Mention the name Charles Pickering to anyone but the most committed news junkie, and you're apt to get a blank look or, at best, one of dim recognition. In the era of the 24-hour news cycle aimed at the ever-shortening attention span, the bitter Senate battles over the federal judiciary in which Pickering played so dramatic a part a few years back can seem like ancient history.
But with the publication of A Price Too High, Pickering's insider account of the nearly four years he spent in limbo as a nominee to the federal bench, as Democrats and their press enablers trashed his record and reputation, we're reminded of how extraordinarily much is at stake in the ongoing battle for control of the nation's courts; and how far one side, at least, is willing to go to win the battle. Liberals are no longer even coy about using the courts to achieve social engineering ends that they cannot get through democratic means. "Environmentalists, prison reformers and consumer advocates have learned that what can't be won in the legislature or executive may be achievable in a federal district court where a sympathetic judge sits," liberal Wise Man Joe Califano wrote in a 2001 Washington Post editorial. Conservative Wise Man C. Boyden Gray, quoted in Pickering's book, notes that Nan Aron, president of the liberal activist group Alliance for Justice, unapologetically echoed that view during a debate at the Federalist Society. According to Gray, she said that with Republicans at the time in control of Congress "we have to look to the courts to create new rights that we won't be able to get from the legislature."
It's hard to imagine a more direct challenge to Republicans and their professed beliefs than judicial activism. If recent history is any guide, the issue serves Republicans well at the polls. Yet control of the courts has all but disappeared from the party's radar over the past several years, reflecting the GOP's amazing aimlessness and desertion of principle.
That's why it is well worth revisiting the Pickering case in its ugly but highly illuminating particulars. If ever there was a poster boy for the kind of judge that Senate Democrats and their left-of-center, activist allies will fight to the political death to keep off the bench—the better to install judges who share their social agenda—it comes in the unlikely person of this gracious grandfather of 21. More dramatically than any confirmation battle in memory, the Pickering case demonstrates that liberals will seemingly say anything—and tarnish even the most sterling character—to keep control of the nation's courts.
Of course, cynics see this as merely part of the game. Politics, they'll say, ain't beanbag, and weren't many Clinton nominees to the federal bench similarly done in by Republicans? No, not really—never with the same degree of ruthlessness. Indeed, evidence of the campaign of character assassination perpetrated against Charles Pickering is just a click away: search the terms "Pickering" and "racist" in Nexis and you get more than 600 hits. Under any circumstances, a false racism charge, made for obviously political reasons, would be unacceptable. In Pickering's case, it was worse than that. For in civil rights–era Mississippi, when courage among whites was at a premium, he was nothing short of heroic: the sort of person whom, were he not on the wrong side of the political spectrum, liberals would embrace as a moral exemplar.
On January 7, 2001, Pickering learned during a duck-hunting trip that President Bush had nominated him for a seat on the Fifth Court of Appeals. The prospect of a serious fight was the furthest thing from his mind. After all, when the first President Bush had appointed him a decade earlier to a federal district judgeship, the Senate voted unanimously to confirm. "I suppose it sounds naive now," he tells me on my recent visit to Mississippi, "but based on my record, I really did think I was noncontroversial."
Such a view seemed well-founded. Pickering would soon receive the American Bar Association's highest rating of "well qualified." Plus, the GOP controlled the Senate, if only by a single vote.
But the nomination wasn't formally forwarded to the Senate until May 25—the day after Jim Jeffords quit the Republican Party, handing control of the Senate to the Democrats and altering the political equation.
A genial man, with the mellifluous speech and courtly manner that many of us in the North know more from movies than from real life, Pickering hardens slightly when he speaks of some of his senatorial inquisitors. "They just depersonalize you," he says. "They look at you and don't even see a human being." He pauses. "I must tell you, some of these people have basically the same attitude that the Klan used to have—that their ends are so important that any means are justified to accomplish them."
