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Pickering deserves another unanimous confirmation

By John Nowacki
web posted September 29, 2003

Federal appeals court nominee Charles Pickering, Sr.'s name will be dragged through the mud again this week as the Senate Judiciary Committee prepares to vote on his nomination. The U.S. District Judge was originally nominated to the Fifth Circuit in May 2001 and narrowly defeated last year by a partisan committee vote following a smear campaign run by liberal interest groups and Senate Democrats.

This time, however, he will make it out of committee and to the Senate floor. But that doesn't make the character assassination any easier for him to endure, nor does it make it any easier for him to get a fair vote in the Senate. Pickering has more than enough support for confirmation, and that's why the radical left will be in full hysterical mode as his name comes up. That's also why he will be joining Priscilla Owen, Bill Pryor, and the now-withdrawn Miguel Estrada on the list of nominees undergoing the first judicial filibusters in the history of the Republic.

Charles PickeringJudge Pickering has been attacked on several issues, including criticism from a prominent left-wing group that faulted him for statements on the authority of the Bible made back before he was a judge -- when he was President of the Mississippi Baptist Convention, addressing that denomination's annual meeting on a purely theological matter.

But the central attacks on Judge Pickering revolve around one issue: race. Left-wing groups and their Senate allies have tried to paint him as a racist for the past two years, disregarding an impressive record on race relations compiled over the past 50 years.

During the 1960s, he worked with the FBI to prosecute violence against blacks, publicly condemning racially motivated violence. In 1967, he testified against the Imperial Wizard of the KKK in Mississippi -- charged with the fire-bombing murder of a civil rights activist -- putting himself and his family at risk.

In the 1970s, he hired the Mississippi Republican Party's first black political worker. He has served on the board of the University of Mississippi's Institute for Racial Reconciliation. He helped create a program for at-risk black youths in his hometown of Laurel.

He has the strong support of many of his fellow Mississippians, black and white, from both sides of the aisle. In fact, many in the black community who have known him and worked with him wanted to see his confirmation last year -- judges, attorneys, government officials, clergymen, civil rights workers, and others.

Earlier this year, the Atlanta Journal-Constitution analyzed Judge Pickering's record and reported that there is no evidence of racism in his record.

And just last week, Mississippi's Democratic governor and three others from his party who hold statewide office wrote to the Senate, saying: "Mississippi has made tremendous progress in race relations since the 1960s and Charles Pickering has been part of that progress. We ask that the United States Senate stand up to those that malign the character of Charles Pickering, and give him an up-or-down vote on the Senate floor."

But Judge Pickering's opponents would rather pretend that all this is irrelevant. They point instead to various incidents or decisions -- twisting some facts and ignoring others -- and claim this makes their case.

They complain about incidental contacts 30 years ago (while he was a state senator) with the Mississippi Sovereignty Commission, a group Pickering voted to shut down. What they don't mention is that he was merely ran into an employee in a capital hallway and asked to be kept informed about a union infiltrated by Ku Klux Klan members, one of whom had been charged with murder -- with Pickering's signature on the affidavit supporting the indictment. Information about that contact is available thanks to Pickering, who voted to preserve the commission's records instead of destroying them.

His attackers point to an academic article Pickering wrote while a law student in 1959, analyzing -- after a relevant court decision -- how Mississippi's interracial marriage statute differed from those in other states. They ignore the fact that he didn't advocate or support the statute, just as they ignore his statement during his 1990 district court hearing -- repeated in his 2001 hearing -- that "marriage between people of different races is a matter of personal choice," and that those statutes are unconstitutional. They also ignore his rulings that follow Supreme Court precedent and put those words into practice.

Their favorite attack is to insinuate that Judge Pickering is soft on cross burning. In a 1994 case, Pickering expressed concern about the sentence federal prosecutors wanted for a man involved in burning a cross at an interracial couple's home. But there's more to the story than that.

With the case before his court, Pickering realized that the ringleader of the three people involved -- who had previously shot at the couple's house -- cut a deal with prosecutors and got off without any jail time, while prosecutors demanded seven and a half years in prison for another defendant.

Pickering thought the proposed sentence was disproportionate and asked the government lawyers how the two sentencing statutes they cited had been used in other federal courts. He asked at least three times without getting an answer, until they finally dropped their sentencing request down to two and a half years.

Judge Pickering sentenced the man to 27 months, chewed him out from the bench about his "despicable act" that "cannot and will not be tolerated" and advised him to spend his prison time doing something useful like reading up on how to maintain good race relations.

That's it. Pickering was concerned about a possible sentence even prosecutors called "draconian," sentenced the criminal to prison, and expressed his outrage at "an area that we've got to stamp out" because "we've got to learn to live, races among each other." But you'll never hear that listening to Senators John Edwards, Chuck Schumer, or People for the American Way.

When he was nominated to the federal district court, the Senate Judiciary Committee supported him unanimously. Among those who voted for him were current committee members Patrick Leahy, Ted Kennedy, Joseph Biden, and Herb Kohl. His nomination went on to the full Senate, where he was confirmed. Unanimously.

Judge Pickering's character has not changed since then, and neither has the quality of his record. He has over a decade of experience. The people who know him best support him. The American Bar Association examined his qualifications and commitment to equal justice and pronounced him well qualified. And he has enough votes from Republicans and Democrats to be confirmed, again.

Charles Pickering deserves fair treatment from the committee, and he deserves that up-or-down vote in the full Senate. For the committee part, at least, it looks as if he is finally going to get it.

John A. Nowacki is Director of Legal Policy for the Free Congress Foundation.

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