On May 25, 2001, during the 107th Congress, President George W. Bush nominated Pickering for a seat on the United States Court of Appeals for the Fifth Circuit vacated by Henry Anthony Politz who had taken senior status in 1999, but Pickering's nomination was not acted upon favorably by the Senate Judiciary Committee then under the control of Democratic senator, Patrick Leahy, a Vermont Democrat. Nevertheless, on January 7, 2003, President Bush renominated Pickering to the same position. With the Republicans now in charge of the committee during the 108th Congress, Pickering's nomination was voted out to the full Senate. With no way to stop his confirmation, the Senate Democrats chose to filibuster Pickering in order to prevent him from receiving a straight up-or-down confirmation vote.