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The American people need to know what the battle over judicial nominations is really about. It is not simply a struggle for power between the Senate and the White House. It is not a childish exercise in payback for Bill Clinton’s troubles with a Republican Senate. It’s not about process or procedure; it’s about content. And this time the content is the soul of the federal judiciary. The Bush administration understands the strategic importance of judicial appointments in carrying out the president’s agenda and long-term goals. Borrowing a page from previous Republican presidents, the Bush administration moved quickly to leave its imprint on the federal judiciary. Starting with White House Counsel Alberto Gonzalez’s swift decision to expel the American Bar Association from the judge-picking process, this administration has moved to take advantage of the goodwill a new president normally enjoys early into his tenure. Three and a half months after Bush was sworn in to office, his first nominees were selected. Now if the Senate were to rubber-stamp those and later nominees, what a sad legacy George Bush would leave for the country. The administration is living up to its promise to move the judiciary to the right. With too few exceptions, its appellate court nominees are ideologues far out of the mainstream on issues about which there is broad consensus in this country. Their records exhibit an aggressive hostility to civil and women’s rights and to environmental, consumer, and workplace protections. Providing pro bono legal services has not been a big part of their lives. Instead, their resumes describe the large corporations, wealthy industries, and right-wing causes they represent. Several belong to the Federalist Society, a group pledged to overturn hard-fought rights and consumer gains of the last several decades. A LEANING JUDGE The Senate Judiciary Committee is about to take up one in a series of controversial nominees. Charles Pickering, now a U.S. district judge in Mississippi, has been nominated to the U.S. Court of Appeals for the 5th Circuit. Interestingly, Pickering, 64, has already received one hearing before the Judiciary Committee — in October 2001. Now the committee is calling him back for another look. The view is not good. Pickering has a record on race issues that demonstrates a consistent lack of support for — and arguably an outright hostility toward — efforts to remedy racial injustice. As a student in 1959, he published a law review article recommending ways to strengthen Mississippi’s ban on interracial marriage; shortly thereafter, the legislature amended the law as Pickering had recommended. As a state senator from 1972 to 1980, he cast several votes to impede the full extension of electoral opportunities to African-Americans. As a federal trial judge, Pickering has taken troubling positions on the Voting Rights Act and injected personal views into his opinions that call into question his willingness to deal fairly with race-related cases. In one Voting Rights Act dispute, he wrote, “This case is simply another of those which demonstrates that many citizens have come to view the federal courts as a potential solution for whatever problem comes along.” In another, he criticized the creation of majority-black districts because “there is going to be less and less accommodation, less and less effort to resolve differences by reason and logic and more and more polarization.” In a constitutional voting rights case, he criticized the one-person one-vote doctrine as “obtrusive.” In a racial discrimination case, he remarked, “This case has all the hallmarks of a case that is filed simply because an adverse employment decision was made in regard to a protected minority.” Through these and similar comments he reveals disdain for the problems of discrimination that continue to plague our society. Pickering’s record also suggests a strong opposition to reproductive freedom. As a state senator, he voted for a constitutional convention to overturn Roe v. Wade. As a Mississippi Republican Party official, he chaired the platform subcommittee that called for a constitutional amendment banning abortion. On the bench, Pickering’s opinions raise questions about his judicial temperament and commitment to fairness. In 11 of his 99 published opinions, he included extraneous sections — ranging from one paragraph to almost seven pages of an 18-page opinion — criticizing the state of the law, the actions of other unnamed judges, society in general, or the losing party, calling into question his ability to distinguish between the law and his personal opinions. In several habeas corpus cases, he stated that federal courts should grant habeas petitions only if a prisoner could prove actual innocence. In other cases, he criticized federal courts for creating rights or society for being too litigious. Finally, Judge Pickering’s 11-year record is one of gaping holes. A major reason for the Judiciary Committee’s decision to call him back again is his large number — more than 1,000 — of unpublished opinions. When asked at his October hearing why he had chosen to publish fewer than 10 percent of his opinions, Pickering said that while he published more when he first took the bench, “the novelty wears off.” He also said that “there is too much being written out there.” The senators are understandably determined to get a better sense of what Judge Pickering has been writing. A TILTED COURT Even without Pickering, the 5th Circuit today is well known for its bias against civil rights and reproductive rights. Presidents Ronald Reagan and George H.W. Bush placed some of the most zealous ideologues in the country on this circuit. (Yet, historically, the court had led great advances in social justice. President Dwight Eisenhower’s appointees to the old 5th Circuit left an indelible mark on American law and society.) If confirmed, Pickering will surely prove a reliable ally in moving the 5th Circuit further to the right and far out of step with mainstream Americans. Of course, the 5th Circuit’s inability to grasp the injustice facing civil rights plaintiffs should not surprise us. Although the three states that make up the 5th — Texas, Louisiana, and Mississippi — contain the highest concentration of minorities of all the circuits, the court boasts only one African-American and two Hispanic judges. (Charles Pickering would not add to that total.) Yet the lack of minority judges has certainly not been due to a lack of 5th Circuit vacancies. Throughout the Clinton presidency, the court experienced severe backlogs due to unfilled seats. In 1999, it was declared to be in a state of emergency. Despite the unmet need during the 1990s, Mississippi Sen. Trent Lott (who was then the majority leader and is now the minority leader) went along with efforts by Texas Sens. Phil Gramm and Kay Bailey Hutchinson to block two eminently qualified Hispanic candidates for the 5th Circuit — Enrique Moreno, who never received a hearing, and Jorge Rangel, who finally withdrew his name from consideration. Today, Lott is suddenly in a big hurry to address this emergency — and secure a seat for his old friend and political ally Pickering. (Pickering is also the father of Rep. Charles “Chip” Pickering Jr.) We need fair, compassionate, and wise judges. We need judges who are not reluctant to publish opinions because they know their reasons will stand up to scrutiny. And we need a Senate willing to take its constitutional role seriously and look hard at every nominee to the federal bench. Senate confirmation is our last opportunity to ensure that all federal judges are truly qualified for their lifetime appointments. There are no second chances. Putting judges on the bench who favor big business over little people, who will roll back hard-fought civil rights, reproductive freedoms, and consumer, worker and environmental protections, would be not only an abdication of duty by our officials, but a great injury to all Americans. President Bush should consider this as he makes his judicial selections. Nan Aron is founder and president of the Alliance for Justice, a national coalition of civil rights, consumer advocacy, mental health, women’s, children’s, and environmental organizations.

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