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Republicans will likely learn this week whether Charles Pickering,
the Mississippi judge nominated by President Bush to be on the Fifth
Circuit Court of Appeals, will be able to survive the attacks leveled
at him by Democrats who have made his case the first judicial nomination
battle of the Bush administration.
Some of Pickering's
supporters are becoming increasingly pessimistic, discouraged by
the intensity of the Democratic attack and the uninspiring performance
of both Senate Republicans and the White House in Pickering's defense.
Democrats have based much of their anti-Pickering strategy on the
issue of race, accusing him of being "insensitive" and
"indifferent" to critical constitutional guarantees of
equal rights. It's a plan that has worked in the past against Republican
nominees — it was employed most recently against Attorney General
John Ashcroft — in part because it places the nominee in the
defensive posture of trying to prove he is not a racist, whether
or not there is any evidence to suggest that he is. Indeed, while
some in the GOP have rushed to Pickering's defense, others, perhaps
sensing the difficulty of the situation and not wanting to get involved,
have done little to help him.
The dynamic
was on full display late last Thursday afternoon when Democratic
senator and presidential aspirant John Edwards, using the skills
that made him a multimillionaire trial lawyer, subjected Pickering
to a harsh cross-examination in which Edwards accused Pickering
of being lenient on racist criminals and unethical as well. Edwards
based his attack on a case which came before Pickering in 1994 in
which three men were accused of burning a cross in the front yard
of a mixed-race couple in southern Mississippi. While Edwards's
charges sounded quite serious, a close examination of the case suggests
that they were not only not accurate, but appeared designed to mislead
listeners to the conclusion that Pickering is unqualified to sit
on the federal bench.
Cross
Purposes
The crime
happened on January 9, 1994. Three men — 20-year-old Daniel
Swan, 25-year-old Mickey Herbert Thomas, and a 17 year old whose
name was not released because he was a juvenile — were drinking
together when one of them came up with the idea that they should
construct a cross and burn it in front of a house in which a white
man and his black wife lived in rural Walthall County. While it
is not clear who originally suggested the plan, it is known that
the 17 year old appeared to harbor some sort of hostility toward
the couple; on an earlier occasion, he had fired a gun into the
house (no one was hit). Neither Swan nor Thomas was involved in
the shooting incident.
On January
9, the men got into Swan's pickup truck, went to his barn, and gathered
wood to built an eight-foot cross. They then drove to the couple's
house, put up the cross, doused it with gasoline, and set it on
fire.
Because the
case involved a cross burning covered under the federal hate-crimes
statute, local authorities immediately brought in investigators
from the Clinton Justice Department's Office of Civil Rights. After
the three suspects were arrested in late February, 1994, lawyers
for the civil-rights office made the major decisions in prosecuting
the case.
In a move that
baffled and later angered Judge Pickering, Civil Rights Division
prosecutors early on decided to make a plea bargain with two of
the three suspects. The first, Mickey Thomas, had an unusually low
IQ, and prosecutors decided to reduce charges against him based
on that fact. The second bargain was with the 17 year old. Civil
Rights Division lawyers allowed both men to plead guilty to misdemeanors
in the cross-burning case (the juvenile also pleaded guilty to felony
charges in the shooting incident). The Civil Rights Division recommended
no jail time for either man.
The situation
was different for the third defendant, Daniel Swan, who, like the
others, faced charges under the hate-crime statute. The law requires
that the government prove the accused acted out of racial animus,
and Swan, whose defense consisted mainly of the contention that
he was very drunk on the night of the cross burning, maintained
that he simply did not have the racial animus necessary to be guilty
of a hate crime under federal law.
