Several aspects of Pickering’s public record before he became a federal judge drew particular attention and concern when President Bush first nominated him to the Court of Appeals. In particular, these included Pickering’s record as a Mississippi state Senator on voting rights issues, a record that foreshadowed his actions as a judge on such issues.
As a Mississippi state Senator, Pickering supported voting-related measures that helped perpetuate discrimination against African Americans. For example, in 1973, Pickering voted for a partial Senate redistricting plan that harmed minority voting rights by continuing to provide for county-wide voting in a populous county rather than create single-member districts. In 1975, Pickering voted for a broader Senate-passed measure that simply provided for county-wide voting. Also 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 legislators opposed it. Pickering co-sponsored a Mississippi Senate resolution calling on Congress to repeal the provision or apply it to all states (which would in effect have gutted Section 5) regardless of their discrimination history. PFAW Report at 8-9.
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. When Pickering was questioned at his Feb. 7, 2002 hearing by Sen. Feinstein about his support for this legislation, which an African American state legislator had stated would diminish the influence of black voters, Pickering testified that he did not view the open primary bill as having a negative effect on African Americans because, he said, they did not 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, as noted, 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. PFAW Report at 9.
Pickering has long been a staunch opponent of a woman’s right to reproductive freedom. Among other things, as a state Senator, he voted for a resolution calling for a constitutional convention to propose a “human life” amendment to the Constitution. PFAW Report at 24. Although Judge Pickering as of his February 2002 confirmation hearing had not had a case come before him dealing with reproductive freedom and still has not to our knowledge, the Fifth Circuit has heard at least a dozen such cases since 1992. This made and still makes Pickering’s record on these important issues pertinent in considering how he, as a judge, would approach cases that raise them.