"60 Minutes" seemed intent on making the point that African Americans within Pickering's hometown know best about Pickering's qualifications for the appellate court, and that their support is revealing: "Pickering enjoys strong support from the many blacks who know him." This misses the point completely about federal judicial nominations. The Senate's advise and consent role is not reduced to a personality contest limited to a nominee's popular support in his hometown. Nominees—even controversial ones—can receive overwhelming support from local friends and associates.
In fact, it is unusual for an individual from a small community to publicly oppose a local sitting federal judge, especially if that individual or a family member may end up appearing before the judge as a lawyer or a party. He or she would naturally have a vested interest in staying in the nominee's good graces. This is even truer in Pickering's situation, since Pickering contacted lawyers practicing before him to help with his nomination. He was severely criticized by several Democratic senators for soliciting letters of support from lawyers practicing before him and requesting the letters be sent to him so he could forward them to Washington. Several of the letter-writers had cases pending before Pickering at the time.
"60 Minutes" misled viewers about the level of African-American opposition in Mississippi. "60 Minutes" claimed "several past presidents of the NAACP in Mississippi support Pickering." That is simply not true. "60 Minutes" also failed to mention that every other statewide African-American organization in Mississippi opposes the Pickering nomination based on his record, including the Mississippi Chapter of the Southern Christian Leadership Conference, the Magnolia Bar Association, the Mississippi Legislative Black Caucus, the Mississippi Black Caucus of Local Elected Officials, and the Minority Caucus of the Mississippi Supervisors' Association. "60 Minutes" also failed to mention that the sole African American Congressman in Mississippi, Rep. Bennie Thompson, strongly opposes the Pickering nomination.
We were also appalled that several critical aspects of Judge Pickering's civil rights record were not addressed.
As a Mississippi state senator during the 1970s, Charles Pickering was part of the massive resistance to the Voting Rights Act and its implementation. He repeatedly opposed measures that would expand electoral opportunities for African Americans. Pickering voted for multi-member state legislative districts, which diluted African- American voting strength in district-wide white majorities. These districts became the major obstacle to allowing African Americans to elect representatives of their choice.
As a state senator, Pickering also favored open primary legislation, which Mississippi began to try to enact in 1966 and which eliminated any advantage for African-American candidates running as independents or winning with less than a majority because of a split white vote. Because of the impediments to voting enacted by the Legislature during this time (and earlier), African-American candidates continued to fare poorly in state legislative elections during the 1970s. The Mississippi Senate remained all white until Pickering left at the end of the 1979 term.
Once on the federal bench, Pickering continued his hostility toward voting rights. In an adverse ruling regarding the 1991 redistricting of state legislative districts, he joined an opinion saying: "Plaintiffs well knew, or certainly should have realized that they would not fare well if the decision on redistricting was left to this court and indeed, plaintiffs prevailed in the end only because the Mississippi legislature succumbed to their demands."
In a case brought by a past State NAACP president, Judge Pickering said that separating white and black voters into districts would cause more polarization and ultimately reduce the effective influence of black voters. This contradicts the well-established principle that majority-minority districts are critical in helping minorities elect candidates of their choice.
Importantly, Pickering has strongly criticized the one person-one vote doctrine as "obtrusive." Citing court-ordered redistricting, the expense to taxpayers, and the disruption of customs such as voting in the same location, Pickering wondered "if we are not giving the people more government than they want and more than is required in defining one-man, one-vote too precisely."
"60 Minutes" did not disclose numerous additional facts about Judge Pickering's civil rights record that reveal a sustained hostility towards progress for African Americans. While Pickering was permitted to selectively highlight portions of his record, no one presented the following facts on which many U.S. senators relied in opposing his nomination:
• Charles Pickering's first foray into the law was a 1959 law review article recommending the strengthening of anti-miscegenation laws in Mississippi.
• Following graduation from law school, he partnered with ardent segregationist Lt. Gov. Carroll Gartin.
• Pickering left the Democratic Party in the summer of 1964 (one week before Strom Thurmond), after the attempted seating of the Mississippi Freedom Democratic Party at the Democratic convention.
