Before the hearing, People For the American Way and other public interest organizations opposing Pickering's confirmation had documented that his public record as a state senator and federal judge demonstrates insensitivity and hostility to basic civil rights principles and laws, including voting rights and access to the courts. At his hearing, Pickering failed to resolve the issues that have been raised by PFAW and others. See People For the American Way's report on Charles Pickering's record.
At his hearing on Feb. 7, Pickering raised even more concerns about his views as a judge on civil rights cases. Senator Edward Kennedy and others questioned Pickering closely about disparaging remarks he has injected into cases about anti-discrimination laws and the people who file employment discrimination cases. As part of his response, Pickering stated his belief that the EEOC through its own mediation efforts resolves most of the "good" job bias cases and that cases that come to court generally have already been investigated by the EEOC and determined to have no basis.
This was an astonishing remark by a federal judge. Essentially, he admitted that when a case of employment discrimination brought under Title VII comes before him, he is predisposed to believe that it does not have merit because he thinks that, if it did, the EEOC would have taken care of it.
Not only is this improper for a judge, but the premise on which Judge Pickering's preconception rests is plainly inaccurate. The EEOC is overburdened, with a backlog of nearly 35,000 cases. In addition, almost two-thirds of employers decline to participate in EEOC mediation of discrimination complaints, leaving employees with little option but to go to court. And the EEOC is so lacking in resources that it typically litigates only 3.5 percent of the charges in which it finds reason to believe discrimination has occurred. Because of these delays and limitations, victims of discrimination often obtain "right to sue" letters from the EEOC after months of EEOC inaction, enabling them to pursue their claims in court rather than have their claims languish in administrative limbo. Indeed, federal law specifically allows victims of discrimination to do this. This misguided predisposition against discrimination cases reflected in Judge Pickering's opinions and testimony strongly supports the conclusion that the Senate Judiciary Committee should reject his confirmation.
People For the American Way and others have raised concerns about Pickering's record on voting rights, both as a federal judge and earlier as a state senator. For example, both as a Mississippi state senator, and then as a federal judge, Pickering has sought to criticize or limit important remedies provided by the Voting Rights Act and the Constitution.
When he was a state Senator, Pickering supported voting-related measures that helped perpetuate discrimination against African Americans. When questioned by Sen. Diane Feinstein about his support for an open primary bill that an African American state legislator had stated would diminish the influence of black voters, for example, Pickering testified that he did not view the open primary bill as having a negative effect on African Americans because, he said, they didn't vote in Mississippi in any numbers until 1971. In fact, there were significant increases in African American voting in Mississippi after the 1965 Voting Rights Act. In any event, Pickering's sponsorship of the open primary bill occurred later, in 1976 and 1979, and both times the Justice Department stopped it from taking effect precisely because of concerns about its discriminatory impact on African American voters.
Pickering (and others) publicly resigned from the Democratic Party shortly after the 1964 Democratic convention, at which Fannie Lou Hamer and the Mississippi Freedom Democratic Party had challenged the credentials of the state party's all-white delegation. Senator Russ Feingold asked if Pickering had been aware of the blatantly discriminatory tactics that were being used in Mississippi to stop African Americans from participating in Democratic primaries and caucuses. Pickering would not acknowledge this systematic exclusion, commenting instead that he was aware that blacks "were not voting," and that some counties "were more progressive than other counties" in that respect. Given the violence and systemic roadblocks arrayed against black voters in Mississippi, Pickering's tepid response is extremely troubling.
More recently, as a federal judge in 1993, he has criticized the fundamental "one-person, one-vote" principle recognized by the Supreme Court under the 14th Amendment, calling it "obtrusive." Also, he has suggested that a deviation from equality in drawing legislative district lines, which the Supreme Court has held presumptively unconstitutional, were "relatively minor" and "de minimis." Pickering told Senator Kennedy that he did not term a 25% deviation "de minimis" and that he would follow the law. This claim is directly contradicted by the words in one of Pickering's rulings, in which he also suggested that he might very well have ruled that such a deviation would not violate the Constitution had that argument been raised. See PFAW report at 5. Senator Arlen Specter, asking about Pickering's comments in voting rights cases, observed that they suggested "a curious ambivalence" about the role of the federal courts in protecting voting rights.
At the hearing, Pickering again attempted to dismiss as an "academic exercise" his authorship while in law school of an article that described for the state legislature how it "should" fix the state's law penalizing interracial marriages so that it could be enforced, advice that the legislature promptly took. He acknowledged that he did have contact with the infamous Mississippi Sovereignty Commission, contrary to his testimony in 1990, and had voted to help fund it twice. He suggested that his contact was because of concern about infiltration of a union in his home town by the Klan. This explanation troubled Senator Durbin, in light of the clear anti-civil rights activities of the Commission. In fact, Pickering's claim is directly contradicted by the very Sovereignty Commission document he reviewed to refresh his recollection. That document states that the Commission was investigating "infiltration" by a pro-civil rights group, the Southern Conference Education Fund, not the Klan.
At the hearing and elsewhere, Pickering's supporters have attempted to dismiss concerns about the nominee's record by pointing to instances where he has personally opposed blatant racism, notably his brief testimony given in a 1967 trial against a leader of the Klan. It is true that this was a courageous and commendable act. But the act itself does not necessarily mean, as some Pickering supporters suggest, that he was a champion of civil rights, or even that the testimony was motivated by opposition to the Klan's defense of segregation. A book by Chet Dillard, one of Judge Pickering's supporters, indicates that growing Klan violence was threatening the business establishment in Laurel, Pickering's home town.
Dillard's book includes the following portion of a public statement regarding Klan violence issued in the mid-1960s by the local District Attorney (Dillard), the sheriff of Jones County, the Mayor of the City of Laurel, the county attorney (identified elsewhere in Dillard's book as Charles Pickering) and the Laurel Chief of Police:
- We, the undersigned elected officials and public officers charged with the responsibility of protecting you and your property, wish to publicly state and make known our position and intentions concerning certain acts of violence which have recently taken place in Jones County. While we believe in continuing our Southern way of life and realize that outside agitators have cause [sic] much turmoil and racial hatred, let there be no misunderstanding, we oppose such activities, but law and order must prevail. [emphasis added]
In evaluating Pickering's commitment to civil rights legal principles and hence his qualifications for a lifetime appointment to the court of appeals, of far greater relevance than such conduct as his Klan testimony 35 years ago is how he has handled broader civil rights issues as a state Senator and then as a federal trial judge. In those important and influential public positions, Pickering has been sorely wanting, as his record reveals.