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With a fractious and drawn-out debate brewing over the nomination of Charles Pickering Sr., many players are criticizing the Bush administration as weak and ineffective in its efforts to shore up its embattled judicial nominee. Members of both parties say that liberal groups and Democratic senators opposing Pickering have set the tone of the debate and that the administration has been repeatedly outflanked, endangering the Mississippian’s chances of gaining confirmation to the 5th U.S. Circuit Court of Appeals. The impact could go well beyond Pickering. Several other nominees are facing stiff opposition from Democrats — from 3rd Circuit nominee D. Brooks Smith, grilled by Democrats at a hearing last week, to 6th Circuit nominee Jeffrey Sutton. So far, Senate staffers and conservative judicial activists say they see little evidence of the hard-headed lobbying and vote-counting that they expect from the White House and the Department of Justice. An administration official says the criticisms are being taken seriously. “No one in the administration is satisfied with our performance on Pickering,” this official says. “We are taking steps to try to improve the way we do things and to ensure that we can be as effective as possible, going forward.” On Pickering, the administration was, to a large extent, blindsided by a liberal onslaught. At a Jan. 28 press conference, a broad liberal coalition announced its opposition to the elevation of the Mississippi district judge to the appeals court and kicked off a major lobbying campaign. They criticized Pickering for his alleged insensitivity on racial issues, for some alleged ethical improprieties, and for his record of reversals by the appeals court he would be joining. Many say the White House has been stuck in a passive mode ever since. “I really don’t think there has been engagement,” says one D.C. lawyer close to the confirmation process. “The administration has been put into the position of reacting to whatever [Senate Judiciary Chairman Patrick] Leahy says. It’s as if they open their mail every day to look for a notice of execution” of one of their bench nominees. Says a Republican observer: “I think they were caught short by the ferocity of the opposition. The administration was not thinking strategically. They probably are now, in connection with other nominees. But I think the most likely outcome is that Pickering will be defeated.” Officials from President George W. Bush on down have repeatedly avowed their support for Pickering. But most of the ready responses to specific charges against the nominee have come not from administration sources, but from journalists at conservative outlets like The Weekly Standard and National Review. Eleanor Acheson, who as an assistant attorney general spearheaded the Clinton administration’s efforts on judicial nominees, attended the Feb. 7 hearing on Pickering and felt that the nominee was poorly prepared on some civil rights issues. Acheson says one of Pickering’s responses to a query from Sen. Edward Kennedy, D-Mass., was particularly harmful. Asked about his strong language in rejecting individual claims of racial bias in the workplace, Pickering said that the Equal Employment Opportunity Commission screens job bias cases and resolves the meritorious ones, so that many cases in district court lack merit. This response drew immediate flak from liberals. “At the hearing, it just did not look as if he had gotten any kind of experienced help as to how to make whatever his best case is before the Senate,” Acheson says. The Judiciary Committee, with 10 Democrats and nine Republicans, was expected to vote today on the nominee, but the vote was delayed by a week at the request of Sen. Orrin Hatch, R-Utah. It is the second time the vote has been postponed. Last week, the vote was postponed from Feb. 28 at the request of Minority Leader Trent Lott of Mississippi, a long-standing friend and leading supporter of Pickering. The Lott connection may be one of the reasons that the administration has not gone as far as it could go for Pickering. “It’s a pissing match with Trent Lott,” says one conservative lawyer. “They agreed to [post this nomination] as a favor to Lott. But now the White House has told Lott it has other things to do. ‘We agreed to nominate him, now you go get him confirmed,’ they say. And Lott hasn’t done that much either, considering his powerful position.” A Senate staffer agrees: “The White House views this as Lott’s choice, not theirs. At age 64, he doesn’t fit their view of the ideal candidate for the federal appeals court. And he is not an impressive candidate. So they feel they don’t have to fight hard for him.” WORKING THE HILL The attorney close to the confirmation process says the problem is not so much the nominee’s record or the link to Lott as it is the background of the people who are working the issue. The Department of Justice’s Office of Legal Policy (OLP), headed by Assistant Attorney General Viet Dinh, takes the lead for the Bush administration in confirmation battles on the Hill. This observer says that while Dinh is viewed as bright and hard-working, his past experience hasn’t given him the political savvy he needs in the delicate task of winning over Democratic senators. “It does not help that there’s no commonality of experience between Viet Dinh and the Senate Democrats,” says this observer, who notes that Dinh has limited Capitol Hill experience. “He also does not come across as a person with the gravitas that is needed, now that it has become clear that the Democratic Senate will fight on any nominee.” Dinh, 34, graduated from Harvard College and Harvard Law School and was a Georgetown University Law Center professor before joining the administration. He has Hill experience as associate counsel to the Senate Whitewater Committee and as impeachment counsel to Sen. Pete Domenici, R-N.M. Dinh declines to respond directly to the criticism. But an administration official says that Dinh and his OLP are not the only players on the stage. “The confirmation process draws a response from the White House Legislative Affairs Office, the Justice Department’s Legislative Affairs Office, the White House Public Liaison Office and others, in addition to OLP and the White House Counsel’s Office,” this official says. “We will fight the worthy fight and leave the finger pointing to others. “I think that the administration has stood in support of Pickering and has provided the support that he needs to rebut the unfair attacks,” says this official. Another official, however, says that while the administration’s performance “has been good, it could be much better.” “We are currently trying to address deficiencies in our effectiveness,” says this official. “It’s receiving a lot of high-level attention. There’s a widespread feeling that the attacks are unfair and also that we should have been more effective in beating them back.” This source declines to specify what steps the administration is considering to improve its response. Says a senior DOJ official: “There is a recognition that there needs to be a coordinated effort on these things. We need to get out ahead on them.” Meanwhile, Lott has said that Pickering may have to consider withdrawing if the votes aren’t there to confirm him, but administration officials and Pickering’s son, Rep. Charles Pickering Jr., R-Miss., indicate such a move is unlikely. The administration has been using the week-long delay in the committee vote as a chance to try to pick off any yet-undecided Democratic member. Assuming that the Republicans stay behind Pickering, just one Democratic switch on the committee would move the nomination to the floor, where the Republicans believe they can get a narrow vote for confirmation. In the case of a party-line 10-9 vote against Pickering, which appears likely, the White House has a fallback strategy. An administration official says that even if the committee rejects Pickering, the White House will argue that “at the very least, [the committee] should vote the nomination out and onto the floor without a recommendation or with a negative recommendation.” While there is precedent for such a move — two Reagan-era circuit court nominations were sent to the floor without a recommendation — Senate Majority Leader Tom Daschle has indicated he would not expect a nominee voted down in committee to make it to the floor. Lee Youngblood, Lott’s Mississippi press secretary, says the tide is turning in favor of Pickering. In Youngblood’s view, “the left has been backtracking over the last two weeks,” particularly because of reports indicating that Pickering enjoys strong support among African-Americans in his home state. But Youngblood also says that Lott’s office “is not coordinating this effort” to boost Pickering. “Sen. Lott supports Pickering, but his record speaks for itself.”

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