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Charles Pickering Sr. still has a long way to go before he can don the robes of an appellate judge. Pickering’s nomination for the U.S. Court of Appeals for the 5th Circuit was cleared, as expected, by the Senate Judiciary Committee Oct. 2 on a party-line vote. But Pickering, who currently sits as a U.S. district judge in Mississippi, has been assailed for his allegedly insensitive racial views and possible ethical missteps. He will face a stiff challenge this fall in the form of a probable Democratic filibuster. Senate Democrats haven’t yet announced whether they will try to prevent a floor vote on Pickering’s elevation to the appeals court. But in light of their success earlier this year in deploying the filibuster to quash the D.C. Circuit nomination of Miguel Estrada, a repeat performance for Pickering looks likely, and indications are that the Democrats have the votes to block this one too. Sen. Lindsey Graham (R-S.C.) certainly sees a filibuster coming. He told the Judiciary Committee, just before last week’s 10-9 vote, “I’m worried about the future of [the Senate]. You’ve chosen a course that will damn this body in the future by filibustering numerous nominees. The fight has begun. We need to break these filibusters, and we need to bring reason back to the table.” And Sen. Charles Schumer (D-N.Y.) gave similar indications from his side of the packed committee room. “Instead of working with us to find a consensus nominee,” Schumer said at the meeting, “the White House just throws the nomination back in our faces and flat dares us to fight. If the administration insists on a fight, then a fight they’ll get.” Starting with a base of 51 Republicans in the Senate, GOP vote-counters’ high-water mark on Estrada was 55, five short of the number needed to cut off debate on a cloture vote. On Pickering, the Republicans can count on at least 52 votes, since Sen. James Jeffords of Vermont, the chamber’s only independent and a usual Democratic supporter, announced his support for the judge last month. Still, the GOP will have a tough time getting to 60, sources on both sides say. A filibuster is likely to succeed, “unless we can group Pickering with other nominees who are alleged to be controversial,” says a Republican Judiciary aide. This source suggests that the Senate leadership should package Pickering with other stalled appeals-court choices who have drawn Democratic fire, such as California state Judge Carolyn Kuhl, a 9th Circuit nominee; Texas Supreme Court Justice Priscilla Owen, selected for the 5th Circuit; and Alabama Attorney General William Pryor Jr., an 11th Circuit choice. “If we made a group of four or five and sent them to the floor together, the Democrats would be hard pressed not to let one or two of them through,” this GOP aide says. But this staffer says it will be weeks if not months before such a package can be arranged. With a major supplemental appropriations bill still outstanding, the Senate leadership has shown little interest lately in pushing judges to the floor. A GOP strategist thinks Democrats may not decide to risk a filibuster for political reasons. Republicans will doubtless try to portray a challenge to Pickering’s confirmation as reflecting an anti-Southern bias among Democrats, and the party faces close or uphill Senate races next year in North Carolina, South Carolina, Georgia, and possibly Florida and Arkansas. “I’m not sure that they want to get into another bloody battle over Pickering,” this strategist says. BUSH JUDGES MAKING THEIR MARK Some controversial George W. Bush judicial nominees who were confirmed last year are beginning to make their mark on the federal courts. The nomination to the 10th Circuit of Michael McConnell, then a University of Utah law professor, drew serious opposition from groups concerned about McConnell’s conservative views on establishment-of-religion issues and about his stated belief that Roe v. Wade was incorrectly decided. While McConnell has not yet been called upon to decide a religion case or an abortion-rights matter in 10 months on the bench, he did write a noteworthy opinion in a habeas corpus case on Aug. 29 — one that began by describing a famous scene from the classic 1940 movie “The Philadelphia Story.” That was the film in which Katharine Hepburn decides to call off her wedding at the last possible moment, facing down a room of perplexed guests. The relevance to habeas? A state trial judge in Oklahoma had responded to a juror’s question about the meaning of “reasonable doubt” in a manslaughter case by spinning out a personal story. He described a case he had tried as a defense lawyer once, in which a prosecutor defined the term as “the kind of serious doubt that causes you to act or not act in matters that are serious, like calling off a wedding at the last moment.” The trial judge, it is true, had rejected that rather narrow definition. But the defendant appealed his conviction on the grounds that the judge had implicitly misled the jurors by giving them a too-narrow definition of reasonable doubt. Although a state appeals court and a federal district judge rejected the defendant’s argument in Wansing v. Hargett, McConnell, writing for a unanimous three-judge panel, overturned the conviction. “We recognize that the judge recounted the wedding-day standard of reasonable doubt only to criticize it,” McConnell wrote. “However, not every criticism of a mistaken standard is itself correct.” And this one gave the jurors too much leeway, implicitly permitting them to convict unless they were as certain of the defendant’s innocence as Hepburn was of her last-minute decision at the altar. Another Bush appointee who drew some flak was Paul Cassell, also a University of Utah law professor, who was criticized for his unsuccessful efforts to get the courts to overturn the 1966 Miranda v. Arizona ruling. In a May 2003 opinion, Cassell reflected on the superheated politics of judicial nominations in the nation’s capital — a somewhat surprising topic for a U.S. district judge to insert into an opinion. A Utah lawyer who had opposed Cassell’s nomination last year had asked Cassell to recuse himself from a case in which the lawyer was representing a client. The theory was that Cassell might subconsciously harbor a bias against the lawyer and thus fail to be impartial. Nothing doing, Cassell decided. Judges just aren’t that thin-skinned. “Today, federal judicial nominees fully understand that they will likely draw some fire,” Cassell wrote. “It is well known that the process has become more protracted and contentious in recent years and that it is the rare nomination that will be greeted with universal acclaim. . . . The garden-variety opposition to a judicial nominee . . . is not nearly enough to require recusal.” 4TH CIRCUIT PICK President George W. Bush has nominated Defense Department General Counsel William Haynes II to fill a vacancy on the Richmond-based U.S. Court of Appeals for the 4th Circuit. In making the announcement, the White House said that Haynes would replace H. Emory Widener Jr., a Virginian, who is retiring. The seat that Haynes is filling is traditionally reserved for a Virginia resident. However, the Richmond Times-Dispatch has reported that although Haynes works at the Pentagon in Virginia and is in the final stages of purchasing a home in Northern Virginia, he currently lives in the District of Columbia. As Defense general counsel, Haynes was a principal architect of the administration’s plans to try suspected terrorists in military tribunals. A former captain in the U.S. Army, Haynes is a graduate of Harvard Law School. He is also a former partner at Jenner & Block and a former associate general counsel of the General Dynamics Corp.

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