By Richard Prasad
There has been much controversy over the nomination of Charles
Pickering by President Bush for a seat in the Court of Appeals.
Is Judge Charles Pickering a divisive, racially insensitive
judge, or has he reformed his past ways, and redeemed himself?
The questions surrounding Pickering's racial insensitivity,
if not downright hostility, began with his writings in 1959.
In that year he wrote a Mississippi Law Review article titled
"Criminal Law: Miscegenation and Incest" In the article Pickering
advises how Mississippi's statutes against interracial marriage
could be strengthened and better enforced. Within months of
the article being published, the Mississippi Legislature adopted
the changes advocated by Pickering.
When asked about this article at an earlier confirmation
hearing, Pickering said, "I do not recall having a view on
interracial marriage." Notice he did not say he did not have
a view, he said he did not recall having a view. This is the
easiest way to avoid the so-called perjury trap in testimony,
simply say I do not recall.
Pickering's racial baggage goes deeper than early law review
articles. In a 1990 confirmation hearing, Pickering said he
never had contact with Mississippi's Sovereignty Commission.
The Sovereignty Commission was formed soon after Brown vs
Board of Education. It's primary goal was to prevent integration,
and it's primary methodology was to infiltrate the NAACP,
and other liberal groups such as organized labor. As a state
senator in the 1970's Pickering voted to have the records
of the Sovereignty Commission sealed, however, a 1972 memo
was found that said Pickering was "very interested" in a Sovereignty
Commition's investigation into union activity in Pickering's
hometown of Laurel Mississippi. This memo seems to be in direct
contradiction to Pickering's 1990 testimony that he never
had contact with the Soverignty Commission.
Pickering's bias seems to bleed onto his legal opinions as
well, especially in the area of voting rights for minorities.
In a case called Fairley v Forrest County, he called the principle
of one man one vote "obtrusive", arguing against the Supreme
Courts view, enunciated in cases such as Reynolds V Sims.
In Reynolds the Supreme Court held that the Equal Protection
Clause of the Constitution demanded equal representation for
all. In the Fairley case, Pickering essentially denied blacks
equal representation by not ordering a redistricting plan.
Pickering cited taxpayer expense for not imposing the redistricting
Pickering's contempt for one person one vote seems to be
right in line with the Bush judicial doctrine. After all,
in Bush V Gore, didn't a majority of the Supreme Court stop
the recount in Florida? Rehnquist Scalia, Thomas, et al. probably
think the principle of one man one vote is obtrusive as well.
In another case, Citizens Right to Vote V Morgan, Pickering
again demonstrated his racial animosity. In his opinion Pickering
wrote: "This case is just another one which demonstrates that
the Federal Government is the solution to whatever problem
comes along." This is a classic states rights view favored
by segregationists during the Civil rights struggle. The states
rights view contends that the Federal Government should stay
out of matters such as voting rights issues. What makes Pickering's
view so scary is that he was arguing this AFTER the Voting
Rights Act had passed. He was arguing against settled law.
Pickering's views do not seem to mellow with time. In 1993,
he actually halted a civil rights case that came before him.
The case involved Dixie Power Assiociation vs the NAACP. The
NAACP argued that the power company was acting in a discriminatory
manner in regard to service to minorities. Immediately after
the case was filed, Pickering issued an order that all action
on the case be suspended for 3 months. When the case resumed,
he did not allow discovery on the case by the NAACP and went
directly on to settlement. After the settlement was reached,
Pickering imposed a gag order so no details of the case could
Judge Pickering's bias continued to erode his judicial thinking
even further. According to a February 28th 2002 Baltimore
Sun article, Pickering conducted off the record conversations
with lawyers during a sentencing hearing. Pickering apparently
violated judicial ethics by conducting what are called ex
parte discussions with lawyers. This action was a violation
of the Code of Conduct for US Judges, according to Northwestern
University Professor Stephen Lubet.
This discussion of ex parte conversations might seem like
an exercise in legalisms, unless one considers that Pickering
used these discussions to lower the sentence of a cross burner
in Mississippi. The sentence of Daniel Swan, the cross burner
in question was reduced from 7 years to 27 months. Pickering
called the mandatory sentence of 7 years "absurd, illogical
Supporters of Pickering say his views are being distorted.
They cite an artcle by the New York Times on February 17th
of this year that states that many blacks from Pickering's
hometown are shocked at the negative way Pickering is being
portrayed in the press by national civil rights organizations.
Pickering's friends in the Senate also like to point out an
opinion piece in the Washington Post, from February 17th calling
the Pickering nomination "an ugly affair".
With all due respect to the Times and the Post, they are
missing the point. The question here is not how Pickering
treats individual blacks in his hometown or the ugliness of
the confirmation process. The question is, did Pickering allow
his personal racial animus to taint his legal opinions, and
in case after case, the answer is undoubtedly yes.
This pattern of bias has continued from the late 50's unabated
into the 90's. That is far too long to hold pernicious views
such as Pickering's on race. In light of the reversal of the
convictions of police officers in the Louima case in New York
City, it is apparent that the United States has a long way
to go to achieve racial justice, and appointing a person like
Judge Pickering is not the way to get there.
Apparently seeing the writing on the wall Trent Lott postponed
the nomination. If all ten Democrats on the Judiciary Committee
vote against Pickering, the nomination won't make it to the
floor of the Senate. The Pickering nomination underscores
a long standing weakness of the Bush administration, rather
than engage in a battle over his nominee that might cause
his popularity to fall, Bush lets the nominee twist in the
wind. This mode of thinking was primariily employed by Bush
with the Linda Chavez nomination for Secretary of Labor, when
backed into a corner, Bush will cut controversial nominees
loose. There is no principle, other than tax cuts, that the
President will fight for.
Judge Charles Pickering should never have been chosen by
President Bush to be serving on the Appeals Court of the 5th
district or any other district for that matter. His views
on equal protection and voting rights for minorities, as expressed
by his many judicial opinions on these matters, seems to have
changed little since his law school days in Mississippi. He
is the wrong man for the job. And Democrats are right to sink