Among the principal heroes in A Price Too High is Pickering's son, Congressman Charles "Chip" Pickering, Jr., who worked tirelessly on his father's behalf, refusing to lose heart at even the bleakest moments. Among the main villains is Senator Charles Schumer, who, after initially pledging to support the nomination, became one of its most aggressive foes, playing the race card with what often seemed like relish. But the book's true bad guys are the activists from the leading left-liberal special-interest groups, who called the shots while prominent Democrats did their bidding with almost comic alacrity. Of these, Ralph Neas of People for the American Way (PFAW) proved the most damaging. "People for the American Way gave the marching orders," says Pickering. "They wrote the script and everyone else followed."
Liberal activists had every right to oppose Pickering based on his judicial philosophy. An outspoken strict constructionist, he's frankly aghast at the eagerness of so many contemporary judges to find rights in the Constitution impossible to discern with the naked eye. In A Price Too High, he mockingly refers to the liberals' "living Constitution" as the "mystery" Constitution, worrying over the long-term consequences of such judicial power grabs.
Perhaps even more alarming was his history of opposition to abortion, expressed, among other places, at the l976 Republican convention. Pickering chaired the subcommittee that recommended a plank opposing Roe v. Wade as an egregious instance of judicial overreach and supported a constitutional amendment to overturn it. As a former president of the Mississippi Baptist Convention, he acknowledges that his pro-life stance is consistent with his faith and with his conviction that the Bible is the literal word of God.
Pickering says that he'd have been pleased to argue these issues and others on the merits. His strong commitment to a nation of laws and not of men, he asserts, dictates that he rely on precedent and not allow his personal beliefs to influence his behavior on the bench. Indeed, Pickering points out that in the past it was judicial activism from the right that was most damaging to core American values, citing the infamous Dred Scott and Plessy v. Ferguson decisions. In an article for the Federalist Society, Pickering noted that Justice Benjamin R. Curtis quit the Court in the wake of the Dred Scott decision—the only person ever to do so as a matter of principle—and quoted from his famous dissent in the case: "When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we no longer have a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean."
As for the matter of his faith—so terrifying to his critics—Pickering says, "Ours is a nation where every citizen is free to believe or not believe. Both my Bible and the Constitution say it's wrong to impose religious beliefs on anyone."
As Byron York observed in National Review, liberal activists faced a dilemma: Pickering, like a number of Bush's other conservative nominees, was "without any obvious professional or personal deficiencies." The solution was a time-tested one: pick through the nominee's voluminous records—to be supplied by the victim himself, in one of the crueler ironies of a broken process—and piece together an attack plan. It hardly mattered that this exhaustive search yielded scant ammunition. From the start, arguably the most damning evidence against Pickering was that he had been born in Mississippi during the Jim Crow era.
To liberal elites, Mississippi remains morally backward, and the very mention of the state's name is almost certain to arouse contempt. Having grown up defining themselves in opposition to the draconian land of Jim Crow, they've never lost their sense of superiority.
Yet the truth is remarkably different. Open-minded visitors to Mississippi will discover that race relations there are better than in the urban north. In every public venue, blacks and whites casually mingle on friendly terms. This is nowhere more true than in Laurel, Pickering's hometown. A community of 18,000, it's still turn-of-the-century picturesque, even after Katrina toppled most of its towering oaks. Walk down Fifth Avenue, past the monument to the Confederate war dead, to City Hall, and Mayor Melvin Mack offers everything you need to know about today's Mississippi. A 58-year-old African-American, he sits in the office once occupied by the man who employed his mother as a domestic for "$1.25 a week, plus all the leftovers and hand-me-downs she could carry," he says. "But the same people who used to call you ‘Boy,' now they call you ‘Mister.' My baby brother, he makes more in a week than my father made in a year."
