Forget the Bickering Over Pickering

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Forget the Bickering Over Pickering
by James Hall, Associate Editor

March 12, 2002

"Leaning Left"

James Hall "President Bush did not have a large mandate. There is no mandate, in my view, to skew the courts to the right. And so I think you're going to see a Judiciary Committee that's really going to be looking for mainstream judges, and those judges that they find are out of the mainstream I do not believe will have Democratic support." -- Senator Diane Feinstein (D-CA), member of the Senate Judiciary Committee.

The attempt by the Bush administration to make Federal District Court Judge Pickering the next conservative cause celebre is pointless. Pickering is not a Judge Thomas, a mediocre but staid conservative--he's closer to a Judge Bork, whose views were and are well out of the mainstream of American legal thought. He's a federal judge with a poor record, an inferior choice for the Fifth Circuit Court of Appeals who was picked for ideological reasons, not for his judicial competency. This week the Senate Judiciary Committee will serve notice that poor ideological choices aren't going to sail through the approval process.

Federal Judge Charles Pickering By all accounts Judge Charles Pickering is a good human being, a man with many friends--including Democratic friends--in Mississippi. He got public support from Charles Evers, the brother of slain civil rights leader Medgar Evers, and from Fred Hunger, brother-in-law to former Vice President Al Gore. He got a passing grade from the American Bar Association, which renders such a grade on a judge's years of service and legal qualifications rather than the quality of his or her work.

It's Judge Pickering's positions on the law that make him an inferior candidate for an appeals court seat, not his personal character. According to Jonathan Groner of the Legal Times, Pickering's "consistently conservative position on employment, discrimination, voting rights, abortion, and criminal law" make him a candidate outside the mainstream of American jurisprudence.

Stacey Barney of the organization Black Electorate points out Judge Pickering's lukewarm-at-best civil rights record for the Fifth Circuit, which covers Alabama, Mississippi, and Louisiana, the district with the largest African-American population (42%) in the US. Pickering's opposition to the "one man, one vote" doctrine behind the 14th Amendment and his objections to some of the remedies provided by the 1965 Voting Rights Act makes his position on civil rights outside the mainstream.

His support as a state senator for a constitutional amendment against Roe v. Wade (1976), which he subsequently renewed as moderator of Mississippi's Southern Baptist Convention (1983) puts him outside the mainstream on abortion, too.

His standard of support for cases brought before him by the Equal Opportunity Employment Act show a prejudice against employee who brings a case to court rather than going through the lengthy and time-consuming EEOC hearing process.

Many of the 15 cases (out of 26 overturned) returned to Judge Pickering by the Fifth Circuit were cases well-established by previous legal precedents that Pickering either failed to properly research or simply ignored. His off-the-record efforts to avoid a mandatory minimum sentence in a cross-burning incident in 1994 also calls his judgment into question.

Republicans have accused Democrats of maliciously blocking Pickering and slowing President Bush's judicial nominations, but they have their own record to run away from. Three out of four of President Clinton's nominations to the Fifth District never even came up for a Republican-controlled Judiciary Committee vote, much less approval in the Senate. Between 1995 and 2000, when Republicans controlled the Senate judiciary process, some 35% of Clinton's nominations for appeals court were blocked, contributing to the judicial backlog that now exists.

Since last June, the Democrat-controlled Judiciary Committee has approved 34 of President Bush's nominations for the federal judiciary. But the Pickering vote sends a clear message to the White House that poor choices made for ideological purposes will not be rubber-stamped by the Committee. The president would do well to heed that message. ***

Photo of Federal Judge Charles Charles Pickering courtesy of the Mississippi State Auditor