Estrada and Owen but always promised to get back to Pickering.