Or go up to Jackson, and talk to Charles Evers, brother of the martyred civil rights leader Medgar Evers and himself the former head of the state NAACP. "Once I couldn't walk down the street with a white woman," he says, and then points to a photo in the office of the radio station he owns. "See that, now I got a white son-in-law and white grandkids. Just like Medgar and I always said, if you could ever stop the hatred and the racism, this would be the greatest state in the nation. A lot of people just haven't caught on to that yet."
Nevertheless, Dixiephobia, as journalist Deroy Murdoch's dubbed it, is so ingrained among the left-leaning provincials of the political class and media that the decision to go after Pickering on race likely seemed a no-brainer.
Looking at several isolated episodes from Pickering's career unearthed by activist groups and presented out of context, PFAW detected a "troubling pattern" of "racial insensitivity"; Marcia Kuntz of the Alliance for Justice went all the way, declaring Pickering "a throwback to the old, segregated South."
Among the evidence cited to support these claims was a law-review note that Pickering wrote as a first-year law student in l959, suggesting that the language of the Mississippi statute banning interracial marriage be altered if the law "is to serve the purpose that the legislature undoubtedly intended it to serve"; his alleged sympathies as a state legislator for the pro-segregation Mississippi Sovereignty Commission; and, most damning of all, the charge that, in a 1994 case in his district courtroom, he'd shown leniency toward a convicted cross burner.
Initially, Pickering's Bush administration allies deemed these charges so weak that they scarcely took them seriously. In the nearly half-century-old law-school note, Pickering had been making a technical point, rather than commenting on the content of the law; in any case, even some liberals conceded that it was unreasonable to apply contemporary racial sensibilities to the Jim Crow South, especially since at the time overwhelming majorities of both whites and blacks, in the North as well as South, frowned on interracial marriage. On the Sovereignty Commission charge, as a Cox News Service reporter who investigated the matter observed, by the time Pickering voted as a state senator to fund the commission—in 1972 and 1973—"Mississippi had generally dismantled legal segregation, and the agency was trying to retool itself as a general investigative organization."
For shock value alone, the cross-burning charge appeared the most disturbing. But an even passing acquaintance with the specifics of the case proved it entirely baseless. Daniel Swan, the defendant in United States v. Swan, was a 20-year-old with no prior arrests or record of hostility to blacks who claimed to have been drunk when he and two others set a makeshift cross aflame in front of the home of an interracial couple. Evidence established that one of the two others was the ringleader—in fact, had earlier fired a shot into the couple's home—but was only 17, so he was allowed to plead guilty without jail time; as was the third man, 25, on the grounds that he was mentally incompetent. Offered an l8-month sentence by Janet Reno's Justice Department, Swan instead chose to go to trial. Once convicted, he faced a possible seven and a half years. Pickering, who had a history of cutting breaks to young defendants with no priors, both black and white, gave him 27 months and a stern tongue-lashing. He had committed "a despicable act," said the judge. "The type of conduct you exhibited cannot and will not be tolerated." He added: "During the time that you're in prison . . . do some reading on race relations and maintaining good race relations and how that can be done."
The racism charge was dramatically at odds with Pickering's established record. "Blacks around here lived in mortal fear," says Mayor Mack, of the era in which Pickering came of age, the son of a struggling local farmer. "Around here, when the Klan marched in the streets, they didn't wear hoods, because they wanted us to know who they were."
"I remember when the Freedom Riders started coming to Laurel," recalls Pickering, who settled in the town as a young lawyer. "It's almost impossible to describe it, the venom was so great. These thugs would take out their blackjacks and start brutally beating these young African-Americans." The most vicious of all Klan organizations was the White Knights of the KKK, under Imperial Wizard Sam Bowers, described by Time as "the most dangerous man ever to wear a white hood." Bowers, who was behind innumerable acts of terror, including the infamous murders of civil rights workers Andrew Goodman, Michael Schwerner, and James Chaney, lived in Laurel; in fact, as Mayor Mack remembers, "smack in the middle of a black neighborhood, so he could rub it in our faces. They knew they wouldn't be prosecuted—and if they were, they weren't gonna be convicted."
