Who Is Charles Pickering? By Stacey Barney

This week the nomination of U.S. District Court Judge Charles Pickering, Sr. to the 5th Circuit Court of Appeals will be brought before the Senate Judiciary Committee for a deciding vote, and it is unlikely that the Pickering nomination will be confirmed. But the question as to why Pickering would not be the correct fit for the 5th circuit has become something of a media - flamed political spectacle, which should give any observer pause to wonder what is this really all about?

The NAACP would have us believe the blocking of the Pickering nomination is an honorable effort to maintain the integrity of civil rights legislation, while other groups such as the Alliance for Justice, People for the American Way, and the National Abortion and Reproductive Rights Action League (NARAL) point with worry lines etched across their brows to Pickering's "consistently conservative record on employment, discrimination, voting rights, abortion, and criminal law (Jonathan Groner of Legal Times, 2002)."

However, Republicans who support Pickering tell a different story. Plainly they call the scrutiny of Charles Pickering and his judicial record character assassination. In fact, Sen. Mitch McConnell (R-Kent) says this about the judge: "The record of Charles Pickering can be expressed in two words: moral courage. When victims of racial injustice looked for justice, they found it in one man, Jones County Attorney Charles Pickering." Yet, still others daresay the grumblings blocking Pickering's judicial promotion is nothing more than a round of political payback for democrats who remember "three Clinton appointees who were denied [even] the courtesy of a hearing, much less a vote, when Republicans controlled the Senate (Philip Terzian of Pittsburgh Post Gazette, 2002)."

So who is to be believed? Is the Pickering nomination in fact the good fight to be fought and won in the name of civil rights or is it simply new political battleground ripe for partisan posturing? Well, the first question to ask really is who is Charles Pickering, anyway? Is he the champion of minority civil rights who braved the danger of testifying against Ku Klux Klan members during the height of racially motivated slayings or is he the segregationist throwback, a bigot who has written in support of criminalizing interracial marriages? It's really hard to say, since his record tells us that Pickering is both these men.

To my mind this fact in and of itself necessitates if not demands the careful character scrutiny that Judge Pickering has been subjected to since his first Senate hearing on October 18th - the same scrutiny that some on Capitol Hill are calling regrettable character assassination.

In these hearings we have discovered that yes, Pickering has testified against Klan members. And yes, as Johnny Magee, an African American Laurel business man and member of city council defends, Pickering has even helped Laurel, Mississippi "civic leaders...develop after-school programs to keep Black males from coming into his court on criminal charges." But as Eugene Bryant, President of the NAACP Mississippi State Conference points out, Pickering (when a senator) has "also voted to support the Sovereignty Commission, a state - funded agency established to thwart desegregation efforts resulting from the landmark Brown v. Board of Education." Additionally, Pickering, according to Bryant, has also blocked "the implementation of the 1965 Voting Rights Act, keeping the Mississippi Legislative all white until" 1980. Furthermore, Bryant censures Pickering for referring to "the fundamental 'one-person, one-vote' principle as obtrusive" and "[criticizing] the creation of majority-black districts as 'affirmative segregation.'" While all this and more seems to be true of Charles Pickering, the final nail in his coffin was, ironically, a burning cross.

In 1994 Mickey Herbert Thomas (25), Daniel Swan (20), and a 17-year-old who was charged as a juvenile were suspected of burning a cross on the lawn of a Black homeowner in Pickering's jurisdiction. Thomas and the juvenile offender both reached plea agreements with sentences of supervised release without prison time. Swan, however, went to trial and was convicted. He faced 7 ½ years before Judge Pickering complained to the Department of Justice. Although, the Department of Justice declined to assist Pickering, prosecutors in the case did end up dropping one charge against Swan, and Pickering subsequently sentenced the young man to 27 months instead of the 7 and a half years initially sought by state prosecutors. Pickering defends his actions by pointing out what he believes was a disparity in sentencing among the three assailants. It was the juvenile defendant, Pickering claims, who was in fact the ringleader, and it disturbed Pickering that this defendant did not receive one day in jail. While I agree that the point regarding sentencing disparity is a good one - all should have received prison sentences, I am less sure that this disparity justifies Pickering granting a more lenient punishment to Daniel Swan, a not only culpable defendant (though perhaps arguable in degree), but a convicted defendant. The criminal system rarely treats African American youth with the same consideration.

