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hasn't received much attention in the wake of Enron, the president's
budget, and the Axis of Evil, but this week Senate Democrats plan
to begin the first major judicial-confirmation battle of the Bush
administration. At issue will be the nomination of Charles W. Pickering
Sr., a 64-year-old federal judge in Mississippi picked by President
Bush to be on the Fifth Circuit Court of Appeals.
Pickering was
first appointed to the U.S. District Court by President George H.
W. Bush in 1990. He was unanimously approved by the Senate Judiciary
Committee and confirmed unanimously by the Senate as a whole. Now,
after amassing a record of more than 11 years on the federal bench,
he has received the American Bar Association's highest "well-qualified"
rating, but faces intense questioning from Democrats on the committee
— including some of the same Democrats who voted to confirm
him in 1990.
At confirmation
hearings scheduled for Thursday, Democrats plan to attack Pickering
on a familiar litany of issues: race, religion, and abortion. As
in past nomination battles, Democratic opposition has been preceded
by a publicity campaign against the nominee coordinated by liberal
interest groups. In this case, that campaign is being led by People
for the American Way (PFAW), which attacked Pickering's record in
a detailed report released January 24. "Achieving ideological
domination of the federal judiciary is the top goal of right-wing
activists inside and outside the Bush administration," PFAW
head Ralph Neas said when the report was released, "and judges
like Charles Pickering are the means to that end."
In 35 single-spaced
pages, the PFAW report levels dozens of accusations against Pickering.
They are worth examining in some detail because they suggest the
emergence of a new standard of opposition by groups fighting Bush
administration judicial nominees. Facing candidates for the bench
who have been carefully selected and vetted by the White House —
candidates without any obvious professional or personal deficiencies
— groups like PFAW have been forced to work more diligently
than ever to weave a tapestry of accusations that suggest that a
given candidate is "insensitive" or "indifferent"
to critical constitutional protections. In Pickering's case, PFAW
then argues that such alleged insensitivity constitutes a "troubling
pattern" of behavior that disqualifies Pickering for a place
on the federal appeals court. While the charge sounds quite ominous,
a close look at the case shows that there is little, if any, evidence
to support it.
Mississippi
Burning
The PFAW report begins with the issue of civil rights. While Neas
does not accuse Pickering of racism, he writes that Pickering's
record "does not demonstrate an affirmative commitment to civil
rights protections." Indeed, the report continues, Pickering's
record "reflects insensitivity and even hostility toward key
principles and remedies that now safeguard civil rights, and indifference
toward the problems caused by laws and institutions that have previously
created and perpetuated discrimination."
It is a painstakingly
worded statement, suggesting that PFAW has delved deep into Pickering's
history to discover alleged racial insensitivity. Indeed, a major
document in the nomination fight is a three-page law-review article
that Pickering wrote in 1959 as a 21-year-old freshman at the University
of Mississippi Law School. The article analyzed the language of
the state's ban on interracial marriage, but did not express either
approval or disapproval of the law itself. (At the time, 24 states,
mostly in the south and west, but also including Delaware, had such
laws.) Pickering wrote that Mississippi lawmakers made a technical
mistake in the wording of the law, which led to the reversal of
a 1942 conviction of a black woman who married a white man. Although
Pickering wrote that "recent decisions in the fields of education,
transportation, and recreation would cause one to wonder how long
the Supreme Court will allow any statute to stand which uses the
term 'race' to draw a distinction," he concluded that Mississippi
state lawmakers should correct the mistake in the wording of the
interracial marriage ban, "if [the law] is to serve the purpose
that the legislature undoubtedly intended it to serve."
The PFAW report
criticizes Pickering for failing to take the opportunity to express
moral outrage about the law. Pickering later said the topic was
suggested to him by a professor in the freshman law class and that
he wrote the article as an "academic exercise." In confirmation
hearings, Pickering told the Senate flatly that "who one marries
is a personal choice and that there should be no legislation on
that." Beyond that, it appears Pickering has made just one
other public statement on the topic of interracial marriage in the
43 years since the law-review article was published. In a 1991 case,
Pickering overturned a damage award given by a jury to a couple
who had sued the WalMart company. Pickering said he believed the
jury was biased against the couple because they were mixed race-
a white man and Asian woman. Saying the bias had led the jury to
set the award too low, Pickering ordered a retrial on the issue
of damages, which resulted in a larger award for the couple.
Another PFAW
criticism of Pickering on the issue of race concerns the question
of whether he ever had any "contact" with Mississippi's
racist Sovereignty Commission. The commission, which received state
funds, had been created to resist desegregation in the days immediately
following the 1954 Brown v. Board of Education decision.
