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The left targets Pickering ... again

By John Nowacki
web posted February 11, 2002

As Judge Charles Pickering's October 18th nomination hearing began, Senator Charles Schumer took the unusual step of announcing that there would be a second nomination hearing for Judge Pickering. Second hearings are usually reserved for extremely controversial nominees whose answers at their initial hearing raise more questions. In Pickering's case, Senate Democrats and left-wing groups knew they would want a second shot at attacking the nominee, since they couldn't come up with any credible charges against him the first time around. With that second hearing scheduled for this Thursday, they still haven't.

Judge Charles PickeringPickering, a federal district judge since 1990, was nominated by President Bush to be U.S. Circuit Judge for the Fifth Circuit on May 25, 2001. For those who are interested in such things, the not-remotely-conservative American Bar Association gave him a majority "well-qualified"/minority "qualified" rating six months ago.

The attacks on Judge Pickering center on race-related civil rights issues, in spite of his exemplary record. The Left conveniently chooses to ignore that he testified against the Imperial Wizard of the KKK in Mississippi in 1967, is on the board of directors of the University of Mississippi's Institute for Racial Reconciliation, and has broad support among African-Americans who know him well.

Instead, left-wing groups have attacked Judge Pickering for writing a brief academic article while a law student in 1959, analyzing how Mississippi's miscegenation statute differed from similar statutes in other states and explaining what changes would eliminate the difference. His critics fail to mention that this was an academic exercise; that he didn't advocate or support a ban on interracial marriage at all. They also fail to acknowledge his statement at his 1990 confirmation hearing, reaffirmed at his 2001 hearing: "Marriage between people of different races is a matter of personal choice," he said, adding that it was his personal belief that miscegenation statutes are unconstitutional.

Those are more than just words; on the bench, Judge Pickering has followed the Supreme Court's precedent and application of the Equal Protection Clause. In Adams v. Walmart, for example, Judge Pickering set aside a jury's damages award because he believed the jury was biased against the plaintiffs -- a white man and his Asian fiancée -- based on their mixed-race relationship. On retrial as to damages, the couple received a larger award.

Liberals have also attacked Judge Pickering for "contacts" with the Mississippi Sovereignty Commission, a group active in the 50s and 60s but basically defunct by the 70s. During his 1990 confirmation hearing, Pickering had no recollection of contacting the Commission, and said: "I never had any contact with that agency and I had disagreement with the purposes and the methods and some of the approaches that they took." Pickering did have one contact with the Commission in 1972, but not surprisingly, the Left ignores the real reasons for that contact and Pickering's having forgotten it.

As Chet Dillard, a prosecutor during the 1960s with firsthand knowledge of the matter, explained in a letter to Senators Leahy and Hatch, then-State Senator Pickering was in a group of state legislators who requested to be advised about a group organizing pulpwood workers in the state. In 1972, Jones County was just emerging from a bitter labor dispute at a plant where 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 the former District Attorney of Jones County, Mississippi, I knew what Charles Pickering had known in 1972," Dillard wrote. "Indeed, in 1967, I filed a murder charge against reputed Klansman Vander L. 'Dubie' Lee, a member of the Woodworkers Union, for a murder at the Masonite plant in Jones County. 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.

Dillard addressed Pickering's having forgotten the request as well. "As any long-time resident of Mississippi knows, the mention of the Sovereignty Commission instantly brings to mind its high-profile investigations in the 1950s and 1960s. Thus, by 1990, Charles Pickering could easily have forgotten a 1972 conversation with a Commission investigator that occurred years after the Commission's heyday and involved no high-profile Commission activity," he wrote.

Where did the initial information on this issue come from? The Commission's files, which Pickering had actually fought to preserve. While a state senator, Pickering voted to shut down the Commission in 1977 and preserve the records under seal instead of supporting the other proposed alternative: burning them. But his Left-wing critics always seem to forget to mention that.

Pickering has come under attack from pro-abortion groups for his actions as a political figure, many years before he became a judge. While in the state senate, he expressed his concerns that there was no textual or historical basis for Roe v. Wade, an opinion shared by many liberals, including Justice Byron White (a Kennedy appointee), Watergate prosecutor Archibald Cox, and others. Pickering has not dealt with an abortion case as a judge.

Judge Pickering's critics also attack him for having "criticized or sought to limit important remedies provided by the Voting Rights Act," including the creation of majority black districts. In the relevant quote, what Judge Pickering actually wrote (in its entirety) was as follows:

"This Court is still concerned that as white voters are separated into separate districts and black voters are separated into other separate districts there is going to be less and less accommodation, less and less effort to resolve differences by reason and logic and more and more polarization. Candidates elected in majority black districts may well feel little need to accommodate the views of their minority white constituents, and candidates elected from almost exclusively white districts may well feel little responsibility to accommodate the views of their minority black constituents. Constitutional guarantees of equality should bring us together, not divide us."

In his rulings from the bench, Judge Pickering has shown he understands that the role of a judge is to interpret the law, not to legislate from the bench. He has followed Supreme Court precedent in voting rights and Miranda cases, and has demonstrated a commitment to being fair, impartial, and dedicated to following the law.

That commitment led the Democrat-controlled Judiciary Committee to approve him unanimously in 1990, with Senators Biden, Kennedy, Leahy, and Kohl giving their approval. And that's why the full Senate confirmed him by unanimous consent shortly thereafter. That same commitment, with his record as a federal judge to support it, should lead to that same support today.

But it won't.

Liberals have made it clear that they will fight hard over Court of Appeals nominations, and they are going all-out to block Judge Pickering's nomination. And by attempting to smear his reputation, they've shown once more that they will go to any lengths to do it.

Left-wingers are counting on people listening to their charges without taking a closer look. But the facts show that Judge Pickering has been a supporter of civil rights for five decades, both on the bench and off, and that's why Senators should have no reservations about voting for his confirmation.

John Nowacki is deputy director of the Free Congress Foundation's Judicial Selection Monitoring Project.

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