Although we have not been able to review Judge Pickering's entire 30-year public record before becoming a federal judge, several aspects of his activities with respect to civil rights have drawn attention and concern. These include his record as a state senator on voting rights issues, and two subjects about which he has testified before the Senate Judiciary Committee: an article he wrote concerning a former Mississippi law providing criminal penalties for interracial marriage, and his involvement with the notorious Mississippi Sovereignty Commission.
During the period of Pickering's service as a Mississippi state senator in the 1970s, the Senate passed voting-related measures that helped perpetuate discrimination against African Americans. When Pickering was elected in 1972, blacks in Mississippi were already litigating a lawsuit, Connor v. Johnson, challenging multi-member state legislative districts that seriously harmed minorities and helped keep the state Senate all-white until the end of the 1970s. In 1973, Pickering voted for, and the Senate passed, a partial Senate redistricting plan that continued to provide for county-wide voting in a populous county, rather than creating single-member districts, harming minority voting rights. In 1975, Pickering voted for a broader Senate-passed measure that similarly provided for county-wide district voting. Pickering was Secretary of the Elections Committee that wrote legislative history for the 1975 plan. In language foreshadowing Pickering's criticism as a judge of reapportionment necessitated by court orders, the committee stated that it was seeking to avoid "unwarranted hardship upon voters and election officials by structuring voting precincts on [census] enumeration districts which are subject to frequent change." Only after pressure from court orders in Connor at the end of the 1970s did the Mississippi legislature finally enact single-member districts, helping result in the election of two African American Senate members.
As a state senator, Pickering also co-sponsored legislative proposals that were harmful to minority voting rights. In 1975, when Congress was to renew Section 5 of the Voting Rights Act mandating pre-clearance of voting changes in jurisdictions with a history of discrimination like Mississippi, some southern legislators opposed it. Pickering co-sponsored a Mississippi Senate resolution calling on Congress to repeal the provision or apply it to all states, regardless of their discrimination history. In addition, both in 1976 and 1979, Pickering co-sponsored so-called "open primary" legislation that would have abolished party primaries and required a majority vote to win state office. The measure was criticized as discriminatory before its passage in 1976, and both years it was prevented from taking effect due to Justice Department objections under the Voting Rights Act.
Another important civil rights issue that came up during Pickering's service as a state senator concerned the infamous Mississippi Sovereignty Commission. The Sovereignty Commission, a state-funded agency, was created not long after the decision in Brown v. Board of Education in order to resist desegregation, and was empowered to act as necessary to protect the "sovereignty" of the state of Mississippi from the federal government. The Commission infiltrated and spied on civil rights and labor organizations and reported on their activities. It compiled dossiers on civil rights activists and used the information to obstruct their activities. The Commission existed until 1977, when the state legislature voted to abolish it and to seal its records for 50 years. Pickering, who was a state senator at the time, voted in favor of sealing the records, and was asked about the subject at his 1990 confirmation hearing before the Senate Judiciary Committee. In 1990, Pickering testified that "I never had any contact with that agency and I had disagreement with the purposes and the methods and some of the approaches that they took. . . I never had any contact with the Sovereignty Commission." He further testified, pertaining to the time during which he served in the state Senate before the abolition of the Commission (1972-1978), that "this commission had, in effect, been abolished for a number of years. During the entire time that I was in the State Senate, I do not recall really of that commission doing anything. It already was de facto abolished. It was just not functioning." Pickering stated that "I know very little about what is in those [Commission] records. In fact, the only thing I know is what I read in the newspapers."
In fact, as a state senator, Pickering voted in 1972 and 1973 to appropriate money "to defray the expenses of" the Sovereignty Commission. These votes suggest not only that the Commission was still active at that time, but also that Pickering was familiar with and supported its activities, at least enough to vote in favor of appropriating state monies to fund them.