But when he was elected prosecuting attorney for Jones County in l963, Pickering took Bowers on. "Most white people didn't like the Klan, and they certainly didn't approve of the violence," he says. "But it was easier for them to turn away than deal with the problem." So, working with the FBI's local field agent, he moved to shine a spotlight on the appalling extent of Klan violence. "There'd been more than a hundred acts just locally—beatings, fire bombings, shooting into homes—which came as a real shock to a lot of white people. So we had citizens sign a petition taking a stand against the Klan. The idea was to break their power by energizing the silent majority."
When Bowers was at last arrested in 1967, and put on trial for the murder of local black activist Vernon Dahmer, Pickering took the stand against him, an act that hardly went unnoticed locally. "Back then," as one of Pickering's allies in the nomination fight observed, "you weren't just risking your political career; you were risking your life." In spite of overwhelming evidence of Bowers's guilt, the jury was hung and he was released.
Asked today if he ever feared for his personal safety, Pickering says, "There was just one time that really gave me pause. I had prosecuted a Klansman who'd brutally beaten a local businessman, and a little while after that, I learned that the Klan had put out a ‘number two' on me—that was code for a beating. So for a while, I did take special care when I left my office at night. But, you know, when you're young, you really don't spend much time thinking about those things."
Mississippi's public schools integrated in l969, a process that in many districts across the state led white parents to pull out their children in favor of newly created all-white "academies." "That didn't happen in Laurel," says Chip Pickering, who entered first grade that year, "mainly because my father and a handful of other community leaders believed so strongly in public education." In the end, all four of the Pickering kids graduated from the local public high school, with Chip playing quarterback—"second string," points out his friend, Mayor Mack—on the largely black football team.
Charles Pickering made his first appearance before the Senate Judiciary Committee in October 2001, and while questioning by the majority Democrats was pointed, it was, he says, "civil." It was at a second hearing, called at the behest of PFAW and other opposition groups out to scuttle the nomination, that "all pretext of civility was gone." Brushing aside the testimony of witnesses who'd closely observed the nominee for decades, including a number of black political figures and lawyers who'd appeared in his courtroom, the Democrats went for the jugular. "Judge Pickering's record reflects a hostility to civil rights and a vision of the Republican Party that reminds Americans of a painful time in our nation's history," offered Ted Kennedy, in remarks suggesting the general tenor of Democratic rhetoric. "Those who lack a strong commitment to our nation's fundamental ideals and principles do not belong in our federal judiciary."
Asked now to rank his inquisitors by viciousness, Pickering doesn't hesitate. "Senator Durbin demagogued the racial issue the hardest, though Senator Schumer ran him a close second. Senator Kennedy had some of the harshest things to say. Senator Leahy was extremely thin-skinned; he can dish it out, but can't take it. But I'd have to say that John Edwards was the worst."
What Pickering's supporters hadn't counted on was Edwards's blossoming presidential aspirations and his calculation, as Pickering puts it, "that as a southerner, he felt he had to earn his spurs with the feminists and other far-left activist groups." Focusing on the specious cross-burning charge, Edwards "struck like a viper. He was sarcastic and disrespectful, continually cutting me off. It was like a prosecutor questioning a common criminal."
"You are familiar, are you not, Judge, with the Code of Judicial Ethics that applies to you?" demanded Edwards at one point, about a call Pickering made to a former colleague at the Justice Department, a line of questioning designed to suggest that Pickering had gone to unprecedented lengths on behalf of the cross burner. "You are familiar with that, are you not?"
"I am," replied Pickering.
"And are you familiar with Canon 3(a)(4) of that code, which says, ‘except as authorized by law, a judge should neither initiate nor consider ex parte communications on the merits of a pending or impending proceeding'? Did you make a phone call to a high-ranking Justice Department official on your own initiative?"
"We had had . . ."
