The Left Picks Fight Against Charles Pickering

A nomination suddenly gets targeted

“The assault was so easy,” observed reporter Stephen Henderson. “Take a white, conservative, religious judicial nominee from Mississippi. Pluck a few votes from his career in the state Senate, a handful of cases from his time on the bench. And then use them to brand him as an enemy of racial progress.”

So it was that liberal groups drove Democratic senators to oppose President George W. Bush’s nomination in 2001 of Charles W. Pickering to a seat on the U.S. Court of Appeals for the Fifth Circuit.

The battle over Bush’s nomination of Miguel Estrada has enduring significance because Senate Democrats in 2003 dramatically escalated the confirmation wars by resorting to the filibuster to defeat it. But Pickering has the distinction of being the first Bush nominee to have been subjected to the Left’s full-scale attack.

That attack illustrated several lessons. First, liberal groups would dictate to Senate Democrats which nominees to oppose. Second, the Left would wield the race card even against nominees with admirable, if not heroic, records on race. Third, the Left aimed to make a nominee’s personal pro-life convictions disqualifying. Fourth, every confirmation fight was a proxy battle over the next Supreme Court nomination.

* * *

Charles Pickering was four days shy of his 64th birthday when George W. Bush nominated him to a Fifth Circuit seat in Mississippi in May 2001. Pickering had served with distinction on a federal district court in Mississippi for the previous decade, and the American Bar Association’s judicial-evaluations committee gave him its highest rating of “well qualified” for the Fifth Circuit seat.

Charles W. Pickering (in mid-1970s)

With Democrats in control of the Senate, Judiciary Committee chairman Patrick Leahy moved Pickering’s nomination ahead of nominations that Democrats considered controversial, and scheduled Pickering’s confirmation hearing for October 2001. But the day before the hearing, People for the American Way, Alliance for Justice, and other groups on the Left announced their opposition to the nomination. At the hearing itself, Chuck Schumer declared that Pickering would have to appear for a second hearing. And Pickering was soon deluged with new demands for all of his unpublished opinions. As Pickering writes in his memoir A Price Too High, he was learning to his surprise that it was the outside groups on the Left, rather than Democratic senators, who “decided the course of action in the confirmation process.”

* * *

You might have thought that Pickering would have received ardent praise for his courage on matters of race. Jones County, Mississippi, where Pickering lived, was a hotbed of Ku Klux Klan activity in the 1960s. An especially vicious Klan group had its headquarters in Pickering’s hometown. It was led by the notorious Sam Bowers, who planned the 1964 murders of James Chaney, Andrew Goodman, and Michael Schwerner and who was described by Time magazine as the “most dangerous man ever to don a white hood.”

Pickering explains the decision he made when he became the Jones County prosecutor:

I faced three choices: (1) stand against the Klan and its violence and stand up for the rule of law; (2) side with the vocal and violent minority to oppress the rights of African Americans; or (3) do as many did, remain silent and do nothing. This was a life decision, a moral crossroads, a choice that would determine who I was. I took a stand against the Ku Klux Klan and its violence. I really didn’t consider any other option. It was the right thing to do; it was what my faith told me I ought to do; it was what my parents had taught me to do. But at that time in our history, it was not the easy thing to so.

Pickering prosecuted Klansmen and worked closely with the FBI. When Bowers was prosecuted for a murder by firebombing, Pickering testified against him. A father of young children, Pickering was not deterred even when he learned that the Klan planned to attack him physically.

When his town’s schools were desegregated, Pickering opposed efforts to create a new private school for whites and instead kept his kids in public school, “even though it meant our children were bused across town at a time when there was a long-established private school one block from our home.”

When Pickering was elected to the state senate in 1971, he won two-thirds of the black vote.

Pickering’s nomination to the Fifth Circuit won strong support from state and local civil-rights leaders, including Charles Evers, brother of the martyred civil-rights activist Medgar Evers. It was also endorsed by every statewide elected Democrat.

Lest you think that Pickering’s memoir, from which I draw, is inaccurately self-serving, the “exhaustive review” that Philadelphia Inquirer reporter Stephen Henderson conducted and presented in a long article in March 2003 is among several independent investigations that broadly confirm Pickering’s account. Given the racially charged topic, I will note that Henderson is an African American from the North (Detroit) who told Pickering that Pickering “would likely be surprised to know how liberal [Henderson] considered himself.” Henderson summed up Pickering’s “30-year public record [as] reflect[ing] deep compassion and a penchant for inclusion.”

I don’t mean to suggest that Pickering’s admirable courage on race before he became a district judge should have exempted his record as a district judge from criticism, whether on racial or other issues. But it’s striking that the most prominent criticism of his judicial record concerned his rejection of the federal government’s request that Daniel Swan, who was convicted of burning a cross in front of the home of an interracial couple, be sentenced to 7-1/2 years in prison. Critics outrageously insinuated that Pickering was sympathetic to racial hate crimes. In fact, as Henderson explained:

Swan was the least involved of the three defendants, and the other two got probation deals from prosecutors…. Pickering thought it was unfair for Swan to do seven years while his compatriots walked free. But describing the crime as a despicable act of terror, he still gave Swan 27 months in jail.

* * *

Pickering’s own assessment is that what really fueled the opposition to his nomination was the issue of abortion. In various capacities before he became a judge—as a legislator, as a member of the Republican National Convention’s platform committee, and as president of the Mississippi Baptist Convention—he sought to overturn Roe v. Wade and to protect the lives of unborn human beings. As a judge, Pickering had not ruled in any abortion cases, and he made clear that he understood himself to be obligated to follow Supreme Court precedents. But that didn’t stop the Left from condemning him as a “staunch opponent of women’s reproductive rights,” whose “strident anti-choice position is especially troubling.”

A broader purpose of defeating Pickering’s nomination would be to send the message to the Bush White House that Democrats would stop any nominee who could be seen as a threat to Roe v. Wade. Although that message was sent on Pickering’s nomination, its real target was the next Supreme Court vacancy.

* * *

To make a long story short: In March 2002, a month after Pickering’s contentious second hearing, the Judiciary Committee defeated his nomination by a party-line vote of 10 to 9. After Republicans won control of the Senate in the November 2002 elections, Bush renominated Pickering, and in October 2003 the committee, again on a party-line vote, reported his nomination to the Senate floor. On October 30, 2003, Pickering became the fourth Bush appellate nominee to be filibustered, as the cloture vote on his nomination received only 54 yeas.

On January 16, 2004, President Bush recess-appointed Pickering to the Fifth Circuit. Pickering’s intersession recess appointment expired on December 8, 2004, thus ending his judicial career.

Fortunately for Pickering—and one large reason that it made sense for him to accept the recess appointment even with the risk that his judicial tenure might come to an abrupt end—he satisfied the Rule of 80 for a lifetime judicial pension in May 2004.