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With a Senate Judiciary Committee vote on Charles Pickering Sr. slated for Thursday, the appeals court nominee appears to be headed for a narrow party-line rejection, Senate observers say. In their last chance to screen Pickering, several senators have submitted written questions for the district judge from Mississippi to answer before the vote. Nothing in the questions seems likely to arouse hopes among Pickering’s backers that a Democrat or two would cross party lines and support him. At a Feb. 7 hearing, Democrats, who hold a 10-9 edge on the committee, queried Pickering intensively about his views on racial issues, his rulings as a trial judge, and his views on the Constitution and the right to privacy. The vast majority of the written questions came from Democrats with serious reservations about Pickering’s nomination. The queries track many of the issues raised at the hearing, but some new allegations also emerged. Sen. Herb Kohl of Wisconsin, the only Democrat who did not attend the Feb. 7 hearing, posed six questions that suggest Kohl shares many of his colleagues’ concerns. Kohl cited a Pickering voting rights decision from 1993 in which the judge expressed doubt about whether federal law requires drawing lines that divide towns and communities in order to equalize the population of voting districts. He concluded in Fairley v. Forrest County that he was “bound to follow the precedents established by prior controlling judicial decisions.” But he also wondered “if we are not giving the people more government than they want and more than is required in defining one-man, one-vote too precisely.” Commenting on this language, Kohl asked, “What could be more important in this country than an equal right to vote?” Pickering, with the help of officials at the Justice Department’s Office of Legal Policy, has sent in some written responses. But Mimi Devlin, a committee spokeswoman, says Chairman Patrick Leahy, D-Vt., will not release the replies until all have been received. Pickering declines comment. On his behalf, Justice Department Director of Public Affairs Barbara Comstock says, “Judge Pickering takes the inquiries of the Senate Judiciary Committee very seriously and is working diligently to provide them with thorough and accurate responses as quickly as possible.” Both Kohl and Sen. Edward Kennedy, D-Mass., asked about Pickering’s support in 1974 of a resolution asking Congress to repeal the Occupational Safety and Health Act. Pickering was then a state senator in Mississippi. According to Kohl and Kennedy, the resolution referred to OSHA as “ridiculous, outrageous, and wasteful” and assailed the act as unduly burdensome to business. “Do you still hold those views about OSHA?” Kohl asked. “Do your views expressed toward OSHA demonstrate your thoughts generally about the role of the federal government in issues concerning worker safety?” Though Pickering’s written response was not available at press time, a Department of Justice official rejects the implication that Pickering is opposed to OSHA enforcement. “Thirty years after OSHA was first passed, Judge Pickering believes that the federal government has an important role to play in ensuring the safety of America’s workers,” the official says. “As a practicing lawyer in the 1980s, Judge Pickering remembers using OSHA regulations and standards to protect the rights of workers.” Adds the official: “It is the responsibility of federal judges to enforce statutory enactments. The judge did so as a district court judge and intends to do so as a circuit court judge, if given the opportunity.” Sen. Russ Feingold, D-Wis., the lone Judiciary Committee Democrat to support the nomination of Attorney General John Ashcroft, questioned why Judge Pickering dismissed a number of pro se cases filed by federal prisoners as frivolous and threatened to impose sanctions against the prisoners. The senator pointed out that a 1996 law specified two types of sanctions against prisoners’ frivolous claims. He queried why Pickering authorized other sanctions — such as ordering prison officials to restrict the inmate’s prison privileges — without citing any basis in federal law. “On what specific legal authority were you relying when you threatened to impose these sanctions?” Feingold asked. The only Republican to ask questions was Sen. Jeff Sessions of Alabama, whose queries were framed in broad terms, unlike the confrontational tone that many Democrats adopted. “Please describe your views on the availability of habeas corpus relief to prisoners,” Sessions asked. While Pickering appears to lack support from any committee Democrats, some observers speculate that Leahy may agree to send the nomination to the Senate floor with a negative recommendation rather than bottle it up in committee. Pickering has strong support from Minority Leader Trent Lott, R-Miss., and at least two Democrats in the closely divided Senate — Ernest Hollings of South Carolina and Zell Miller of Georgia — have said that they would vote to confirm Pickering if his name reached the floor. Members of Leahy’s staff declined comment on whether Pickering’s name would get out of committee if he is voted down. Ron Bonjean, Lott’s press secretary, declines comment.

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