"Not ‘we,' " Edwards cut him off sharply. "You. Did you make this phone call?"
"I've indicated I called Mr. Hunger and discussed the fact that I was frustrated I could not get a response back from the Justice Department, and I thought there was a tremendous amount of disparity in this sentence."
"Were the government prosecutors on the phone when you made that call?"
"No, they were not."
"So that would be what we lawyers and judges would call an ex parte communication, would it not?"
It went on in this vein for 15 agonizing minutes.
As the attacks against Pickering escalated, Mississipians of both parties rallied behind his candidacy, as did every paper in the state. Even today, when the subject comes up in conversation with locals, words like "lynching" and "crucifixion" frequently spill forth. As Pickering observes, "Mississippi perceived that this was not just an attack on me but an attack on Mississippi. They were unfairly judging us through the lens of the past, not by our present."
Republicans rode the judicial issue hard in the off-year elections of 2002, and it played especially well in the South and Midwest. In Georgia and Missouri, Republican challengers edged out Democratic incumbents, handing control of the Senate back to the GOP. In Mississippi, many considered the backlash against the Democrats to be an important factor in Haley Barbour's 2003 election as the state's second Republican governor since Reconstruction.
Renominated to the Appeals Court following the 2002 elections, Pickering appeared before the Judiciary Committee for a third time, in October 2003. His foes once again brought forth the same charges. But this time, they were met by a furious rebuttal from the panel's newest member, Lindsay Graham of South Carolina, which reportedly left some of them shaken. Assuming the role of surrogate for all those affronted Mississippians, Graham asked: "Do you know what it must have been like in 1967 to get on the stand and testify against the Ku Klux Klan in Mississippi? Do you have any idea what courage that took? Shame on you."
By this time, reporters from the Philadelphia Inquirer, the Atlanta Journal-Constitution, and the Knight-Ridder chain, among others, had journeyed to Mississippi and filed balanced stories about Pickering's civil rights record and his strong support among local blacks. In the New York Times, Neil Lewis and especially David Firestone convincingly debunked the claims that the activist groups and their Senate allies were making. Yet, as Pickering observes, "The New York Times's columnists and editorial writers either didn't read what their own reporters had written, or else they didn't care." The paper's multiple editorials were unrelenting; repeatedly, they brought up the cross-burning case and—this was after Trent Lott's self-immolating public praise for Strom Thurmond's 1948 segregationist presidential campaign—took to describing Pickering as a "Lott protégé." Following that lead, within a four-day period Frank Rich wrote of Pickering's "strenuous effort to reduce the sentence of a convicted cross-burning hoodlum" and (fellow Imus regular) Maureen Dowd of his "soft spot for cross-burners."
By contrast, a much discussed Washington Post editorial, while not endorsing Pickering's nomination, declared that "opposing a nominee should not mean destroying him" and noted that "the attack on Judge Pickering has become an ugly affair." But by far the most meaningful media defense of Pickering came from 60 Minutes in March 2004. Having been first blocked by the Judiciary Committee and, after overcoming that obstacle, denied a Senate vote by a Democratic filibuster, Pickering by now had taken his seat on the Fifth Circuit bench, albeit by a temporary recess appointment. He was initially torn about whether to cooperate with the show. "You know," he understates, "when you're southern and conservative and the national news media comes down, you cringe a little bit—and Mike Wallace did have a reputation." But Wallace and his producer relished the chance to tell what, in their circles, was a man-bites-dog story: a southern conservative unjustly accused of racism.
The clear star of the piece, aside from Pickering himself, was Charles Evers, one of several black defenders of the judge to make an appearance. After he'd finished his own interview before the camera, Evers asked if he could sit in on the next one, with Clarence McGee of the NAACP, one of the groups that had fought Pickering from the start. The result made for a riveting confrontation—and one that left the anti-Pickering forces revealed for what they were before a nationwide audience.