The case went
to trial in Pickering's courtroom. During the course of testimony,
it appears that Pickering came to suspect the Civil Rights Division
had made a plea bargain with the wrong defendant. No one questioned
the Justice Department's decision to go easy on the low-IQ Thomas,
but the 17 year old was a different case. "It was established
to the satisfaction of this court that although the juvenile was
younger than the defendant Daniel Swan, that nevertheless the juvenile
was the ring leader in the burning of the cross involved in this
crime," Pickering wrote in a memorandum after the verdict.
"It was clearly established that the juvenile had racial animus....The
court expressed both to the government and to counsel for the juvenile
serious reservations about not imposing time in the Bureau of Prisons
for the juvenile defendant."
In addition
to the 17 year old's role as leader, there was significant evidence,
including the fact that he had shot into the mixed-race couple's
home, suggesting that he had a history of violent hostility to blacks
that far outweighed any racial animosity felt by Daniel Swan. Swan
had no criminal record, and seven witnesses testified that they
were not aware of any racial animus he might have held against black
people. On the other hand, one witness testified that he believed
Swan did not like blacks, and Swan admitted under questioning that
he had used the "N" word in the past. In the end, Swan
was found guilty — there was no doubt that he had taken an
active role in the cross burning — and the Justice Department
recommended that he be sentenced to seven and a half years in jail.
At that point,
the Justice Department had already made a no-jail deal with the
17 year old. When it came time to sentence Swan, Pickering questioned
whether it made sense that the most guilty defendant got off with
a misdemeanor and no jail time, while a less guilty defendant would
be sentenced to seven and a half years in prison. "The recommendation
of the government in this instance is clearly the most egregious
instance of disproportionate sentencing recommended by the government
in any case pending before this court," Pickering wrote. "The
defendant [Swan] clearly had less racial animosity than the juvenile."
Compounding
Pickering's concern was a conflict between two federal appeals court
rulings over the applicability of a statutory mandatory minimum
sentence to the case. The Justice Department insisted that Swan
be sentenced to a minimum of five years under one statute and two
and a half years under a separate law. Pickering doubted whether
both were applicable to the case and asked Civil Rights Division
lawyers whether the same sentencing standards were used in cases
in other federal circuits. The prosecutors said they would check
with Washington for an answer.
Pickering set
a sentencing date of January 3, 1995. As the date approached, he
waited for an answer from the Justice Department. He asked in November,
1994 and received no response. He asked again in December and received
no response. He asked again on January 2, the day before the sentencing,
and still received no response. He delayed sentencing, and on January
4 wrote a strongly-worded order to prosecutors demanding not only
that they respond to his questions but that they take the issue
up personally with Attorney General Janet Reno and report back within
ten days.
Shortly after
issuing the order, Pickering called assistant attorney general Frank
Hunger, a Mississippian and friend of Pickering's who headed the
Justice Department's Civil Division at the time (Hunger was also
well known as the brother-in-law of vice president Al Gore). Pickering
says he called Hunger to express "my frustration with the gross
disparity in sentence recommended by the government, and my inability
to get a response from the Justice Department in Washington."
Hunger told Pickering that the case wasn't within his area of responsibility.
It appears that Hunger took no action as a result of the call.
Finally, Pickering
got word from Civil Rights Division prosecutors, who said they had
decided to drop the demand that Swan be given the five-year minimum
portion of the recommended sentence. Pickering then sentenced Swan
to 27 months in jail. At the sentencing hearing, Pickering told
Swan, "You're going to the penitentiary because of what you
did. And it's an area that we've got to stamp out; that we've got
to learn to live, races among each other. And the type of conduct
that you exhibited cannot and will not be tolerated....You did that
which does hinder good race relations and was a despicable act....I
would suggest to you that during the time you're in the prison that
you do some reading on race relations and maintaining good race
relations and how that can be done."
So Swan went
to jail, for a bit more than two years rather than seven. Every
lawyer in the case — the defense attorneys, the prosecutors,
and the judge — faced the difficulty of dealing with an ugly
situation and determining the appropriate punishment for a bad guy
and a somewhat less-bad guy. Pickering, who believed the Civil Rights
Division went too easy on the 17-year-old bad guy, worked out what
he believed was the best sentence for Daniel Swan. It was a real-world
solution to the kind of real-world problem that the justice system
deals with every day. And it was the end of the cross-burning case
— until now.
