BY CLIFFORD GINN
President Bush has nominated Charles W. Pickering to the Fifth Circuit, despite serious concerns over evidence of racial prejudice. The administration’s racial insensitivity here should surprise no one. President Bush’s campaign trail included a visit to Bob Jones University, famous for its ban on interracial dating. Vice-President Cheney opposed anti-apartheid sanctions on South Africa (curiously, he does not apply his “sanctions don’t work” logic to Cuba or Iraq). Attorney General Ashcroft has made racial profiling a national policy, and Senate Minority Leader Trent Lott, Pickering’s strongest advocate, has a history of involvement with the white supremacist Council of Conservative Citizens
Pickering has drawn fire for his actions before and after becoming a federal district judge in 1990. In 1959, Pickering wrote a law review article advising how Mississippi could strengthen its criminal statute banning interracial marriage to survive constitutional scrutiny and become fully enforceable. The state legislature followed his advice, and it worked, at least until Loving v. Virginia made such laws unconstitutional. Pickering has never repudiated the piece, referring to it as an “academic exercise.”
As a state senator, Pickering consistently voted for measures that diluted voting power for non-whites. He repeatedly voted to fund the Mississippi Sovereignty Commission, a hateful anti-black organization that sought to undermine voting rights, infiltrate union and civil rights advocacy organizations, spy on labor and civil rights leaders and take any steps, legal or otherwise, to maintain Mississippi’s power structure. While Pickering denies any contact with the Commission, a Commission memorandum indicates that then-Senator Pickering was “very interested” in a Commission investigation of union activities in his district, had “requested to be advised of developments” in the infiltration of the union and wanted background information on the union leader. Pickering later voted against making the Commission’s documents public.
In his political career, Pickering partnered with Lt. Governor Carroll Gartin, a fierce segregationist. He bolted the Democratic Party in 1964, the year when the party began considering opening some of its offices to blacks.
To offset all of this, the National Review holds up Pickering’s testimony against a Klan leader in a 1960s murder trial.
The New York Times, insightful as always, sees the nomination fight as raising the “vexing issue of whether there is a moral or political statute of limitations on a Southerner’s racial views.” First of all, elevation to the Fifth Circuit bench is not an entitlement, but a privilege and a solemn responsibility; denying someone this privilege hardly constitutes “punishment.” Second, Southerners are as capable of moral reasoning as Northerners, and there is certainly plenty of racism above the Mason-Dixon Line. Geography does not diminish moral responsibility. Third, the question is not what Pickering believed then, but what he believes and represents now. Pickering has a history of associating himself with racist policies and individuals, and he carries a heavy burden in proving that he has changed. His performance on the bench and unwillingness to apologize for his contribution to imprisonment of interracial couples are entirely consistent with his past behavior. Even if he has changed, his elevation over people who have no racist history is an affront to everyone who has suffered under government-sanctioned racism.
We cannot risk the possibility that a federal judge harbors even unconscious racial prejudice. When courts approve a racist principle, it “then lies about like a loaded weapon ready for the hand of any authority” (Korematsu (Jackson, J., dissenting)). Justice Rehnquist’s importation of 18th and 19th century racism into 20th century Indian law illustrates the point vividly. Justice Rehnquist (along with the other members of his majority) cloaks his assumptions about modern and historical tribal institutions in the words of revisionist historians Jacksonian Indian officials, and notorious “hanging judges,” and uses those assumptions to justify limits on Indian land and sovereignty rights. Racist legal principles not only produce social and economic inequality — they force the oppressed to seek redress from the political branches, the branches least likely to recognize their rights. During Rehnquist’s confirmation hearings, the Senate decided not to “punish” him for two memos he had written for Justice Jackson, one explaining why Plessy v. Ferguson was rightly decided, and one saying: “It is about time the Court faced the fact that the white people [in] the South don’t like colored people.”
Obviously, people can change. Hopefully, Judge Pickering has learned from his mistakes, and we might give him every opportunity to prove himself. Indeed, many black leaders in his home district support his nomination. However, the standard of proof for a lifetime tenure as a circuit judge has to be something close to absolute certainty.