Historians' Petition Against the Nomination of Charles Pickering, Sr.
NYT NEWS BULLETIN 10-31-03 "Senate Republicans failed on Thursday to overcome a filibuster blocking the vote on Charles W. Pickering's nomination to a federal appeals court seat."
This petition was first circulated last spring. It has once again received renewed attention now that Mr. Pickering's nomination has won the approval of the Senate Judiciary Committee.
President George W. Bush
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear President Bush:
On behalf of eighty historians of the South and the African American experience?most of them teaching and writing in the South?we are writing to urge that you withdraw the nomination of Judge Charles Pickering, Sr. to the Fifth Circuit Court of Appeals.
As scholars and researchers who have spent our career teaching and writing about the American South, we believe the time has come to turn to the future. Unfortunately, the career of Judge Pickering reflects some of the most shameful aspects of the region?s history and he should be rejected for the following reasons.
1. Judge Pickering has been evasive and misleading in describing his personal history insofar as race relations in Mississippi are concerned.
In response to questioning about the Mississippi?s State Sovereignty Commission that was set up to spy on (and intimidate) advocates of civil rights, he claims he knew little of the agency. His sworn testimony is inconsistent with the following facts. As a state senator, he twice voted to continue funding the agency. Secondly, the work of the Commission was known to almost every adult Mississippian and it challenges credulity to believe that Judge Pickering, as a prominent political figure, was unaware of the organization and its workings. Third, his old law partner during the 1960s was the late Carroll Gartin, a passionate segregationist and?as Lieutenant Governor of Mississippi? a key member of the Commission. Lt. Governor Gartin was personally and directly involved in instigating investigations of ?subversive? Mississippians who were critical of segregation and racial discrimination. Fourth, when the Commission?s papers were made public, the public learned that Judge Pickering (then a state senator) had contacted the Commission to ask about materials they had on workers striking against the Masonite corporation in his hometown of Laurel in 1971 and 1972. When confronted with this discrepancy in 2001, Judge Pickering acknowledged he had contacted the Commission and explained that he was concerned about possible Ku Klux Klan infiltration of the union involved in the organizing drive. But the relevant Sovereignty Commission Memo of January 5, 1972 clearly shows that the concern was not over possible violence by the KKK, but over the involvement of the Southern Conference Education Fund, a civil rights organization that the memo describes as led by "known Communists."
Due to the questioning of Senator Edwards of North Carolina, members of the Senate are (or should be) aware of the facts involved in Judge Pickering?s intervention on behalf of a man convicted of burning a cross in Mississippi? an action that several independent legal ethics experts have called a flat-out violation of the ethics code for federal judges. But it is worth emphasizing that Judge Pickering acknowledged under questioning that this was the only time in his entire judicial career he had ever undertaken such an act of intervention.
Judge Pickering?s defenders point to his testimony against Klan leader Sam Bowers in 1967 (which consisted of affirming in three lines that Bowers had a bad reputation and taught Sunday School) as proof that he was, in Senator Mitch McConnell?s words, a man of ?great moral courage.? If he had taken that stand in the 1950s or early 1960s, this might be an accurate description. But this was 1967, not 1963. As historians familiar with the case have shown, the white leadership of Laurel had already turned against Bowers after the Klan started dynamiting Laurel businesses and threatened chaos. And it is worth noting that Judge Pickering explicitly said at the time that his opposition to Bowers in no way meant that he had slackened in his support for "our Southern way of life.? He still blamed "outside agitators" for stirring up "racial hatred."
2. Much of this might seem historically irrelevant were it not for the fact that Judge Pickering's record as a judge seems consistent with that personal history. When Senator Russell Feingold asked him during his confirmation hearings about the tactics used by Mississippi counties to keep African-Americans from voting in the 1960s, Judge Pickering responded that some counties were more ?progressive? than others in allowing them to vote. He seemed unaware of (and unconcerned about) the violence and harassment adopted or encouraged by local officials to keep blacks from voting as late as the mid-1960s.
His supporters note that the great majority of his decisions as a federal judge have been upheld on appeal. But the fact is that he has had twenty-six decisions overturned by a very conservative Fifth Circuit Court in roughly ten years on the bench. In fifteen of these reversals the Circuit Court, one of the more conservative in the nation, reversed Judge Pickering for ignoring or violating "well-settled principles of law.? A careful analysis shows that eleven of those 15 reversals involved civil rights, criminal procedure, labor issues or other fundamental constitutional protections. (In contrast, Judge Edith Clement, another Bush appointee recently confirmed to the Fifth Circuit, had only one similar reversal of this kind during her slightly shorter tenure as a district judge.)
What is particularly troubling is that Judge Pickering has expressed skepticism over such well-established principles as ?one person, one vote.? (In one opinion, he called the one person/one vote decision ?obtrusive,? and described it as a legal principle that legislatures have reluctantly learned they "must live with.") As a judge he has bluntly questioned the motivation of individuals suing under anti-discriminatory employment laws. ("When an adverse reaction is taken affecting one covered by such laws, there's a tendency on the part of the person affected to spontaneously react that discrimination caused the action,? he said on another occasion).
When Senator Edward Kennedy questioned him about his tendency to dismiss employment discrimination claims, Pickering replied that, since the EEOC resolved cases in which discrimination had actually taken place, those that reached the district court were generally without merit. (In reality, because of the EEOC?s massive backlog, the courts are often the only option for individuals suffering from discrimination.)
We need not return to Judge Pickering?s actions before he was appointed to the bench?his defense of anti-miscegenation statutes as a law student, his 1964 decision to leave the Democratic Party because it had ?humiliated? white Mississippians by supporting civil rights, or his anti-civil rights positions as a State Senator?in order to conclude that he would be unlikely to defend forcefully the civil rights of individuals in the Fifth Circuit. In the aftermath of Senator Trent Lott?s resignation as Senate Majority leader, we heard a great deal of rhetoric about the importance of insuring equal rights for all Americans. The elevation of Judge Pickering to the second highest court in the land is inconsistent with those rhetorical commitments.
Based upon his record as a Judge and his prior responses to questioning from members of the Judiciary Committee, we urge you to withdraw his nomination to the Fifth Circuit Court of Appeals. Many of our citizens continue to suffer from the consequences of our nation?s long history of racial discrimination. We urge you to nominate only those individuals who have a clear record of commitment to the enforcement of civil rights laws as well as other legislation designed to protect the rights of our citizens as these rights are reflected in our Declaration of Independence and our Constitution. We do not believe that Judge Pickering meets that standard.
Sincerely yours:
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