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The liberals have found their poster boy. His name is Charles Pickering Sr. Almost nine months after President George W. Bush unveiled his first judicial nominees, a broad coalition of liberal civil rights groups gathered Jan. 24 to announce their opposition to Pickering, a nominee for the 5th U.S. Circuit Court of Appeals. To the groups, Pickering, a U.S. district judge in Mississippi, is wrong on civil rights and abortion. He is also a close friend of fellow Mississippian Trent Lott, the conservative Senate minority leader who is pushing hard for Pickering. And while other nominees have waited months for a confirmation hearing, Pickering is scheduled to get a second, highly unusual go-round before the Senate Judiciary Committee the week of Feb. 4 — thanks to Chairman Patrick Leahy, the liberal Democrat from Vermont. Pickering is the first Bush judicial nominee to draw formal, public opposition. But he is unlikely to be the last. In a Jan. 25 speech, Leahy vowed to hold hearings on such controversial nominees as 5th Circuit nominee Priscilla Owen, D.C. Circuit nominee Miguel Estrada, and 10th Circuit pick Michael McConnell. The liberal coalition, which includes such groups as NARAL, the National Women’s Law Center, and the Leadership Conference on Civil Rights, has not said much lately about Estrada or McConnell. But Owen, as well as 9th Circuit nominee Carolyn Kuhl and 6th Circuit pick Jeffrey Sutton, seems likely to face formal opposition. At the Jan. 24 press conference, Alliance for Justice President Nan Aron took care to distinguish between “unqualified candidates with controversial records” such as Pickering, and noncontroversial Bush choices. That same day, the Senate Judiciary Committee held hearings for six judicial nominees who have drawn no opposition, including Richard Leon, nominated to the U.S. District Court for the District of Columbia. “The president must understand that when he sends to the Senate experienced, moderate candidates, he will have the support of the Senate and the American people,” Aron declared. On the other hand, Aron said, Pickering “represents just the first threat to turn back the clock on rights all Americans rightly enjoy.” At the press conference, NARAL President Kate Michelman said Pickering came first simply because “he is the most controversial nominee to date who has received a hearing.” That relatively unpublicized event took place Oct. 18 at the height of the anthrax scare on Capitol Hill. Pickering was denounced for a student law review note he wrote in 1959, explaining how Mississippi could strengthen a law then on the books that prohibited interracial marriages. He also drew fire for supporting a constitutional amendment to overrule Roe v. Wade when he was a Mississippi legislator in the 1970s. The civil rights groups also claimed that as a federal trial judge for the last 11 years, Pickering has often revealed distaste for the Voting Rights Act and other civil rights laws, and routinely ruled against plaintiffs in discrimination cases. “His positions leave us little alternative but to oppose his nomination,” said Wade Henderson, executive director of the broad-based Leadership Conference on Civil Rights, at the press conference. “These positions ought to disqualify him for any federal circuit court, all the more so for the 5th Circuit, which has more people of color than any other.” But supporters of Pickering find little merit in the criticisms. “When you look closely at the objections, there’s nothing there. He is committed to following the law and Supreme Court precedent,” replies John Nowacki, deputy director of the Center for Law and Democracy, a conservative group active on judicial nominations. “The law review article was three and a half pages of academic analysis, and Pickering says he wouldn’t support the statute today.” Pickering’s supporters also note that he has served on the board of directors of the Institute for Racial Reconciliation, a biracial project established in 1999 by the University of Mississippi to come to terms with the state’s history of racism. NEXT IN LINE? While the liberal activists only targeted Pickering, they suggested another candidate that they may well end up opposing. “One doesn’t have to look any further than the other nominee named to fill a second vacancy on the 5th Circuit bench to see how the rights of minorities and women may be threatened,” Aron said. That person is Owen, a Texas state judge who, like several other controversial Bush choices, was nominated last May and has not had a hearing. Until now, Owen’s selection has not drawn the publicity that has surrounded selections such as Sutton or Estrada. Owen, a partner at Houston’s Andrews & Kurth before winning election to the Texas Supreme Court in 1994 and again in 2000, is criticized for repeatedly ruling against permitting minors to have abortions without parental consent. Ten such cases came before the court under a new Texas law in 2000. In one of those cases, she was in the minority, and Alberto Gonzales, then a fellow judge on the court and now White House counsel, said the dissenters’ view was “an unconscionable act of judicial activism.” The Alliance for Justice Web site says that Owen’s record “strongly suggests a strain of conservative judicial activism.” A Bush administration lawyer responds that the key criterion for prospective judges is that they must be “advocates of judicial restraint, the notion that judges should follow the law. “As far as we’re concerned, whether you are pro-choice or pro-life is irrelevant,” this lawyer says. “If groups wish to impose a political litmus test on abortion, then we are just talking past each other. We see a person’s policy views as completely irrelevant.” Owen made the news last week when it was disclosed in The New York Times that in 1996, she wrote the opinion in a 7-0 ruling that saved the Enron Corp. about $220,000, after she had accepted campaign contributions from the now-bankrupt company. In a position paper handed out at the Jan. 24 press conference, People for the American Way singled out two other Bush nominees who “have troubling records and could cause serious damage to our rights and liberties.” These were Sutton and Kuhl. Kuhl, a state judge in Los Angeles since 1995 and a former clerk for then-9th Circuit Judge Anthony Kennedy, drew scrutiny for work she had done while in the solicitor general’s office from 1981 to 1986, during the Reagan administration. PFAW said Kuhl urged the Supreme Court to overturn Roe v. Wade in Thornburgh v. American College of Obstetricians and Gynecologists, a 1986 Supreme Court case. PFAW also claimed that Kuhl “reportedly played a key role in convincing then-Attorney General [William French] Smith to support tax-exempt status for racially discriminatory Bob Jones University.” Charles Cooper of D.C.’s Cooper & Kirk, who worked with Kuhl at the Justice Department, terms these descriptions “unfair” and “grossly incomplete.” Cooper says that as a 28-year-old special assistant to the SG, Kuhl “wasn’t making policy, she was taking notes — when she and I were even in the room.” Besides, says Cooper, whether the Internal Revenue Service had the legal right to deny tax exemption to Bob Jones was in fact a “tough legal issue” — the Supreme Court took it up and ruled 8-1 against the SG’s position that the IRS had no such right — and the Reagan administration in any case wanted to amend the tax code to deny the exemption. On abortion, Cooper says, “I don’t even know her personal view on abortion. But I hope we haven’t come to the point where a nominee is disqualified because they take a certain interpretive approach to the due process clause.” Sutton, PFAW said, has worked to “severely limit federal protections against discrimination and injury based on disability, race, age, sex, and religion.” In Alabama v. Garrett, a 5-4 Supreme Court ruling last year, the 41-year-old Jones, Day, Reavis & Pogue partner successfully argued on federalism grounds against the application of the Americans With Disabilities Act to the states. Several disability-rights groups have announced opposition to Sutton, and he has tried to mend fences with the disability community. Supporters say that Sutton, like other Bush nominees, should not be pilloried for advocating the position of his clients. Says Cooper: “It is the very definition of ‘extreme’ to focus on a case that involved successful advocacy of a client’s cause in the Supreme Court. If that is what the opposition has come to, it is very sad.”

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