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Last week, Charles Pickering sat in his chambers in Mississippi poring through briefs 4 inches thick in preparation for oral arguments in two cases that — if it were left to politics — he never would have heard. For two years, the U.S. district judge’s nomination to the 5th U.S. Circuit Court of Appeals has been stalled. But on Jan. 16, Pickering accepted a recess appointment to the 5th Circuit by President George W. Bush, bypassing the political turmoil on Capitol Hill that has prevented Pickering from taking a seat on the federal appellate court. But Bush’s other embattled 5th Circuit nominee, Texas Supreme Court Justice Priscilla Owen, remains in limbo. Article II of the U.S. Constitution permits the president to make judicial appointments when Congress is not in session. Presidents have made such appointments more than 300 times throughout the nation’s history. But the full Senate still must confirm Pickering. If senators take no action, his appointment will expire when Congress meets in January 2005, says David Sellers, a spokesman for the Administrative Office of the U.S. Courts. “I’m grateful to President Bush for his continued confidence and support,” Pickering says. “I look forward to serving on the 5th Circuit. “ And on Jan. 22, Pickering was in New Orleans sitting as a circuit judge. He sat with the full 5th Circuit to hear two cases en banc — U.S.A. v. Reginald Brigham, a Fourth Amendment search-and-seizure case, and Carlton Gaddis, et al. v. U.S.A., a case that will decide whether ad litem expenses can be assessed as a court cost. It wasn’t the first time Pickering had met his new colleagues. Pickering says many of the 5th Circuit judges are his friends. “We are very glad to have him,” says 5th Circuit Chief Judge Carolyn Dineen King. “He will be very helpful. “ Fifth Circuit Judge Rhesa Hawkins Barksdale swore in Pickering during a ceremony on Jan. 16 in Jackson, Miss., says Gregory Nussell, circuit executive for the 5th Circuit. Pickering fills a vacancy left by Judge Henry Politz, who died of cancer in 2002. Taking the recess appointment comes with its risks for Pickering, Nussell says. If the Senate doesn’t confirm Pickering’s nomination, he cannot return to his former job as a U.S. district judge for the Southern District of Mississippi, not even as a senior judge, Nussell says. “When he took his oath of office as a circuit judge, he relinquished his lifetime appointment on the district bench,” Nussell says. “And he may not return to that appointment. “ Pickering, 66, says he is qualified to receive his full retirement pay. In 1990, Bush’s father appointed Pickering to the U.S. district bench. Pickering served two terms in the Mississippi State Senate from 1972 to 1980; served as the chairman of the Mississippi Republican Party from 1976 to 1978; and served as president of the Southern Baptists in Mississippi from 1983 to 1985. Pickering has been targeted by liberal interest groups who oppose his view on abortion. During a Feb. 7, 2002, Senate Judiciary Committee hearing, senators also grilled Pickering about his record on civil rights. The senators, referring to a case the judge heard in 1994, asked Pickering whether he went out of his way to seek a lighter sentence for a defendant accused of cross-burning. Pickering denied the accusation. Those who know him best in Mississippi have supported his nomination to the 5th Circuit, Pickering says. “Having the endorsement of every statewide elected Democratic officeholder in the state and the support of so many — both black and white, both Democrat and Republican — who knew me best, and with whom I have worked, was both gratifying and a humbling experience,” Pickering says. NOT SO CERTAIN Don Stewart, a spokesman for U.S. Sen. John Cornyn, R-Texas, believes the president may have offered a recess appointment to another of Bush’s controversial 5th Circuit nominees — Owen — but she probably turned it down. Five of Bush’s circuit nominees, including Pickering and Owen, were voted out of the Senate Judiciary Committee last year by a party-line vote, but have been held up for a vote on the Senate floor as part of a Democratic filibuster. “I imagine the others were offered the same deal, but she [Owen] would have to give up her Supreme Court seat for an uncertain future,” Stewart says. Some Senate Democrats oppose Owen’s nomination because of her voting record on the Texas Supreme Court on issues such as abortion. Through a spokesperson, Owen declines comment. A White House spokesperson did not return a telephone call seeking comment before presstime on Jan. 22. However, Owen, 49, is in a different position in her judicial career than Pickering, who has had a long and distinguished political and legal career and is at retirement age, Stewart says. “I think he understands that there is a very high potential that he’ll face very strong opposition,” Stewart says of Pickering. “But he’ll have one year on the 5th Circuit, which is a pretty amazing thing. “ “If he doesn’t get confirmed, professionally, that’s a nice cap to his career, and he understands going in that it might not be permanent,” Stewart says. The other circuit court nominees “have either really good day jobs or they would rather wait for a permanent confirmation rather than have to fight it all over again.” Appellate lawyers who practice before the 5th Circuit doubt that Pickering, considered a reliable conservative judge, will change the complexion of an already conservative court. But Pickering will have to get up to speed quickly to make any impact, says Bill Boyce an appellate attorney and partner in Houston’s Fulbright & Jaworski. “It takes some time to get situated, develop relationships and find your equilibrium on the court,” Boyce says. “In light of the timing issues surrounding his appointment, maybe that would be a little more compressed for him.” Meanwhile, the controversy over Pickering’s appointment continues. Ralph G. Neas, president of the Washington, D.C.-based People for the American Way, calls Pickering’s recess appointment “absolutely outrageous.” But Kay Daly, president of the Washington-based Coalition for a Fair Judiciary, says that Pickering’s nomination had been stalled at the behest of “well-funded left-wing organizations.” “Pickering is a good man who will serve his country with distinction on the 5th Circuit Court of Appeals,” Daly says. Pickering declines to discuss why he took the recess appointment. But he does say that withdrawing his nomination was never an option. “To have withdrawn would have been to — in the minds of some people — give credence to the charges,” Pickering says. “And you just don’t give in to attacks like this.”

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