It had its heyday in the 1950s and 1960s, fell into disarray in
the early 1970s, and was abolished in 1977. At his confirmation
hearings in 1990, Pickering told the Senate that, "I never
had any contact with [the commission] and I had disagreement with
the purposes and the methods and some of the approaches that they
took....This commission had, in effect been abolished for a number
of years. During the entire time that I was in the State Senate
[Pickering served as a state senator from 1972 until 1978], I do
not recall really the commission doing anything. It was already
de facto abolished. It was just not functioning."
The PFAW report
says that in fact Pickering had a brief conversation, in 1972, with
a commission staffer, and thus, contrary to his testimony, he had
indeed had "contact" with the commission. In the conversation,
Pickering is said to have asked the staffer for information about
a labor dispute in Jones County, Mississippi. It appears that Pickering
had, by the time of his 1990 confirmation hearings, forgotten about
the conversation, but in any event it appears the substance of the
conversation concerned not any sort of racial bias on Pickering's
part but rather his worries about violence committed by members
of the Ku Klux Klan. Chet Dillard, the former district attorney
of Jones County, has told the Senate Judiciary Committee that Pickering
was worried about a labor dispute at a Masonite plant in which "union
members who were also members of the KKK shot into and burned homes
in the middle of the night and brutally beat up workers....As a
state senator representing Jones County, Charles Pickering had every
reason to be concerned about further union violence involving the
Masonite plant in Jones County." Pickering's request for information
about the labor dispute is apparently the entirety of his "contact"
with the Sovereignty Commission.
The attacks
on Pickering on the issue of race have genuinely baffled his defenders.
They cite many actions on the issue of civil rights that contradict
the description of Pickering as "insensitive or even hostile
to key principles and remedies that now safeguard civil rights."
For example, it is widely known that in 1967, as a county prosecutor,
Pickering testified against Sam Bowers, an Imperial Wizard of the
Ku Klux Klan, in a case in which Bowers was accused of firebombing
the home of a civil-rights worker. According to a letter written
on Pickering's behalf by Charles Evers, brother of murdered civil-rights
activist Medgar Evers, "In 1967, many locally elected prosecutors
in Mississippi looked the other way when faced with allegations
of violence against African-Americans and those who supported our
struggle for equal treatment under the law. Judge Pickering was
a locally elected prosecutor who took the stand that year and testified
in the criminal trial against the Imperial Wizard of the Ku Klux
Klan, who was accused of firebombing a civil rights activist. Judge
Pickering later lost his bid for reelection because he dared to
defy the Klan, but he gained my respect and the respect of many
others as a man who stands up for what is right."
The Klan case,
although 35 years ago, stands out in many memories. "Pickering
is not perfect — no one is — but he has courage,"
Johnny Magee, a black city councilman in Laurel, Mississippi, recently
told Legal Times. "He was involved as a county prosecutor
in fighting against the Ku Klux Klan and helped put Klansmen behind
bars. That was something you just didn't do in Jones County in the
1960s."
And Pickering's
defenders cite more than just one case. Pickering hired black staffers
when few other Republicans or Democrats in Mississippi did. As a
private lawyer he defended a young black man accused of robbing
a young white woman in a rural grocery store, then stuck with the
case through two trials, and finally won the young man's acquittal.
He pushed the chancellor of the University of Mississippi to establish
the Institute of Racial Reconciliation and then served on its board
of directors. And he built a reputation for fairness. Johnny Magee
told Legal Times that his stepson, convicted of drug charges,
came before Pickering for sentencing. Magee told the paper that
his stepson "is currently serving time, and he deserves it.
But Pickering dealt with him completely fairly."
That
Old Time Religion
Another
issue on which PFAW criticizes Pickering is an alleged "disregard
for the separation of church and state by repeatedly using his position
on the bench to promote involvement in religious programs."
In particular, the PFAW report says that Pickering has used the
occasion of handing out sentences to convicted offenders as an opportunity
to promote his religious beliefs. For example, in 1997, when sentencing
a man convicted in a conspiracy case involving murder, Pickering
said,
It's too
late for you not to pay a price for what you've done. However,
it is not too late for you to form a new beginning. For yourself
and others, I hope you will do that. You have a lot to offer.
You can become involved in Chuck Colson's prison fellowship or
some other such ministry, and be a benefit to your fellow inmates
and to others and to their families. I hope you will have a new
beginning, even in prison; that you will make a positive contribution
to society. It won't be easy, but it can be done.
The PFAW report
underlines the phrase "You can become involved in Chuck Colson's
prison ministry" as evidence of Pickering's disregard for the
separation of church and state.
In another
case, according to PFAW, Pickering, when sentencing a man convicted
of receiving and sending child pornography over the Internet, told
the man, "In the penitentiary, there are many ways to become
involved. There are many areas of service and ministry that you
can engage in in the penitentiary." The PFAW report underlines
the words "areas of service and ministry" as evidence
of Pickering's disregard for the separation of church and state.