Moreover, evidence indicates Judge Pickering did have contact with the Sovereignty Commission. At the time of Judge Pickering's 1990 confirmation hearing, the records of the Sovereignty Commission were still sealed, pursuant to the legislature's directive. However, several years ago, in response to litigation, the courts in Mississippi ordered that the Commission records be made public. A review of those records has uncovered documents indicating contact between Pickering and the Commission. A memorandum by a Commission investigator to the Director of the Commission dated January 5, 1972 stated that "Senator Charles Pickering" and two other state legislators were "very interested" in a Commission investigation into union activity that had resulted in a strike against a large employer in Laurel, Pickering's home town. Also according to this memorandum, Pickering and the other legislators had "requested to be advised of developments" concerning infiltration into the union, and had requested background information on the union leader. Memorandum from Edgar C. Fortenberry to W. Webb Burke (January 5, 1972), at 3. Subsequent memoranda written in 1972 by the same investigator indicate follow-up activities of the nature identified in the January 5, 1972 memorandum. Particularly in light of his 1990 testimony, Pickering's votes in favor of funding the Sovereignty Commission and his other apparent involvement with it are extremely disturbing.
The Mississippi NAACP and other critics of Pickering have also raised the issue of a law review article he wrote on Mississippi's law criminalizing interracial marriage. Until 1967, when the United States Supreme Court held such laws to be unconstitutional, interracial marriage was prohibited by statute in a number of states, including Mississippi. In that state, interracial marriage was a felony punishable by up to ten years in prison. In 1958, the Mississippi Supreme Court held that a problem in the language of the state statute criminally penalizing interracial marriage made the criminal law unenforceable. The court therefore reversed the conviction of an African American woman for "cohabiting with" a white man.
In 1959, while he was a law student at the University of Mississippi, Pickering wrote an article concerning the result of that state Supreme Court case, which had rendered unenforceable the state's law penalizing interracial marriage. Charles W. Pickering, "Criminal Law - Miscegenation - Incest," Vol. XXX, Mississippi Law Journal 326 (1959) (hereafter "Pickering, 'Miscegenation.'"). In his article, Pickering advised the state legislature as to how it could cure the problem in the statute so as to render the law enforceable. The article specifically stated that if the law were to "serve the purpose that the legislature undoubtedly intended it to serve, the section should be amended." Pickering, "Miscegenation," at 329 (emphasis added). The very next year, the state legislature amended the statute in accordance with Pickering's advice.
In his article, Pickering expressed no moral outrage over laws prohibiting and criminalizing interracial marriage, nor did he condemn them. Indeed, even though the California Supreme Court ten years earlier had held its state laws prohibiting interracial marriage to be unconstitutional, Pickering pointed out in his article that there had been what he called a "vigorous dissent" in that case. Pickering, "Miscegenation," at 328 n.9.
While this article was written many years ago, Pickering has not taken the opportunity presented to him at either of his confirmation hearings to repudiate it. At each of his two hearings before the Senate Judiciary Committee (in 1990 when he was nominated to the District Court and in October 2001 concerning the pending nomination) Pickering was asked about this disturbing article. While Pickering testified last year that he believes that "who one marries is a personal choice and that there should not be legislation on that," at neither hearing did he even express regret over having written the article. To the contrary, at the first hearing he sought to brush aside the article as an "academic exercise." Moreover, at his most recent hearing, Pickering mischaracterized what he had written, telling the Senate Judiciary Committee that "I predicted in that article that those statutes would be changed in the future..." In fact, what he had written was this:
Certainly, recent decisions in the fields of education, transportation, and recreation, would cause one to wonder how long the Supreme Court will allow any statute to stand which uses the term "race" to draw a distinction. However, it is submitted that the Supreme Court will not invalidate the miscegenation statutes, for some time at least.
Pickering, "Miscegenation," at 329 (emphasis added). The fact that Pickering still defends his writing of this article and does not seem to evidence any understanding of the evil wrought by such laws indicates disturbing insensitivity to civil rights concerns.