The Ordeal of Charles Pickering


Renominating Judge Pickering—especially in the wake of the Trent Lott affair—is a thumb in the eye of the black community. —New York senator Charles Schumer, National Review Online, October 3

Judge Pickering’s record of working with both races and working for racial reconciliation in past and present years is beyond what many whites . . . in positions of leadership have done in our state. —Phillip West, chairman of the Mississippi legislative black caucus, in The Hill, October 1

Supreme Court Justice William O. Douglas said that the history of liberty is the history of due process—fundamental fairness in the protection of individual rights and liberties. I would add: fairness in the protection of individual reputations.

Since federal District Judge Charles Pickering of Mississippi was nominated to the Fifth Circuit Court of Appeals by President Bush in May 2001, what the Democrats on the Senate Judiciary Committee—led relentlessly by Charles Schumer—have done to distort Pickering’s record on and off the bench has been the antithesis of due process and plain decency. Pickering’s nomination was killed in committee in March 2002. He has been renominated.

I have written about Pickering’s ordeal previously (“The Facts: Schumer v. Pickering,” Voice, February 12-18, 2003), and now again, because after his second hearing before the Judiciary Committee, on October 2, 2003, his nomination was sent to the floor of the Senate by a strict party-line vote of 10 to 9. According to Article II, Section 2 of the Constitution, as also stated clearly in the Federalist Papers, Pickering now, for the first time, should get an up-or-down vote by the whole Senate.

But the Democrats are very likely to filibuster that nomination, and 60 votes will be required to break the filibuster. Pickering has 55 votes now on the floor, including that of Senator James Jeffords, the Vermont independent. Other Democratic filibusters of Bush Circuit Court nominees have succeeded and may do so again against Pickering.

I am writing once more about this anti-Constitutional assault because the Republicans, when they get enough votes, will surely do the same to the nominee of a Democratic president. I focus on Pickering, however, because, since he became a national figure, he has had to hear himself tarred as a racist not only by some Democratic senators on the Judiciary Committee but also by his opponents in the national office of the NAACP—and implicitly by officials of People for the American Way, Alliance for Justice, and even Congressman Robert Scott, the Virginia Democrat who is one of the few active civil libertarians in Congress.

Speaking with other members of the Congressional Black Caucus, Scott said of Pickering, the first time around: “It’s hard to imagine a person more hostile to civil rights.”

Yet, a New York Times reporter, writing from Mississippi, has, as I shall indicate, shown the wide and strong support Pickering has among blacks in that state. On February 17, 2002, David Firestone wrote a piece headed: “Blacks at Home Support a Judge Liberals Assail.”

However, ignoring what its own reporter wrote about widespread black respect for Pickering in Mississippi, the Times, in an October 1 editorial this year, questioned sharply whether Pickering “would be the kind of judge the Fifth Circuit—one of the most heavily minority circuits in the country—needs. His record strongly suggests he would not.”

Then the editorial got to the false core of the case against Pickering that has been repeated again and again by the press in news columns and by such casual columnists as the Times‘ Maureen Dowd, who wrote on January 22 that Pickering has a “soft spot for cross-burners.”

In its October 1 editorial, the Times, utterly bypassing the actual facts of this chronic charge against Pickering, declared:

“Judge Pickering’s actions in a cross-burning case alone should disqualify him. He took up the cause of a man convicted of burning a cross on the lawn of an interracial couple. He badgered prosecutors into dropping a key charge even after the man was convicted and called a prosecutor to lobby him, an unusual and improper move.

“That Judge Pickering,” the Times editorial continued, “who has a record of being tough on criminals, was so passionate in this case, shows at the least, racial insensitivity. How he undertook the battle showed a lack of judicial ethics.”

Charles Schumer, among his various references to the cross-burning case, ignoring what actually happened, has denounced Pickering for “glaring racial insensitivity.”

But Schumer is an unabashed, ideological partisan. However, does the Times editorial writer, who accused Pickering of disqualifying himself because of the cross-burning case, read the news section of his or her own paper?

In the May 28, 2003, Times, Neil A. Lewis, a first-rate legal-affairs reporter for the paper, wrote, from Mississippi, an article titled “A Judge, a Renomination and the Cross-Burning Case That Won’t End.”

Because Lewis accurately concluded that the cross-burning case “has become the centerpiece” of the Pickering confirmation debate, he reviewed “the transcripts of the trial and sentencing hearings,” as well as conducted “interviews with people involved in the case,” and examined Justice Department documents. Lewis’s 1,823-word story provides key facts that were entirely absent from the Times editorial wholly condemning Pickering’s actions concerning that case. More of Neil Lewis’s piece next week.

I am not reviewing Pickering’s actions in the case as an argument for his confirmation. I would hesitate to vote for him, because he asked lawyers who bring cases before him in the District Court to write to the Senate Judiciary Committee supporting his nomination to the Fifth Circuit. That is unethical.

But I write now to illuminate the laziness of the press—with very few exceptions—in reporting in lockstep the debasing accusations against Pickering in the cross-burning case without doing their own reporting. Moreover, from organizations on both sides of the ideological spectrum, there is now no charge too low and too inaccurate that is beyond the bounds of trying to terminate a judicial nomination. It’s become disgusting.

Next week: The judicial conscience of Charles Pickering.