Posted on April 30, 2004

by

Daniel Clark

As they have done to many Bush administration judicial nominees, the Democrats have accused Charles Pickering of having a "poor record on civil rights." Ostensibly because of this, they blocked his nomination from coming to the Senate floor. In response, President Bush has given Pickering a recess appointment, which allows him to sit on the appellate bench until a new Congress is sworn in next January, at which point the usual accusations of racism will start all over again.

A March 28^th 60 Minutes piece, reported by Mike Wallace, summarized the judge's record on race, and it so sharply contrasts with the caricature of him drawn by Democrats that it's a wonder that they've carried the charade this far. Pickering told Wallace about how he "worked with the FBI to stop Klan violence" when he was serving as county attorney. One of the ways he did this was to appear as a government witness in the 1966 murder trial of Sam Bowers, the Imperial Wizard of the Ku Klux Klan of Mississippi. After his testimony, he said, the FBI informed him of threats made against him, and one agent who had infiltrated the KKK kept his house under surveillance, in case any of "the crazies" came by after Klan meetings.

If 60 Minutes had devoted as much time to the Pickering story as it had to its interview with Richard Clarke a week earlier, Wallace might have spoken to former Jones County, MS district attorney Chet Dillard. Quoted in a February 7, 2002 Biloxi Sun Herald article, Dillard described an occasion on which Pickering accompanied him to a meeting with a Klan informant. "I was deathly afraid, so Charles borrowed a pistol from the FBI and waited across the street in the upstairs part of a funeral home. ... He was going to start shooting if I flashed my headlights three times. ...He was there with me ready to shoot a bunch of Kluckers."

One might think that this information would end any questions about the judge's commitment to equal justice. But then, why let a minor detail like taking up arms against the KKK stand in the way of a good borking?

The Democrats successfully blocked Judge Pickering in the Judiciary Committee when they still controlled the Senate in March of 2002. A year later, though, a new Republican majority was sworn in, and President Bush resubmitted him for consideration. In October of that year, the committee cast a party-line 10-9 vote to send the nomination to the full Senate.

Although the Democrats came up short in this second committee vote, the additional round of hearings did give them another opportunity to publicly claim that Pickering wanted to "roll back civil rights," as Sen. Ted Kennedy (D, Mass.) put it. Their drumbeat of criticism was augmented by similar charges from the NAACP and People for the American Way, as well as by news reports that repeated the accusations, without examining their veracity.

The public indictment against Pickering -- against which he has had few chances to defend himself prior to the Wallace interview -- hinges on a 1994 case in which he reduced the sentence of a young man convicted of a Klan-style cross-burning. The defendant, 20 year-old Daniel Swan, had taken part in the burning of a cross on the lawn of a biracial couple, and had been sentenced to seven and a half years in prison.

His two partners in this crime had both struck plea bargains that exempted them from serving any jail time. In contrast to this, Pickering called the Swan verdict "a bad case of disproportionate sentencing." One of those other young men had trespassed on that same couple's property before, and even fired a weapon into their house. Because he was still a juvenile, however, the prosecutors were willing to strike a deal with him, in order to put away Swan, who had no prior criminal record.

Pickering coaxed the prosecution to drop the federal "hate crime" conviction, which carried a five-year minimum sentence. As a result, Swan was sent to prison for 27 months, while his cohorts, remember, served no time at all. For this, the Democrats say Pickering is unfit to be elevated to the Fifth Circuit Court of Appeals.

Sen. Charles Schumer (D, N.Y.) belittled the reprimand Pickering gave Swan upon sentencing him by telling Wallace, "We didn't mandate that a judge call someone who does this names. We mandated five years in jail." So the judge is deemed unworthy, we are to believe, because he does not adhere to federal sentencing guidelines.

Then why have Senate Democrats resisted efforts to deter judges from issuing more lenient sentences than federal guidelines allow? Rep. Tom Feeney (R, Fla.) attached an amendment to last year's "Amber Alert" bill that limited the discretion judges can use in reducing sentences. Democrat Senators Patrick Leahy (Vt.), Russ Feingold (Wisc.) and Ted Kennedy -- all members of the Judiciary Committee -- immediately introduced a bill that would have repealed that amendment. Despite this, Schumer claims that his party's opposition to Judge Pickering is due in part to his being soft on sentencing.

