Some Pickering supporters are arguing in effect that it is impossible to criticize Judge Pickering's public record on the principles that govern civil rights law without accusing him of being a racist. The Wall Street Journal editorial board in particular sees no distinction between the two. By reducing carefully documented concerns about the impact of Pickering's rulings, judicial philosophy, and record as a public official into an alleged smear about Pickering's personal attitudes on race, the Journal and other supporters set up a straw man of "race-baiting" that they hope to dismiss with the fact that some African Americans support his confirmation.
Our conclusion that he should not be elevated to the appeals court is not changed by the fact that Pickering, in other contexts, has acted in praiseworthy ways. His actions as a community leader in his hometown and the support he receives from his neighbors are far less relevant to his potential role as a 5th Circuit judge than his record on the federal bench. The Wall Street Journal's stilted view that only deliberate racism threatens civil rights principles and progress blinds it to the fact that it is quite possible for Judge Pickering to treat people fairly and decently in his personal interactions and to approach broader constitutional and legal questions in ways that threaten the enforcement of civil rights protections. Because our principled opposition has not been premised on the suggestion that Judge Pickering is a racist, it cannot be dismissed by charges of race-baiting.
As this memorandum will document, our opposition to Pickering's elevation to the appeals courts is grounded in an examination of his public record and a consideration of the impact that his approach to civil rights and other legal principles would have if he were granted a seat on the 5th Circuit. That is why his confirmation is opposed by the Magnolia Bar Association (the state's African American bar group), and every chapter of the NAACP in his home state, as well as by the national NAACP and a wide coalition of public interest organizations.