Chuck’s Game: Plans to Block Bush’s Judge

Shortly after the Democrats were defeated in last year’s midterm elections, Senator Charles Schumer sent a memo to Senate Majority Leader Tom Daschle.

The Democrats had become a “legislative party,” Mr. Schumer wrote, a party of compromisers who no longer knew how to connect with the national electorate. The Democrats needed to redefine themselves to the American people by picking a few bedrock issues and fighting hard to put their stamp on them. The list included homeland security, health care, energy independence, tax reform and, finally, one that was perhaps less basic, but of particular interest to Mr. Schumer: ideology in the federal judiciary.

Now Mr. Schumer has found the opportunity to put his plan into effect.

Since the surprise announcement on Jan. 7 that the White House would renominate Judge Charles Pickering to the Fifth Circuit Court of Appeals, Mr. Schumer has pledged to kill the nomination. With his vow to do whatever it takes to block Mr. Pickering-an ally of Trent Lott who was rejected last year by the Democrat-controlled Senate Judiciary Committee-Mr. Schumer has propelled himself into the center of what promises to be one of the most racially charged and visceral partisan battles of the new session. It’s the opening Mr. Schumer has been waiting for.

“I believe the hard right has come to the conclusion at some point that they were never going to get their way with the elected branches of government,” he said in an interview with The Observer . “So they found another way-the judiciary.”

Mr. Schumer, who used his seat on the Judiciary Committee to help doom Mr. Pickering’s chances last year on the grounds that he has a shabby record on civil rights, charged that the appointment was part of an implicit pact between the White House and its conservative supporters. “I think the right has a deal with President Bush,” he said. “They’d leave him alone on most issues, but he’d have to make hard-right ideological appointments to the bench.”

In the days after the White House announcement, Mr. Schumer opened up a fierce assault on Mr. Pickering, invoking some of the most vivid and scary imagery of the segregated South. He called a press conference to charge that Mr. Bush’s nominee had “intervened on behalf of a convicted cross-burner” and said the nomination showed that “Richard Nixon’s Southern strategy is still alive and well in the White House.” He vowed to “do everything [he] can” to block the appointment. And he cast the skirmish over Mr. Pickering as a part of something much larger: an attempt by conservatives to seize control of lawmaking by packing the courts with activist conservative judges.

The Republican leadership contends that Mr. Schumer is engaging in demagoguery in order to court minority voters and attract attention to himself. “What Schumer is doing with this nomination is just politics at its worst,” said Dan Allen, spokesman for the National Republican Senatorial Committee. “It reminds me of that joke in Washington about the most dangerous place being between Chuck Schumer and a camera.”

The joke, in this case, alludes to the Mr. Schumer’s well-known penchant for calling attention to himself, and the fact that it’s almost certainly not lost on him that taking the lead in this fight will raise his profile across the country. And just as significant to Mr. Schumer-who’s almost pathologically attentive to the needs and moods of his constituents-is the attention that a high-profile role in the Pickering fight is likely to bring him in liberal New York.

“Overwhelmingly, New Yorkers would support my stand on Pickering,” said Mr. Schumer. “I think New York Republicans would support me on Pickering.” Mr. Schumer comes up for re-election in 2004, a proposition for which he is already fund-raising assiduously.

In some respects, Mr. Schumer’s role in the Pickering affair represents a throwback to his days in the House of Representatives, when he made a national name for himself as a partisan warrior on such highly charged national issues as gun control and abortion. It became almost a point of pride with him that he was a prominently featured villain in National Rifle Association circles. But after his graduation to the Senate in 1998, Mr. Schumer made a point of stressing his ability to work with his fellow Senators, introducing legislation in his first year that was co-sponsored by stalwart Republicans like Phil Gramm, and focusing the bulk of his energy on nuts-and-bolts local issues.

Now, however, there are already signs that his provocative position on the judiciary could once again make him the politician the right loves to hate. In what is doubtless a taste of things to come, The Wall Street Journal ‘s editorial page took Mr. Schumer to task on Jan. 10 for “playing the race card” and “smearing Judge Pickering as racist in order to smear Republicans as anti-black.” The editorial also noted that the only successful filibuster against a judicial appointment was conducted back in 1968 by none other than Strom Thurmond. “Call him Strom Schumer,” the piece concluded. (It was Trent Lott’s remarks in praise of Mr. Thurmond that kicked off the current round of anguished debate about racial sensitivity in the Republican Party; one can only conclude that the irony is intentional.)

