Pickering

by Henry on January 16, 2004

“Jack Balkin”:http://balkin.blogspot.com/2004_01_11_balkin_archive.html#107428705909763064 on the Pickering appointment.

bq. I don’t have much of a problem with Bush appointing judges he believes in to recess appointments. Presidents should appoint the best people possible to the federal judiciary. My problem, rather, is that the fact that Bush believes so strongly in Pickering says something deeply troubling about Bush’s politics.

{ 10 comments }

1

gowingz 01.17.04 at 3:31 pm

What, like he really believes in them (his politics)?

Welcome to the future Theocratic States of Amerika…

2

Doug 01.17.04 at 5:16 pm

I’m left wondering if Balkin is just now figuring out that there’s a whole bunch of stuff about Bush’s politics that are way more than deeply troubling. Or maybe he’s doing some ultra-sophisticated understatement thing and making it look like he’s just now figuring out that there’s a whole bunch of stuff about Bush’s politics that are way more than deeply troubling. I dunno.

3

Thorley Winston 01.18.04 at 2:40 am

I don’t have much of a problem with Bush appointing judges he believes in to recess appointments. Presidents should appoint the best people possible to the federal judiciary.

In this case the nominee in question had a unanimous “well qualified rating” from the ABA and a lower-than-average (both nationally and within his circuit) rate of reversal – which is considered the “gold standard” for judicial nominees.

4

Jon H 01.18.04 at 6:59 am

I suppose we can look on the bright side – he didn’t appoint Judge Roy Moore.

5

Doug 01.18.04 at 12:07 pm

Thanks, Thorley, for parroting the Republican talking points. Yet another example of how this administration thinks that “advise and consent” means “rubber-stamp.” They see governing the way that Microsoft sees market share: 90% is not enough. When Republicans say they are not democrats, well, they’re finally telling the truth.

6

jam 01.18.04 at 4:53 pm

Perhaps Pickering was the only one who was willing to take a recess appointment. I read somewhere that he’ll be eligible for retirement in January 2005 when the recess appointment runs out. He may well feel that there’s no way he’s going to get a real appointment, that therefore he should retire in a year, and it’s better to retire from the higher court.

Other potential nominees may not have been willing for their careers to end in January 2005.

7

Jim Miller 01.19.04 at 1:05 am

As I explained at more length on my site, Pickering was probably chosen for this recess appointment mostly because he had such strong support in the Senate. That makes Bush’s infringing on Senate prerogatives less of an issue.

The vote to end the filibuster drew 53 votes, so Pickering would almost certainly have been confirmed had he gotten a vote.

The slander about Pickering’s career during the fight was particularly nasty, but something we have come to expect, particularly from the left.

Jam’s point that Pickering’s age had something to do with his recess appointment is probably correct, too.

8

Doug 01.19.04 at 9:31 am

Out of all the questionable, worrying or troublesome cases to come before Pickering’s court, out of all the possibly unjust outcomes of mandatory sentencing guidelines, the people he made his strongest push to help were cross burners.

He went all out to bend the law, intervened with the executive, got lawyers who practice in his court to write the Justice Department, and who did he choose to help? Who were the people Pickering thought most deserving of his judicial activism?

Cross burners.

And when does the current president choose to elevate a man who’s gone to great lengths to help these cross burners?

The Martin Luther King Jr. holiday weekend.

Anyone out there still wondering why Americans just don’t trust Republicans on race relations? Anyone?

9

Thorley Winston 01.19.04 at 2:54 pm

Doug Merrill wrote:

Thanks, Thorley, for parroting the Republican talking points.

In this case the definition of “Republican talking points” appears to be “discussing the nominee’s actual qualifications” rather than engaging in petty character assassination.

Yet another example of how this administration thinks that “advise and consent” means “rubber-stamp.”

In this case, it means “actually let the nominee come to the floor for an up or down vote.”

Out of all the questionable, worrying or troublesome cases to come before Pickering’s court, out of all the possibly unjust outcomes of mandatory sentencing guidelines, the people he made his strongest push to help were cross burners.

Actually, a better question in the Swan case is why did the Clinton Justice Department cut a deal to let the ringleader plead to a misdemeanor after he had already fired a gun into the home of the couple in question?

I am pretty much agnostic on mandatory minimum sentences (although I am generally opposed to the creation of a federal criminal code) but Doug Merrill is (unfortunately as usual) misrepresenting the facts when suggests that Judge Pickering had singled out cross-burners. According to the Village Voice (click on my name for the link to the article):

The Atlanta Journal-Constitution, realizing that Pickering’s “judicial reputation hangs almost entirely on one explosive case”—the cross-burning case—decided to extensively review that case and the rest of Pickering’s judicial record.

As reporter Bill Rankin wrote in The Atlanta Journal-Constitution on March 9, that paper concluded that

“Pickering—like many other federal judges who face rigid U.S. sentencing rules—has gone out of his way many times [as he did in the cross-burning case] to reduce prison sentences in cases where he thought the result would be unreasonable. And many of the defendants who benefited are black.”

The March 9 article by Rankin also noted that before being nominated to the Fifth Circuit Court of Appeals by the president:

Pickering, “in a 1999 essay on race relations in the Jackson Clarion-Ledger, addressed racial bias in the courts, empathizing with black, not white, concerns. He counseled whites who were angry about the recent acquittal of a black murder suspect to look at the justice system from a black perspective.

“While Mississippians may not realize that African-Americans are treated differently by the system,” Pickering wrote, “it is the truth and a most disturbing one if you are black.”

The Atlanta Journal-Constitution added that “as a judge, Pickering has thrown out only two jury verdicts, both times because he felt the verdicts were biased against minority plaintiffs.”

Based on this it would appear that Judge Pickering seems to be have questions about mandatory minimum sentences (as do many federal justices across the political spectrum) in general.

10

Thorley Winston 01.19.04 at 3:02 pm

Oh and just a reminder, Judge Pickering also has a unanimous “well qualified” rating from the ABA (their highest rating) and a reversal rate of about 0.5% (one of the lowest in both the nation and in his circuit) which is the “Gold Standard” for judicial nominees.

But as Doug established earlier, talking about a nominee’s actual qualifications (“Republican talking points”) has not been the goal of the Pickering opponents. Since they cannot touch him on those, they instead have to resort to character assassination.

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