The Next Big Fight
The first major judicial-confirmation battle of the Bush administration.

February 6, 2002 10:35 a.m.

t 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.