In the interview, Mr. Schumer seemed uneasy with the idea that he was going to be vilified by the right again. “I’m not sure I’m a big enough fish to be demonized,” he said, somewhat unconvincingly.

A Liberal Bias?

As for the latest attack, “I used to read [ The Wall Street Journal ‘s editorials] to keep me honest,” said Mr. Schumer, “but they’ve just become so ideological. As usual, they left out the major facts.” He cited in particular the details of Mr. Pickering’s interventions on behalf of the cross-burner.

“It’s no wonder The Wall Street Journal writes, ‘We hoped we would get to stop writing about judicial politics,'” Mr. Schumer continued. “We know why: It’s because they wanted Bush’s choices to march through unimpeded, so the hard right will achieve its goal and capture the third branch of government-not for a few years, but for a generation.

“You know, they say the press has a liberal bias, and maybe it does. But it doesn’t have a pointed bias. There’s no concerted effort to move an agenda, or to write things [like this] that are for the good of the cause.”

Last year, Mr. Schumer and the other Democrats on the Senate Judiciary Committee cited Mr. Pickering’s dealings with a pro-segregation group in the 1970’s and his unusual intervention to reduce the sentence of a convicted cross-burner in 1994, among other things, as evidence of an unacceptably poor record on civil rights. Their portrayal of Mr. Pickering as an inveterate racist was so brutal that the otherwise anti-Pickering Washington Post editorial page lamented it as a “degradation of the confirmation process.”

But Mr. Schumer, who has said in the past that he would like to see ideology given greater consideration in the confirmation of judges, seems disinclined to go any easier on Mr. Pickering this time around. “For years, the federal courts served as the shield protecting basic civil rights in this country,” Mr. Schumer said in his press conference. “This administration wants the courts to become the sword that destroys those rights.” He said that the attempt to appoint Mr. Pickering was merely the “tip of the iceberg.”

The potential for a dramatic, high-profile standoff is only heightened by the fact that the Democrats are now the minority party in the Senate. With the new Republican majority, the most likely way that Mr. Pickering’s confirmation could be blocked will be through a filibuster, an idea for which Mr. Schumer has said there is wide support among his fellow Senate Democrats. (Pro-Pickering forces would have to muster 60 votes to end the debate. No date has yet been set for a hearing.)

The leadership of the Republican Party is defending Mr. Pickering’s record. They note, among other things, that he once testified against the Ku Klux Klan in the 1980’s. Ken Lisaius, a White House spokesman, said, “These accusations ring hollow to anyone who independently reviews the facts and studies the records of these individuals. The [White House nominees] have each earned bipartisan support, and they all meet the highest standards of judicial integrity and fairness.”

However this fight affects Mr. Schumer, it’s even less clear how it will work out in the context of his larger plan for the Democrats. Although he says that his party lost in part because it lacked a message aimed at ordinary voters, he also conceded that the role of ideology in the judiciary is by far the most esoteric of those issues he has urged the party to adopt as its signature issues.

“I’m well aware that the question of whether or not ideology matters in judicial appointments is hardly going to be the subject of heated conversation in O’Halloran’s pub,” he said.

Judging by the Democrats’ disappointing showing in the midterm elections, it would be hard to argue that last year’s obstruction of the nominations of two federal judges was a winning political issue. In addition to Mr. Pickering, there was Judge Priscilla Owen of Texas, who was deemed to have injected personal opinions about abortion into her decisions.

“Maybe this strengthens Schumer in New York, where you have an audience that’s somewhat receptive to that sort of incendiary, chest-beating liberalism,” said Republican strategist Rick Wilson. “I think the Democrats are just looking for any port in a storm right now as far as what they can do to re-energize their base. Certainly one of the most parochial issues for them is race. Now they’re trying to characterize this guy-because he opposes their precious racial set-asides-as David Duke. But for the average American, the ungodly esoterica of Charles Pickering is unlikely to cut one way or another.”

For now, though, such considerations seem beside the point for many Democrats in Washington. Gregory Meeks, a Queens Congressman and a whip for the Congressional Black Caucus, called the Pickering nomination “a deliberate and premeditated effort to roll back civil rights to the times of Strom Thurmond.”

Mr. Meeks, for one, made it clear that he thinks Mr. Schumer has picked the right issue to fight on. “There are two ways of being a Senator,” said Mr. Meeks. “Either you can be happy and content to be in the Senate, or you can be a leader. Chuck is showing that he wants to be a leader.”