Does Recess Appointment Signal New Bush Tack?
WASHINGTON — President Bush escalated the fight over his stalled judicial nominees Jan. 16 when he made a one-year recess appointment of pro-life U.S. District Judge Charles Pickering to the 5th U.S. Circuit Court of Appeals.
The U.S. Constitution gives the president the power to circumvent the usual required Senate confirmation of nominees when Congress is in recess, but the appointment lasts only until the next session of Congress ends — although the president can then renew the recess appointment.
Pro-life leaders applauded Bush's move. Sen. Charles Grassley, R-Iowa, the second-ranking Republican on the Senate Judiciary Committee, told the Register that Bush should make a series of recess appointments.
“I would like to find a retired lawyer to fill in each interim appointment,” he said. “That would be extra-constitutional, not unconstitutional, but it's also extra-constitutional that for the first time in 215 years [judicial appointments] have been killed like this through filibusters.”
Senate Democrats are currently stalling six of Bush's most pro-life judicial nominees through filibuster — thus preventing Senate floor votes on whether to confirm or reject the nominees — and Pickering was one of those. Judicial nominees confirmed by the Senate serve for life.
Retired lawyers would need to be chosen, Grassley said, because potential nominees would not want to leave their current jobs for temporary appointments. Several experts said in interviews this was probably why Pickering was recess-appointed and the other stalled nominees were not: He is 66 and likely coming to the end of his career.
“You've got to have an offensive against the Democrats,” Grassley said in justifying the recess-appointment idea.
Fellow Judiciary Committee member Sen. John Cornyn, R-Texas, a pro-life supporter of Bush's nominees, was open to Grassley's proposal. “I think that's certainly within the realms of possibilities,” he said.
Both Grassley and Cornyn said it was unlikely that the Senate would rule, by majority vote, the filibusters unconstitutional — an idea advocated by some conservatives — because some Republicans would not vote for such an unprecedented step.
Pro-life activists were pleased by Bush's action.
“We do think it's outrageous the way these six people have been blocked,” said Douglas Johnson, legislative director for the National Right to Life Committee. “All the president's saying is, ‘Give them a vote.’”
Cornyn insisted that all six would be confirmed by majority vote if the Democrats’ filibusters could be broken. To do so, 60 out of the 100 senators must vote to end the filibusters.
Sen. Tom Harkin, D-Iowa, was displeased with Bush's act. “It should not have been done,” he said.
Harkin brought up the question of Pickering's civil-rights record and said: “I thought it extraordinary that the president goes to lay a wreath on Martin Luther King's tomb, and the next day he recess-appoints Pickering. That's sending mixed signals.”
Johnson noted that appeals-court judges, such as Pickering now is, could have a major impact.
“They are often the last word because the Supreme Court accepts so few cases,” he said, citing the recent 6th Circuit Court decision upholding Ohio's law against partial-birth abortion.
The Supreme Court has repeatedly affirmed a radically pro-abortion doctrine. But murkier areas such as euthanasia and religious freedom leave more room for appellate-court judges.
“A recent example is Free Thought Society of Philadelphia v. Chester Co., June 26, 2003,” said Richard Thompson, president and chief counsel of the Thomas More Law Center. “A federal district court ordered that a plaque of the Ten Commandments be removed from the facade of the county courthouse. The 3rd Circuit reversed the decision, and this was not appealed to the Supreme Court.”
Thomson also noted that time spent on an appeals court is “a career path to the Supreme Court.”
Phil Kent, former president of the Southeastern Legal Foundation, said the fights over judicial nominees have also led to “an educational process over the past year. People of faith are realizing that the courts are important.”
Sean Rushton, executive director of the Committee for Justice — which works to get Bush's nominees confirmed — said the other stalled nominees are unlikely to accept recess appointments.
“The others are younger people,” he said. “They're in good jobs.”
He said part of the goal of Democrats in blocking appeals-court nominees “is to communicate to the president that they have the will and the ability to filibuster and to intimidate him into not naming a good nominee to the Supreme Court.”
Taylor Gross, a White House spokesman, said there were no public plans to make more recess appointments. He noted that Pickering was first nominated on May 25, 2001.
“He's been waiting about two and a half years for an up-or-down vote on the Senate floor,” Gross said.
“[American Life League] started an ad campaign in October advocating recess appointments,” said Joseph Giganti, director of media and government relations for the American Life League. “It's not uncommon for recess-appointed judges to be confirmed permanently later.”
Pickering, a lawyer and politician from Mississippi appointed as a federal district judge in 1990 by the first President Bush, has a long record of pro-life activism.
“He's made it clear that he understands the sanctity of human life,” Giganti said.
Rated “well qualified” — the highest rating — by the American Bar Association and endorsed by some prominent black Mississippians, Pickering has nonetheless been denounced for his record on civil rights, pro-life and pro-religious statements.
He has been accused of not opposing Mississippi's segregation laws strongly enough as a young man and of taking a narrow view of civil-rights protections as a judge.
They have not been able to point to a case in which his pro-life views changed the outcome, but People for the American Way's dossier against Pickering says that as a state senator he “supported a resolution calling for a constitutional convention to propose an amendment to ban abortion.”
In addition, the dossier says, “In 1984, Pickering, then president of the Mississippi Baptist Convention, gave the president's address before the annual meeting of the convention in which he stated, according to the written text he has provided to the Senate Judiciary Committee, that the Bible should be ‘recognized as the absolute authority by which all conduct of man is judged.’”
The dossier also complains that Pickering encourages convicted criminals to seek religious guidance. In fact, Pickering, who is married with four children, has a long history of devoutly Christian and pro-life statements.
Joseph D'Agostino writes from Washington.
- February 1-7, 2004