Nominated to the Fifth Circuit in May 2001 (reportedly as a favor to Trent Lott, back when he could command favors), Pickering gets under the skin of Senate Democrats. He was voted down by a Democrat-dominated Senate Judiciary Committee, but renominated by Bush after the balance of power changed. The renomination, even Bush will admit, was "unprecedented." And it provoked a strong reaction.
"What Mr. Bush did was the political equivalent of giving black America his middle finger," said NPR radio personality Tavis Smiley. "He did that because he thinks he can get away with it."
But so far Bush hasn't "gotten away with it." Pickering made it out of committee this time on a 10-9 party-line vote. But in early November, Democrats blocked a second attempt to end debate on Pickering's nomination, so he remains in filibuster limbo.
If the Senate Democrats believe what they are telling their donors, it's no surprise that they want to stop Pickering. But when the Village Voice is running articles debunking those charges, the notoriously touchy Jim Jeffords is voting with Republicans, and the New York Times is running reporting pieces on widespread support for Pickering from the black community in Mississippi, it's time for the Democrats to reexamine their own allegations.
The memo, a fundraising email from New Jersey senator Jon Corzine to Democratic Senatorial Campaign Committee donors, rehearses three charges under the heading: "Why must the Democrats continue their fight against Charles Pickering?"
(1) "While in law school, Mr. Pickering wrote an article suggesting ways the state of Mississippi could better enforce its ban on inter-racial marriage."
Pickering wrote the article in question in 1959 as a required academic exercise at a time when more than 20 states had laws against miscegenation. Nowhere in the article does Pickering endorse such laws.
The Senate had this article in hand when it unanimously confirmed him to the federal bench nearly 13 years ago. At the time, Pickering testified that "marriage between people of different races is a matter of personal choice. It is not appropriate for a state to make that decision, and it is my belief that miscegenation statutes are unconstitutional." The Senate took him at his word in 1990, but Democrats have since become skeptical, for reasons that are likely more political than moral.
(2) "As a state senator in the 1970's, Mr. Pickering worked to repeal important provisions of the Voter [sic] Rights Act."
In 1976 and 1979, Pickering co-sponsored legislation asking Congress to allow "open primaries." The legislation opposed an amendment to the Voting Rights Act. The amendment permitted gerrymandering to give racial and ethnic minorities a majority in a district, while prohibiting gerrymandering to dilute the voting strength of a minority--Pickering called it "affirmative segregation."
Minority-majority districts are an issue about which reasonable people disagree, and Pickering's record suggests that his opposition does not spring from racism. None of Pickering's decisions on a voting rights or employment discrimination case has been reversed by a higher court.
The chairman of the Mississippi legislative black caucus, Phillip West, was quoted in the Hill on October 1: "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." West is joined in his endorsement of Pickering by the past 18 presidents of the Mississippi State Bar, all the major newspapers in Mississippi, and all Democrats elected to statewide office in Mississippi.
(3) "In 1994, he went out of his way to seek a more lenient sentence for a convicted cross-burner."
This charge has drawn the most attention, and if the implication were true, the attention would be justified.
Senator Lindsey Graham agreed that "any American would be offended by the idea that the president would put a judge on the bench who goes out of his way to give cross burners a break," but the fact is, said Graham, Pickering "lectured [the defendant] on cross-burning in a way that every American should be proud of."
The facts of the case are straightforward. Three men were arrested for burning a cross. Two plea-bargained their way out of jail time, including the ringleader. The third pled not guilty, was convicted, and a sentence of seven years was recommended. Pickering found the disparity in sentences unfair and, after appealing to the Clinton Justice Department for a ruling on relevant mandatory sentencing guidelines, reduced the convicted man's sentence to 27 months.
Pickering told the defendant that what he'd done was "heinous," "dastardly," and "deplorable," and said, "The type of conduct that you exhibited cannot and will not be tolerated."
New York senator Charles Schumer finds this mystifying. "Why anyone would go the whole nine yards," he has said, "and then some, to get a lighter sentence for a convicted cross burner is beyond me." But Pickering was not alone in his assessment of the case. One of the prosecutors wrote to the judge that he "personally agreed" that the original sentence was "draconian." In reducing that sentence, Pickering did what judges do every day when they balance competing goods and examine the particulars before them as fairly as possible.
Democrats and their affiliated interest groups are understandably reluctant to let go of their characterization of Pickering as a racist and a reactionary, especially since it goes over well with donors. But a federal judge deserves to be treated as more than a fundraising tool.
If Pickering could "go out of his way" to treat a cross-burner as an individual deserving of fair treatment, surely he deserves no less from Senate Democrats.
Katherine Mangu-Ward is a reporter at The Weekly Standard.