Edwards
on the Attack
At Pickering's
confirmation hearing last Thursday, Democratic questioning focused
mostly on issues that had been raised in a report by the liberal
interest group People for the American Way. Democratic senators
questioned Pickering about a law review article he wrote in the
1950s about Mississippi's interracial-marriage ban. They questioned
Pickering about statements he made in the 1960s when he left the
Democratic Party. And they questioned Pickering about whether he
had any contact with the racist Mississippi Sovereignty Commission
in the 1970s. That's the way it went until the questioning came
to John Edwards.
Edwards told
Pickering he wasn't going to ask questions about events that happened
decades ago. "This issue is something that happened in 1994,
something that's not in the distant past," Edwards said, "a
case involving a cross burning that you were the trial judge for.
As I understand it there were three defendants in that case, two
who pled guilty and one who went to trial before you?"
"Yes,
that's correct," Pickering said.
"The two
who pled guilty admitted their guilt and took responsibility for
their actions, is that correct?"
"Yes."
"And it
is customary in criminal cases in both federal and state court to
provide some leniency to those who plead guilty, participate in
a plea agreement, take responsibility for their actions, as opposed
to someone who denies their guilt and goes to trial, is that fair?"
"Well,
the guidelines provide, senator — "
Edwards did
not want to discuss sentencing guidelines. First, he suggested that
during the sentencing dispute, Pickering had told one of the lawyers
involved that he, Pickering, would order a new trial based on the
disparity of sentences. Pickering testified that he did not say
that, and Edwards did not present any evidence to support his accusation.
Instead, Edwards moved on to Pickering's call to Frank Hunger, suggesting
that Pickering had gone to extraordinary and unethical lengths in
an effort to win leniency for Swan.
"You made
a telephone call to a high ranking Justice Department official,
according to the information that we have, and you are familiar,
are you not, judge, with the Code of Judicial Ethics that applies
to you? You are familiar with that, are you not?"
"I am,"
Pickering said.
"And are
you familiar with Canon 3(a)(4) of that Code which says, 'except
as authorized by law, a judge should neither initiate nor consider
ex parte communications on the merits of a pending or impending
proceeding.' [The ex parte rule forbids judges from having substantive
one-party conversations with either side in a case in order to prevent
judges from making secret deals or otherwise favoring one side over
the other.] Did you make a phone call to a high ranking Justice
Department official on your own initiative?"
"We had
had — " Pickering began to answer.
"Not 'we,'"
Edwards interrupted. "You. Did you make this phone call?"
"I've
indicated I called Mr. Hunger and discussed the fact that I was
frustrated I could not got a response back from the Justice Department,
and I thought there was a tremendous amount of disparity in this
sentence."
"Were
the government prosecutors on the phone when you made that call?"
"No, they
were not."
"So that
would be what we lawyers and judges would call an ex parte communication,
would it not?"
"Well,
whether the government attorneys had been on the phone or not, it
would have been a question of whether the defense counsel had been
on the phone," Pickering said.
"Was the
defense counselor on the phone?" Edwards asked.
"No, we
had discussed that with them, and this was a follow-up conversation
as to what we had discussed with defense counsel present,"
Pickering said.
"Were
any of the lawyers in the case on the phone when you called
Mr. Hunger?" Edwards asked.
"No, they
were not."
"So that
was an ex parte communication, was it not?"
"It was."
"In violation
of the Code of Judicial Conduct."
Pickering paused.
"I did not consider it to be in violation of the Code of Judicial
Conduct."
"Well,
could you explain that to me?" Edwards pressed. "The Code
says you should 'neither initiate nor consider ex parte communications
in a pending or impending proceeding.' The case was still pending
at that time, was it not?"
