The Magazine

A Nomination Worth Fighting For

Mar 4, 2002, Vol. 7, No. 24 • By TERRY EASTLAND, FOR THE EDITORS
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As for Pickering himself, the effort to portray him as "insensitive" on race (racist, if you know how to read these things) is unfair. Democrats have seized on this and that--a law review article on Mississippi's anti-miscegenation statute that he wrote in 1959 as a law student; trivial contact in the early 1970s with the pro-segregationist Mississippi state Sovereignty Commission; and support as a state senator in the 1970s for an open primary bill that the Justice Department blocked on account of its negative impact on black voters. None of this amounts to much when the man is seen in full, for Pickering also stood against the Klan in Mississippi when that took courage and, over the past two decades, has led racial reconciliation efforts in the state. Blacks in Pickering's hometown of Laurel support him even as they wonder what the fuss in Washington is all about. Larry Thomas, owner of a pharmacy in Laurel, told the New York Times: "Over the years I've seen him work with black leaders and really try to make an effort to understand and help the community. That's a progressiveness that we need to see more of in this state." A black councilman offered this: "So many people are angry about the past. But if the judge has moved beyond his past, I think we should all try to do the same."

Notwithstanding that the ABA in its review of Pickering found nothing to object to in terms of ethics, committee Democrats have. Last fall, Pickering asked lawyers who had appeared in his court to write letters in support of his nomination. Russell Feingold worries whether this does not raise an "appearance" problem, and a legal ethics expert, consulted by Legal Times, has said the solicitation might amount to "unintentional coercion." Pickering's actions strike us as unwise, but not unethical. Another "ethics issue": During the sentencing phase of a cross-burning case in 1995, Pickering, frustrated with the Justice Department's handling of the case, had a phone conversation with the then head of the Civil Division, a friend from Mississippi, who had no line authority over the prosecutors involved and in any case took no action. John Edwards has seized on this phone call to charge Pickering with an "ex parte" communication in violation of the Code of Judicial Conduct. But on close inspection, the allegation falls apart.

As a judge, Pickering has at times gone off point, as it were, to offer his views about the law at hand or some public controversy. In a 1993 voting rights case, for example, he criticized the Supreme Court's "one man, one vote" principle. In another, he elaborated his views on federal pension law. Judges of all jurisprudential stripes have been known so to digress, and it's not a practice we'd hold up as ideal. Still, Pickering's record on the bench, taken whole, is not that of a judge who twists the law to reach decisions enforcing his own personal or political views.

Pickering has repeatedly tried to assure committee Democrats that as an appeals court judge he would read the law as it is, not rewrite it to suit his views. But Democrats see that Pickering is a conservative and that he is a judge, and they seem determined to believe that he would be a results-oriented judge. Abortion, as you might expect, is a huge Democratic concern. Pickering, who has never had to rule on an abortion case, disagrees with the Supreme Court's abortion jurisprudence. Long before becoming a judge, he supported a constitutional amendment that would have overturned Roe v. Wade. Queried on all of this, Pickering has insisted that as an appellate judge he would of course adhere to what the Supreme Court has said on the issue.

There's really nothing more that Pickering can say in his own behalf on that or anything else. Which of course is his problem, just as it was Robert Bork's problem 15 years ago. There's little a judicial nominee can do in his own behalf when the Judiciary Committee is preparing to vote no. Needed in these circumstances is an energetic executive, a president willing to argue publicly for his nominee--in the present case, to challenge the inaccurate and unfair portrayals of Pickering and to expose the Democratic effort for what it is, an attempt to force the president to choose judges more to the liking of Al Gore. Let there be no mistake: Pickering is Bush's nominee, not Trent Lott's. This is a battle for the president to fight, for if Pickering loses, it will be the president's defeat.

--Terry Eastland, for the Editors