• As a county attorney in the late 1960s, Pickering advocated "continuing our Southern way of life," a well-known phrase meaning segregation.
• As a Mississippi state senator during the 1970s, he voted to fully fund the Mississippi Sovereignty Commission, an agency devoted to the investigation and personal destruction of civil rights activists throughout the state.
Judge Pickering's record on the federal bench was not discussed by the news show, apart from a single cross-burning case. [In 1994, Pickering went to some length—including calls to the State Department and potential ethical breaches—to reduce the sentence of a man convicted of arson and a federal hate crime reportedly because he felt the recommended sentence of over seven years was too harsh.]
In particular, his record in employment discrimination cases—the most common form of discrimination case coming before him—was not addressed. By his own count, Judge Pickering has granted summary judgment (a judgment without a trial) in 51 cases, denying summary judgment in only a handful of cases. Only three employment discrimination cases brought before him have been tried to a jury. In his summary judgment rulings, he often goes beyond ruling against the plaintiff to lecture the employee about using federal courts to seek redress for discrimination.
Later, at his confirmation hearing, Pickering defended his record in employment discrimination cases by suggesting that only the weakest employment cases ever get to federal court. His testimony that the most meritorious claims are resolved by the EEOC, the Equal Employment Opportunity Commission, had no factual basis whatsoever. The truth is that very few EEOC cases are ever mediated. And fewer cases are actually prosecuted by the EEOC itself. Many charges are not fully investigated before authorization is granted to the employee to file a federal lawsuit. Pickering would not know whether or how the EEOC considered their merits.
When "60 Minutes" decided to focus on Pickering's racial record, we had an expectation that they would cover this record fairly. Unfortunately, that was not the case.
Derrick Johnson is president of the Mississippi state NAACP. After a March "60 Minutes" segment on the appointment of Judge Charles W. Pickering, he and some of his colleagues wrote a letter to CBS, portions of which are republished above.
Read the "60 Minutes" transcript
March 25, 2004, blog about Pickering's appearance on "60 Minutes
I have a concern about the focus put on Pickering's 1959 law review article. The concern is this: students of today might be scared away from publishing scholarship on controversial topics. The concern is caused by more than the focus on Pickering's article; it happens to other politicians. Pickering will simply serve to elucidate my concern.
In 1959, Pickering wrote about what was not, at that time and in Mississippi, an extremely controversial topic; perhaps it wasn't even controversial, but I don't know my history that well. Unfortunately, it presumably wasn't a very controversial issue in the 22 other states who also had anti-miscegenation laws (just finished skimming his 59 article and I think that number is right). His article was very short, not one we would customarily think of as a "law review article." It was more of a snippet; a "report" on the current law, where the current law had some holes in it, and how those holes could be filled in. It was also not what you would normally entitle as a full blown recommendation of something. He basically had five points, with only the first being given much detail (whole article approx. 4 pgs): 1- MS has anit-miscegenation laws with a hole in it 2 - courts are having a hard time with that hole 3 - it is likely that the US Supreme Court will strike down such a law since it is based on race 4 - but the US Supreme Court will not strike down such law for some time because variations the law are present in some 23 states and 5 - until that time this is how the state legislature can fill the hole to guide state courts.
Today this is one of the main points that critics are hanging over Pickering's head.
I'm afraid this type of focus is scaring away graduate and law students from writing about controversial topics.
I hear it here at law school among students (WooHoo - 30 days way from graduating and moving back home to Jackson, MS): "don't touch that topic, no matter what side you're own. The only way you want to touch it is if you can guess what will be considered "right" 20,30, 40 years from now. Otherwise they will write you off as some nutcrack." As a result, students write about boring topics like change of venue, instead of really volatile, controversial issues - like gay marraige.
The gay marraige issue draws a parallel to Pickering's situation. For instance, "Don't write on the topic, no matter what side you are own. That guy Pickering probably didn't think a thing in 1959. See what they are saying in 2004. No one is even (at least on the mainstream media that I have seen) asked him to explain himself for that article, and they're killing him with it. And he didn't even make a full blown recommendation for something. Just explained a controversial area of the law and how to plug a hole."
I'm concerned that bright minds from producing scholarship by stuff like this.
Do others have this concern?