Bush's naming of Pickering to the federal bench was the first time since President Jimmy Carter that a recess-appointment procedure has been used to appoint someone to an Article III judgeship, according to the Congressional Research service, an arm of the Library of Congress. The action by the president escalates to new levels the battle for control of the federal judiciary, which both liberals and conservatives see as the main source of power in an age when congressional power has been weakened and the courts have increasingly legislated from the bench.
Liberal Democrats, who have used the courts to impose policies and an ideology on the country they know would never make it through Congress (and if it did, it might cost legislators reelection), are now in a panic because they who have lived by the courts may be about to die by the courts as more judges who believe in the "original intent" of the Founders make it to influential benches.
The Pickering appointment is good only until the end of this Congress. But just the fact that President Bush would follow through and name Pickering after criticizing the Senate for its preoccupation with politics is an indication Bush feels increasingly confident about his political strength and his ability to stand up to the Democratic leadership and its civil rights lobby.
Pickering was unfairly smeared as a racist for simply following the law in a civil rights case liberals thought should have turned out differently, and for a 40-year-old article he wrote defending Mississippi's anti-miscegenation laws, when the state was a different place and Pickering was a different person. This disagreement should not have been enough to deny a highly qualified judge the federal bench. Thanks to President Bush, Pickering has the job, at least for most of this year. If the Senate doesn't confirm him - it seems unlikely that it will - he will have to leave the bench.
The president should use the Pickering case and the reshaping of the judiciary (not to mention his need for more Republican senators) as central parts of his reelection campaign.
Cal Thomas is co-author (with Bob Beckel) of the book, "Common Ground: How to Stop the Partisan War That is Destroying America".
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