And in yet another case, involving a man convicted of conspiracy
to commit murder, Pickering told the defendant, ""You
will involve yourself in some type of systematic program whereby
you will be involved in the study and consideration of effects and
consequences of crime and/or inappropriate behavior in a civilized
society. This may be a program through your church or some other
such agency or organization, so long as it is approved in advance
by the probation service." The PFAW report underlines the words
"through your church or some other such agency" as evidence
of Pickering's disregard for the separation of church and state.
Far
Right to Life
Ralph
Neas and PFAW have also charged that Pickering is "a staunch
opponent of women's reproductive rights." The PFAW report bases
its case mostly on Pickering's service on the Republican platform
committee at the party's national convention in 1976. Pickering
chaired the Human Rights and Responsibilities subcommittee, which
approved a plank calling for the repeal of Roe v. Wade.
A few years later, while serving as a Mississippi state senator,
Pickering voted for a resolution calling for a constitutional amendment
outlawing abortion. The PFAW report cites no evidence of any Pickering
actions or public statements on abortion since 1984.
While it seems
clear that Pickering personally opposes abortion, it is also clear
that he has never had an abortion case come before him during his
years as a U.S. District Court judge. It is not possible to predict
how he would rule in an abortion-related case, but his defenders
point out that he has heard a few cases involving issues of sexual
privacy. In 1994, for example, he heard a case involving Camp Sister
Spirit, a lesbian community then being built in Ovett, Mississippi.
A group of local citizens went to court in an attempt to stop the
project, but Pickering dismissed the case. (Camp Sister Spirit was
established and still exists today.)
In another
case, in 1991, Pickering sharply rebuked an attorney who brought
up a plaintiff's homosexuality during a fraud trial. "Homosexuals
are as much entitled to be protected from fraud as are any other
human beings, but not any more so," Pickering told the jury.
"The fact that the alleged victims in this case are homosexuals
shall not affect your verdict in any way whatsoever." In still
other cases, which did not involve sexual privacy, Pickering has
made clear that he has not always agreed with laws which he nevertheless
enforced. None of that suggests how Pickering would vote should
he ever be faced with an abortion case, but it does suggest, as
his defenders say, that Pickering's record "reflects that,
as a judge, he has followed the law."
Too
Good To Pass Up
The PFAW
report makes other criticisms of Pickering that are not based on
race, religion, and abortion. For example, it alleges that Pickering
has a "troubling record of reversals in the Court of Appeals."
The report says there have been 26 cases in which Pickering decisions
have been overturned by the Fifth Circuit Court of Appeals. PFAW
compares that unfavorably to Judge Edith Brown Clement (who now
sits on the Fifth Circuit), who was overturned "in only"
17 cases. The report does not mention that Pickering's 26 reversals
came out of a total of more than 4,000 cases, giving him a reversal
rate of well under one percent. Using that standard, Clement's reversal
rate is not much different. At most, the difference between Pickering's
reversal rate and Clement's is one tenth of a percentage point —
hardly evidence of anything, other than the fact that both judges
have impressively low reversal rates.
Finally, PFAW
has criticized Pickering for not publishing many of his opinions
in those 4,000-plus cases. Legal guidelines discourage judges from
publishing opinions which are made on the basis of unquestionably
settled law without any extraordinary circumstances — a description
that fits most cases. The guidelines do encourage judges to publish
opinions that establish precedent or involve particularly instructive
circumstances. Pickering has been quite modest about publishing
his own opinions, which means that most of his written work is not
in law books but in files at the U.S. District Court in Mississippi.
The PFAW report suggests there may be damaging information in the
"missing" opinions, and demands that they all be brought
before the Senate Judiciary Committee. "We don't know what's
in those missing rulings," Ralph Neas said on January 24, "but
the rulings we do have make it clear that Pickering has opposed
basic principles protecting civil rights and has sought to limit
their application."
Given the paucity
of evidence against Pickering, one has to ask why PFAW, along with
other liberal interest groups, is attacking him with such energy.
Perhaps the urge to label a 64-year-old white man from Mississippi
as a racist is just too strong to resist. More likely, though, it
appears that PFAW is acting because activist organizations need
to act. PFAW and other groups have been promising constituents
and donors that they would fight George W. Bush tooth and nail on
the issue of judicial nominations. Yet more than a year of the Bush
presidency has passed and there still has not been a major nomination
battle. Of course, that owes in large part to Democrats' strategy
of stalling nominations, but at some point push had to come to shove.
Democrats and their interest-group supporters have been wanting
a fight, and now, in the unlikely case of Charles W. Pickering,
they have one.
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