Contrary to the disinformation campaign that was waged by right-wing leaders in support of Pickering’s nomination in the last Congress and that is being waged once again, opposition to Judge Pickering’s promotion to the Court of Appeals was not then and is not now a personal attack on him as an individual. As was made abundantly clear in the lengthy reports issued by People For the American Way and other organizations, the opposition to Pickering’s confirmation focused precisely on his judicial philosophy and the quality of his judicial work. In particular, those reports addressed Judge Pickering’s long public record, first as a Mississippi state Senator and, since 1990, as a federal district court judge, the very positions that reflect most particularly on his qualifications as well as on his view of legal principles and his approach to judging.
As those reports demonstrate, much of the opposition to Pickering’s confirmation properly centered on concerns about his troubling civil rights record, which is further discussed below. In response to these legitimate concerns, a number of Pickering’s supporters accused those who had raised those concerns of calling Pickering a racist. This was a false and irresponsible charge, made in an effort to deflect scrutiny of the real issues. In effect Judge Pickering’s supporters argued that it is impossible to criticize Pickering’s public record on the principles that govern civil rights law without accusing him of being a racist. 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, some of Pickering’s supporters set up a straw man of “race-baiting” that they hoped to dismiss with the fact that some African Americans supported his confirmation.
As with Trent Lott and civil rights, the question is not what is in Judge Pickering’s heart but in his record. The question is not whether, as Pickering’s supporters claim, he is a decent man who has done personally decent things in his life, but whether he has a judicial philosophy that threatens civil rights protections. We acknowledge, as we have previously, that Pickering has personally performed decent if not courageous acts in Mississippi that have contributed to positive race relations.1 But the stilted view of some of Pickering’s supporters that only deliberate racism threatens civil rights principles and progress blinds them 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. As the examination of Judge Pickering’s record has revealed, his judicial philosophy would pose a grave danger to the rights and liberties of ordinary Americans if he were to be elevated to the Fifth Circuit, which already has issued a number of troubling decisions on civil and constitutional rights.
1 Among these, according to Judge Pickering’s supporters, was his brief trial testimony in 1967 against a leader of the Ku Klux Klan. It is true that this was a courageous and commendable act. To the extent, however, that Pickering’s supporters have repeatedly cited this act in an effort to bolster his civil rights record, it is worth noting that by 1967, “even the white establishment of Mississippi had begun to decide that Klan violence was bad for business.” Clarence Page, “Fight Over Judges Replays Our Bitter History,” Chicago Tribune (Feb. 13, 2002) (citing William Taylor, who at the time was Staff Director for the U.S. Civil Rights Commission). Indeed, Clear Burning, 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.