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The Free Congress © Commentary:

Comparing Two Federal Court Recess Appointments
By Marion Edwyn Harrison, ESQ.
January 30, 2003


President Bush, pursuant to his unquestioned and unquestionable constitutional power, has granted a recess appointment to Judge Charles W. Pickering. Thus, for about eleven months, unless confirmed or reappointed, Judge Pickering is "elevated," as attorneys are wont to say, from the United States District Court for the District of Mississippi to the United States Court of Appeals for the Fifth Circuit. The coterie of assassins Senators which can't gain 50 votes to defeat a Bush nominee according to custom and Senate Rules but can rustle 41 votes to keep alive a filibuster is beside itself with rage and feigned rage.

About three years ago then President Clinton, pursuant to the same unquestioned and unquestionable power, granted a recess appointment to a Richmond, Virginia lawyer, taking him from private practice directly to the United States Court of Appeals for the Fourth Circuit. The same senatorial coterie was beside itself with compliments, commendations and the usual series of plaudits when a liberal Democratic President appoints a Black (unless he/she is conservative) to something important. (President Bush thereafter nominated him.)

Judge Pickering has been the victim for two years of vicious personal attack, supposedly because he is "racist" - and, of course, one of the "Neanderthals," as the scholarly Senator Kennedy so graciously terms Bush judicial nominees.

What specifically did Judge Pickering do wrong? He gave a sentence considered too light to a defendant of the Ku Klux Klan stripe. Did he violate a sentencing guideline, much less a statute or federal rule? No. Does he have a long record, predating his judicial service, of opposing - even prosecuting - the Klan and Klan types? Yes. Did he send his children to segregated private schools in Mississippi when so many Whites did to avoid integrated schools? No. What generally did Judge Pickering do wrong? White, Southern, Republican, successful legal career before his first judicial appointment, father of a conservative Mississippi Republican Congressman, supported by the NAACP in Mississippi and warmly, very vocally, endorsed by the late Medgar Evers' activist Black brother - a combination apparently so unacceptable that such a man cannot be an appellate judge.

What did the Richmond lawyer, now Judge Roger L. Gregory, specifically do so right? He chose as a mentor and law partner former Virginia Governor L. Douglas Wilder, Virginia's first Black (and generally considered quite able) Governor and managed himself to be born Black, thus lucking into the undoubted judicial qualification of becoming the first Black Judge on the Fourth Circuit (which covers the Carolinas, Maryland, Virginia, West Virginia). What generally did Judge Gregory do right? He made it through law school, less than a distinguished record, is liked by those who know him, could evolve into an able Judge.

It must be reassuring to those people who seek an activist and leftist Federal Judiciary to know that the recess route is sound when the nominee is a likeable Gentleman of Color who could become an able Judge but that the recess route is an abomination when the nominee is a Caucasian who is an able Judge.

Surely, if 41 - and occasionally more - Senators were undergoing voir dire to serve upon a jury, they would be stricken for cause.

Marion Edwyn Harrison is President of, and Counsel for, the Free Congress Foundation.

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