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January 10, 2003

Pickering : It's Not Just About Race

As Joe Conason emphasizes, despite some latter-day excuses (hey, he didn't perjure himself in testimony against a Klan member), Charles Pickering, Bush's nominee for an Appeals Court seat, was a defender of segregation:

[in the 1960s] a "moderate" was someone who defended segregation but didn't practice or advocate brutal violence to suppress the black freedom struggle.

One thing in Pickering's long career is quite clear: He left the Democratic Party to join the Republicans in 1964 in protest against the Democrats' support for civil rights.

But progressives should not fall into the trap of focusing only on his past or we make the mistake of encouraging just whitewashed substitutes, a la Bill Frist stepping in for Trent Lott.

As Senator Patrick Leahy said in hearings last Spring, the problem with Pickering is in the present, in his work on the lower court bench where he described Pickering as a judicial activist who "repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights."

One notable thing about Pickering is his attempt to act in secrecy, refusing to publish most of his decision from the federal bench. In his 11 years on the bench, Judge Pickering has published fewer than 100 of the approximately 1,100 opinions that he has estimated he has written in that time. People for the American Way has extensively outlined Pickering's views in the published decisions that are available (with obvious fears of far worse in his hidden ones).

Here's a sampling:

Pickering has criticized the "one person, one vote" principle where the Supreme Court has ordered that each legislative district must have roughly equal populations, calling the decision "obtrusive" and refused to order new special elections even when the constitution had been violated in specific races.

He's attacked both race and age discrimination laws as interfering with employer decision-making rights. In one, he worte disparagingly, "this case has all the hallmarks of a case that is filed simply because an adverse employment decision was made in regard to a protected minority" and that the courts "are not super personnel managers charged with second guessing every employment decision made regarding minorities." Pickering similarly disparaged the plaintiff in an age discrimination case, proclaiming that the Age Discrimination in Employment Act "is not a vehicle by which any replaced worker over the age of forty may have a federal court review the merits of his job performance or the demerits of his termination."

Pickering at one point upheld a prison rule prohibiting any magazines being delivered by mail, including religious materials (a decision overturned as clearly violating the First Amendment).

Pickering dismissed with prejudice (meaning barring any right to refile) a toxic torts case because of failure by plaintiff's to file proper paperwork-- an extreme sanction that the Fifth Circuit overturned as "improvident" and excessive.

In sentencing criminals, he has repeatedly instructed them to seek reform in the religious ministries available in prison.

Pickering as a legislator voted repeatedly for a total ban on abortion, including in cases of rape.

The list goes on and worth checking out, but the bottom-line is that Pickering, like too many other Bush nominees, is extreme in ideology and should be rejected based on his PRESENT judicial and political beliefs, not just on his racist past.

Posted by Nathan at January 10, 2003 09:11 AM

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