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Pickering Won’t Show For His Day in Court

Setting the stage for what could become the most heated nomination fight to date, Senate Republicans have decided to move ahead with a hearing on Charles Pickering’s circuit court bid, but the U.S. district court judge is not expected to attend the hearing himself.

The move seems certain to lead to the third simultaneous Democratic filibuster of one of President Bush’s judicial nominees.

Supporters from Pickering’s home state of Mississippi are expected to speak on behalf of his bid to the 5th U.S. Circuit Court of Appeals, while a contingent of opponents to his nomination are also expected to make their case.

Sen. Trent Lott (R-Miss.), a friend of Judge Pickering’s for more than 30 years, said the timing of the hearing is still up in the air, and aides said it wouldn’t likely happen until after the Memorial Day recess. “It may slip off ’til June,” Lott said Tuesday.

“The idea is to hear from some of Judge Pickering’s supporters,” said Majority Whip Mitch McConnell (R-Ky.), a member of Judiciary.

Congressional aides cautioned, however, that the hearing notice hasn’t been published and therefore, no format for the Pickering hearing has been officially established yet.

This comes as Lott has been thrust into the thick of judicial nomination battles, with Majority Leader Bill Frist (R-Tenn.) sending a proposal to reform the process to Lott’s Rules and Administration Committee.

Lott, who took over Rules after he was ousted as GOP leader in December, has tentatively scheduled a hearing for June 5 to examine Frist’s proposal for doing away with unending filibusters of judicial nominees. Later in the month he expects to hold hearings on a proposal from Sen. John McCain (R-Ariz.) to limit legislative earmarks on appropriations and a hearing on a proposal by Sen. Ron Wyden (D-Ore.) to do away with the so-called “hold” provisions that allow a single Senator to put the brakes on nominations or legislation.

“I’m looking for work so I’m looking at rules. We’re either going to get some reforms or we’re going to have some fun looking at this,” Lott said.

Frustrated by a pair of Democratic filibusters of judges — and with more pending — Republicans hope to change the rules on judicial nominees, although the vast majority of Democrats have expressed little interest in reforming the process.

Frist has modified a proposal offered by Sen. Zell Miller (D-Ga.) which would allow just four cloture votes on nominees. Then, a simple majority would be needed to confirm a judge. This option, according to GOP aides, places some Democrats in a slight bind: It’s modeled on a proposal offered by Sens. Tom Harkin (D-Iowa) and Joe Lieberman (D-Conn.) in the mid-’90s. Lieberman is one of three current Democratic White House candidates, including Sens. John Kerry (Mass.) and Bob Graham (Fla.), who previously supported this provision.

With the Democratic base of Hispanic groups, the NAACP, women’s rights organizations and others firmly behind the judicial filibusters, it’s unlikely any of the presidential contenders would support the current effort to limit filibusters.

A rules change would require a two-thirds majority on the floor, a high hurdle. Republicans have also considered the option of trying to get a ruling from the chair that it is not constitutional to filibuster executive branch nominations, which, once done, would require just a simple majority vote to uphold, assuming Democrats immediately challenged the ruling.

Some have called this the “nuclear option,” because Democrats have warned of the “fallout” that would occur due to such a risky maneuver. Some aides have also called it the “Incredible Hulk” option — assuming Sen. Ted Stevens (R-Alaska), the President Pro Tem, would be in the chair at the time. On crucial days, Stevens often wears a tie with the Incredible Hulk cartoon character emblazoned on it to put himself in the proper frame of mind.

GOP Senators and aides, however, indicated that the decision to go the “nuclear” or “Hulk” route is still a ways off, and that Rules would first have to do its work on attempting to change the floor procedures.

In the short term, there’s no sign of immediate relief from the filibusters of the nominations of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit or Texas Supreme Court Justice Priscilla Owen’s bid for a seat on the 5th Circuit.

Sen. Charles Schumer (N.Y.), a senior Democrat on Judiciary, has already pledged to filibuster Pickering.

The New Yorker scoffed at the idea that Judge Pickering wouldn’t be on hand to testify at his own hearing.

“That says something, doesn’t it?” he said.

Republican aides, however, noted that Pickering has already had two hearings, testifying before Judiciary in the fall of 2001 and again in February 2002. In March 2002, the Democrats, then holding a one-seat edge on the panel, voted him down along partisan lines, the same margin they used to vote down Owen last fall.

Republicans had considered not holding a hearing on Pickering at all, noting that both sides had already heard plenty from the judge. But last week Judiciary Chairman Orrin Hatch (R-Utah) told Roll Call that a hearing was necessary for the politics of the fight, predicting an unrelenting attack from Democrats and their interest groups if he didn’t hold one.

The new scenario, without Pickering but with those who know him testifying, appears to be a compromise approach for Republicans. By tradition, the majority party would be allowed to have a 2-1 advantage in witnesses.

Having character witnesses at a judicial nomination hearing is not unusual, although the practice is almost always reserved for Supreme Court nominations. With lower-level nominations, standard procedure is for the home-state Senators to introduce the nominee to the committee.

The judge’s son, Rep. Chip Pickering (R-Miss.), has been trying to line up support for his father ever since Bush renominated him Jan. 7, meeting with black leaders in Mississippi and Democratic Senators on Capitol Hill.

His efforts helped win over one convert, Mississippi state Rep. Phillip West (D), the chairman of the Mississippi Legislative Black Caucus and a previous opponent of Judge Pickering’s nomination. Chip Pickering and Judge Pickering met with the state’s Legislative Black Caucus in February, and last week West came out publicly in support of the nomination, although his position doesn’t represent the entire caucus.

West is not expected to be in Washington to testify on Pickering’s behalf, but Lott did promise an “interesting group” of Democrats and black officials from Mississippi would testify for Pickering.

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