The Pickering Nomination
March 5, 2002
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 plan.

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 be discussed.

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 and ridiculous."

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 his nomination.