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Nomination deserves legitimate review

By PHILIP GAILEY, Times Editor of Editorials
© St. Petersburg Times
published February 24, 2002

If you wonder why fewer and fewer people are willing to subject themselves to the Senate confirmation process, consider the smear campaign being waged against Charles Pickering Sr. In 1990, the Mississippi lawyer was nominated by President George Bush to be a federal district court judge. His nomination won the unanimous approval of the Senate Judiciary Committee and the full Senate. Now Pickering has been nominated for a seat on the 5th U.S. Circuit Court of Appeals by President George W. Bush, and the opposition is vicious. There are legitimate reasons for why the Senate should deny Pickering this promotion. However, those reasons have little or nothing to do with the ugly campaign being conducted by liberal interest groups bent on destroying his reputation.

Pickering is a conservative Republican who has served on the federal district court without particular distinction. He is neither the progressive his defenders say he is nor the Neanderthal his opponents make him out to be. He has a bad habit of injecting his personal views into legal opinions on controversial issues, and some of his opinions suggest that he is not entirely comfortable with key principles of civil rights law, although he generally respects the precedents established by higher courts. His primary qualification appears to be his close friendship with Senate Republican Leader Trent Lott. The president could have come up with a better choice, and the Senate has every right to insist that he do so.

That People for the American Way and other liberal groups have played the race card against Pickering -- while denying that they are doing any such thing -- only further degrades a judicial confirmation process that has become a nasty arena for advancing political and ideological agendas. The way the process works these days is, interest groups comb through a nominee's work and his personal life looking for anything that can be spinned against him. The press reports on its findings, too, often without bothering to check the facts, and by the time the Senate Judiciary Committee holds a confirmation hearing, the wounded nominee limps into the room on the defensive as senators move in for the kill. Both parties play this game, by the way.

The Washington Post, no advocate for Pickering, expressed its disgust with the ugliness of the campaign against him in a recent editorial: "His critics have focused for the most part not on his qualifications, temperament, approach to judging or on the quality of his judicial work. The judge's opponents, rather, have tried to paint him as a barely reconstructed segregationist. To do so, they have plucked a number of unconnected incidents from a long career: a law review article from 1959 on the state's antimiscegenation statute, written when Judge Pickering was a law student; his incidental contacts as a state legislator in the 1970s with the Mississippi state Sovereignty Commission; and his handling of a cross-burning case in his court a few years back, to cite a few examples. None of these incidents, when examined closely, amounts to much, but opponents string them together, gloss over their complexities and self-righteously present a caricature of an unworthy candidate."

Jonathan Groner of the Legal Times did an analysis of Pickering's rulings and talked to African-American leaders in his community and state. He found that Pickering and his record are far more complicated than his liberal critics suggest.

While the national NAACP opposes Pickering's nomination, many prominent blacks in Mississippi support it. They say they do not recognize the man Washington interest groups are accusing of "insensitivity" (no one uses the word "racist") on civil rights. The Charles Pickering they know is the young lawyer who, in the early 1960s, helped send a Ku Klux Klan leader to prison even though it cost him re-election as a local prosecutor. He is the federal judge who has worked with local civic leaders to keep young African-Americans out of the criminal justice system. Long before he became a federal judge, he was involved in racial reconciliation efforts, and from the bench he once rebuked an attorney who brought up a plaintiff's homosexuality during a fraud trial. "Homosexuals are as much entitled to be protected from fraud as are any other human beings," the judge told the attorney.

One of the African-Americans in Mississippi who has come to Pickering's defense is James Charles Evers, the brother of the slain civil rights leader Medgar Evers. Writing in the Wall Street Journal, Evers said of Pickering's civil rights record: "He has taken tough stands at tough times in the past, and the treatment he and his record are receiving at the hands of certain interest groups is shameful."

His opponents say Pickering is hostile to employment discrimination claims. In one case they cite, two blacks who owned a grocery store sued a supplier under civil rights laws for cutting off their credit. Pickering ruled in favor of the supplier, finding no evidence of discrimination. His critics say they have less problem with his decision in this case than with the "harsh" language Pickering used in his opinion. He wrote: "When an adverse action is taken affecting one covered by (civil rights) laws, there is a tendency on the part of the person affected to spontaneously react that discrimination caused the action. All of us have difficulty accepting the fact that we sometimes create our own problems."

The Legal Times said that what the judge's liberal critics fail to mention was that "the supplier canceled the credit terms after both store owners were arrested and indicted for allegedly threatening to murder a federal official. (They were later acquitted.)"

The Pickering nomination is the first major showdown between the president and Senate Democrats over the shape of the federal judiciary. If the Senate rejects the nomination, it should do so for legitimate reasons -- and there are some -- and not on the basis of a campaign of distortion and innuendo being waged by liberal interest groups. Pickering is not entitled to a seat on the appeals court, but he is entitled to a fair hearing.

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