But perhaps most troubling in regards to Pickering's court decisions in discrimination and civil rights cases aside from the fact that "[Pickering] has often ruled against civil rights claims (Jonathan Groner of Legal Times, 2002)," are the opinions rendered in these cases. Pickering's opponents suggest that often these opinions reflect the judge's personal biases and characterize the language Pickering chooses as harsh and insensitive to plaintiffs.

In Foxworth, et al. v. Merchants Co., a case involving two Blacks who jointly owned a grocery store, and sought damages under the civil rights laws against a supplier who stopped extending credit, Pickering wrote: "When an adverse action is taken affecting one covered by [civil rights] laws, there is a tendency on the part of the person affected to spontaneously react that discrimination caused the action. All of us have difficulty accepting the fact that we sometimes create our own problems."

In Seeley v. City of Hattiesburg, a case involving a Black firefighter who was terminated, and also sought damages under the protection of civil rights laws, Pickering wrote: "The fact that a Black employee is terminated does not automatically indicate discrimination...This case has all the hallmarks of a case that is filed simply because an adverse employment decision was made in regard to a protected minority."

Elliot Mincberg, legal director of People for the American Way raises an eyebrow at such statements, and their presence in court opinions saying, "When [Pickering] writes that this case is an unwanted effect of the anti-discrimination laws, this reflects a hostile attitude and sends a message to future plaintiffs. That's very troubling to us."

With all this before us, it makes sense then that the NAACP, along with the Magnolia Bar Association (a predominately Black Mississippi bar group), and a host of other groups looking to protect the rights guaranteed by the constitution, would dare to question and block the nomination of this man, Charles Pickering. His record is one that tells two tales, and while the nuggets regarding Ku Klux Klan testimony and an after-school program for African American youth sound nice, there are too many other aspects of his record that are just plain doubtful and troubling. In looking at Pickering's record it is all the more important to remember that racism did no die with Malcolm X or Martin Luther King Jr. In fact, racism is far more potent as it has become almost a seamless part of American society, especially within the context of our nation's governing bodies.

No, racism did not die. It simply became institutionalized. And it is this institutional racism that keeps Black youth in the penal system without rehabilitation efforts that address the phenomena of miseducation and poverty, which first put our youth in jails and on death row. If confirmed would Charles Pickering be an agent to combat this reality of institutional racism or would he enable it? I'm not so sure. His record doesn't tell me he would be a combatant against racism. His record just makes me nervous.

The second significant question to be asked concerning the Pickering nomination is in regards to the real importance of the 5th Circuit seat, a seat with authority in Louisiana, Mississippi and Texas - densely populated Black territory. If Dianne Feinstein (D-Calif) is to be believed, "...this 5th Circuit seat is as important as a Supreme Court seat...The 5th Circuit once served as a trailblazer for the protection of individual rights - voting rights, employment discrimination. So this becomes a pivotal position for people who have fought for these rights for decades." Pickering's record certainly does not strike me as that of a civil rights trailblazer. At best, perhaps he is a racial progressive, but yet not a fit for this "pivotal" 5th Circuit seat.

So, in the end, who is Charles Pickering? A segregationist racist or a man of moral courage who is an unfortunate political scapegoat? If these fundamental questions can't be answered with any sense of surety, then Pickering does not belong on the 5th Circuit bench.

Stacey Barney is an editorial page writer for BlackElectorate.com. Ms. Barney can be contacted at snbarney@hotmail.com

Stacey Barney

Monday, February 25, 2002