"You know that Charles Pickering was the man that helped us break the Ku Klux Klan?" demanded Evers. "Did you know that?" In response, McGee stammered that, no, he hadn't known that.
EVERS: Well, I know that. Do you know about the young black man that was accused of robbing the young white woman? Do you know about that?
EVERS: So Charles Pickering took the case, came to trial, and won the case, and the young man became free.
McGEE: I don't know about that.
EVERS: All right. But did you also know that Charles Pickering is the man who helped integrate his—his churches? Do you know about that?
"Well," concluded Evers contemptuously, "you don't know a thing about Charles Pickering."
"That young punk didn't know nothin' about nothing," recalls Evers of the encounter now. "That's all you gotta say in this country, a white man's a racist, this white man hates black folks. Well, I could not let them destroy a white man just because he's white, when I know different."
In the wake of that broadcast, as well as other coverage favorable to Pickering, the Senate atmosphere changed markedly. "I think some of them were genuinely embarrassed," says Chip Pickering. "Edwards had a difficult time looking me in the eye. As did Schumer. As did Durbin. Several times I'd see them and they would simply look away."
Briefly, there was talk that the Democrats might allow Pickering to come to a vote before the full Senate, allowing him to continue serving on the Fifth Circuit bench; even some members of the Congressional Black Caucus were wavering in their opposition. But by then, the opposition groups' investment in his defeat was too great. "They were so committed, you couldn't undo what they'd started," as Chip Pickering puts it. "It wasn't so much about my father any more; it was about their winning."
The supreme irony, pun intended, is that what the Left perceived as victories on the judicial front led directly to its most calamitous defeats. A month before Pickering was forcibly retired from the bench, George W. Bush narrowly won reelection—at least in part because of legalization of gay marriage by the activist Massachusetts Supreme Court. Five months after that, the Senate's bipartisan Gang of 14, formed in response to years of gutter fighting over judicial appointments, ended the filibusters and paved the way for the confirmations of Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito.
Pickering makes no secret of the pleasure he takes from that outcome—"I think it's fair to say that, were it not for the courts, John Kerry would be in the White House now"—and believes strongly that the Republicans did themselves no favors by failing to press the issue in 2006. He believes that a battle on the makeup of the courts could again pay huge dividends for the GOP in 2008. With the Democrats now in control of the confirmation process, the most aggressive members of their base are eager for a scrap, especially after the recent Supreme Court decision curtailing partial-birth abortion. The question is whether the Republicans will press the fight, when in recent years they have shown themselves so cowed by elite opinion on issues ranging from the war on terror to immigration and race.
As Pickering wrote in his Federalist Society article, the heedless judicial activism of the Left has transferred "the fight over hot button social issues from the election of state legislators, congressman and senators to the confirmation of federal judges." He echoes the same themes in A Price Too High, even floating the idea of a constitutional amendment aimed at curtailing the power of activist judges to override the popular will by fiat. He further proposes a statute setting out procedures for the confirmation of federal judges. "Such a statute," he writes, "should include specific times within which a nominee would receive a respectful hearing before the Senate Judiciary Committee, a vote in committee, and a debate and vote on the Senate floor. . . . Codifying the procedures for confirmation of judges will not cure all the ills caused by the politicalization of the judicial selection process. It will at least bring stability, predictability, and order to a chaotic and almost intolerable process."
Pickering strikes a philosophical note when speaking about his own nomination battles. "Of course," he concedes, "I would much rather have been confirmed, and I'm far enough away from the bench that I will confess that I miss it. But I manage to keep fairly busy." In addition to his law work and his writing, he serves on the boards of a bank and a small Baptist college and does a fair amount of public speaking. "And, then, of course," he adds, "I also cochair the committee to establish a national civil rights museum here in Mississippi—that's probably most important." Pickering pauses, gazing out the window of his law office in a Jackson office park.
"Folks ask if it bothered me they were going around saying all these things about me that weren't true," he says. "I tell them it'd bother me a lot more if they were true."