Democrat legislators aren't the only ones critical of the Feeney Amendment. Supreme Court Justices Anthony Kennedy and Stephen Breyer have publicly criticized the measure, as has Chief Justice William Rehnquist. If Schumer thinks that Pickering's views on sentencing guidelines are a disqualifying factor, then he ought to be willing to say the same about no fewer than a third of the Justices on the Supreme Court.

Ditto that for Schumer's hyperbolic charge that "Judge Pickering took it on himself, the one time he had a crusade, to help a man who burnt a cross." If the reduction of Swan's sentence irks the Democrats, one would suppose they'd be incensed by any judge who vacated the conviction of a cross-burner altogether. This is just what seven of the nine Supreme Court justices did last April, when they ruled in Virginia v. Black that a state law against cross-burning violated the "freedom of expression" that has been embellished from the First Amendment.

The only two justices who dissented were Clarence Thomas and Antonin Scalia, the same ones President Bush has said are the kinds of judges he wants to appoint. If the Democrats truly oppose Charles Pickering on the grounds that he's "soft on cross-burners," then they ought to be demanding that Bush appoint more Thomases and Scalias, while scrutinizing nominees for the liberal tendencies that led the other seven to strike down the Virginia cross-burning ban.

At least that's what they'd do if their loudly proclaimed concerns for civil rights were genuine, which they're not. The Democrats' overriding concern with Pickering, as with all judicial appointees, is abortion. The difficulty they face is that the pro-abortion position isn't nearly as popular as they'd like it to be. It is far more popular to be opposed to racism, they've observed, so they've tried to fuse the two issues together, in the motley amalgam they call "womensandcivilrights."

This is the strategy that Hillary Clinton described this January when she spoke to NARAL, the pro-abortion group that has removed the word "abortion" from its title because it's bad for business. Sen. Clinton advised her fellow abortion advocates to accuse their opponents of wanting to "turn back the clock" on womensandcivilrights. She instructed them to link the pro-abortion movement with desegregation as frequently as possible, in order to suggest to people that a ban on abortion, by "turning back the clock," must coincide with a return to the Jim Crow era.

NAACP chairman Julian Bond took this one step farther at last week's grotesque "Abort President Bush" rally in Washington. There he claimed that abortion had always been an integral part of black Americans' struggle for civil rights. As evidence, he cited NAACP founder W.E.B. DuBois' activism in the eugenics movement, where he was allied with Planned Parenthood founder Margaret Sanger. He even went so far as to celebrate the fact that "black women today exercise that precious right [to abortion] at a rate far exceeding their percentage in the population." So much for "safe, legal and rare."

Bond also condoned the violation of any abortion restrictions that are passed in the future, by portraying such lawlessness as being consistent with the passive resistance movement. "In the 1960s," he said, "one of the few physicians providing safe, illegal abortions in Chicago was Dr. T.R.M. Howard, a black man who had been run out of Mississippi because of his civil rights activism." In addition, he explained that, "Early in the Twentieth Century ... black newspapers promoted family planning, and championed black doctors arrested for performing illegal abortions."

When Charles Pickering was a delegate to the 1976 Republican National Convention, he chaired the subcommittee that first added the anti-abortion plank to the party platform. If Bond, Clinton and others are going to equate abortion with civil rights, then this is all the information they need to declare him a racist. In order to defeat his nomination, however, they'll need to convince more than just those within their own activist circles. Therefore, their accusations against Pickering have got to be supported by evidence that a sensible person would consider to be relevant.

Considering the Left's inveterate hostility toward Southerners, they probably thought this would be easy. They might not have even bothered looking into his background before pronouncing themselves "concerned" over his "poor record on womensandcivilrights." They certainly didn't anticipate that the brother of slain civil rights activist Medgar Evers would rally to the judge's defense, which he did vigorously during the 60 Minutes segment.

But then, what kind of foresight would you expect from "family planning" advocates who aren't even aware that children exist before birth?

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