"It was
pending," Pickering said.
"You made
an ex parte communication, did you not?"
"I talked
with Mr. Hunger."
"Didn't
you just tell me that was an ex parte communication?"
"Well,
it was ex parte from the standpoint that I was talking to him. He
did not have the responsibility to make decisions in this case."
"Did you
also direct the Justice Department lawyers, the line
prosecutors, to take your complaints personally to the Attorney
General of the United States?"
"In the
order, yes," Pickering said.
"Can you
tell me, judge, in how many other cases, and if you can tell me
the names of the cases, where you have, after a conviction and prior
to sentencing, or subsequent to sentencing, told the lawyers in
a private meeting that you would order a new trial on your own motion;
contacted, on your own initiative, contrary to the Code of Judicial
Conduct, a high ranking Justice Department official about a case
pending before you; and third, directed line prosecutors to take
your complaints personally to the Attorney General of the United
States. Can I just ask you, have you ever done that in any other
case?"
"May I
explain my answer?" Pickering asked. "No, I have never
had a case where the disparate treatment was so great as it was
in this case." Pickering tried to explain the plea bargain,
the 17-year-old ring leader, the seven-and-a-half-year sentence
recommended for Swan, and the rest. But by that time the damage
was done. As Edwards must have known, virtually no one in the audience
knew the details of the cross burning case, and few, if any, would
take the time to look into the matter. All they knew was that it
looked like Pickering had violated the judicial code of ethics to
protect a young cross-burner in Mississippi.
Lost
Cause?
This
week, some Republicans are making a belated effort to defend Pickering
against Edwards's charges. They maintain, correctly, that Pickering's
communications with the Justice Department were a normal effort
to get an answer to a question which the judge wanted answered before
sentencing. Similar calls — whether ex parte or not —
are an everyday feature of the justice system, and not a violation
of the Code of Judicial Conduct. In addition, Republicans have gathered
more testimonials to Pickering's ethical standards.
But Pickering's
blood is in the water. Although no Democrat on the Judiciary Committee
has said how he or she will vote on the nomination, on Sunday Senate
Majority Leader Tom Daschle made it clear that Pickering is in trouble.
"There are some very serious questions about Mr. Pickering,"
Daschle told CNN. "Women's groups, civil rights organizations,
a number of people have called attention to the facts that have
been coming out in the last several days, and we're trying to make
that judgment."
Have you made
up your mind? Daschle was asked. "This is a matter that first
comes before the Judiciary Committee, and they will have to make
their judgment," Daschle said. "If it reaches the Senate
floor, in all likelihood, I will oppose Mr. Pickering."
Now that Daschle
— whose party holds a 10 to 8 majority on the Judiciary Committee
— has voiced his own opposition to Pickering, it is entirely
possible that the Republican defense effort will run out of steam
sooner rather than later. There may be no extended battle over Pickering
because Republicans are simply not in the mood to fight. Pickering
is, after all, a 64-year-old man who at most will serve a few years
on the bench; some GOP senators, uncomfortable at being forced into
the position of discussing racial issues, are simply not inclined
to go to the mat to save him. In addition, the White House, which
nominated Pickering not of its own initiative but rather at the
insistence of Senate Minority Leader (and Pickering friend) Trent
Lott, may not be willing to fight, either.
But not defending
Pickering will have its costs. If the Pickering nomination goes
down, GOP insiders fear, Democrats and their supporting groups like
People for the American Way will not be satisfied with a victory
but will rather become emboldened for future battles, which will
almost certainly include a nomination to the Supreme Court. "If
they beat Pickering, that will make them more aggressive the next
time, when it counts more," says one GOP aide. "Their
caucus is unified, and their interest groups are unified."
At least for now, Republicans are not unified, which allows
charges like those made by John Edwards to go unanswered.
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