When he was in law school, Pickering had written 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 Mississippi legislature promptly took. In his article, Pickering expressed no moral outrage over laws prohibiting and criminalizing interracial marriage, nor did he condemn them. PFAW Report at 10-11. This subject was raised at each of Pickering’s confirmation hearings.
Although some of Pickering’s supporters have sought to dismiss the significance of this troubling article because it was written many years ago, no such rationale explains Pickering’s present day testimony about the article. First, Pickering has never taken the opportunity presented to him at any of his confirmation hearings to repudiate the article or to express regret for having written it. To the contrary, at his first judicial confirmation hearing, in 1990, he sought to brush the article aside as an “academic exercise.” Then, at the initial hearing on his appellate court nomination on October 18, 2001, 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, in his article he had “submitted that the Supreme Court will not invalidate the miscegenation statutes, for some time at least.” PFAW Report at 11-12. And then, at his hearing on Feb. 7, 2002, Pickering once again sought to dismiss his article as an “academic exercise.”
While some of Pickering’s supporters and many media reports have accepted this characterization at face value, the article was far more than that. There was nothing “academic” about these laws, which harmed real people, or about Pickering’s advice to the legislature that the state law making interracial marriage a felony punishable by up to ten years in prison “should” be amended, or about the fact that the legislature did amend the law as he had suggested, making it enforceable. Moreover, Pickering’s recent statements to the Judiciary Committee when asked about this article further reflect the disturbing insensitivity and indifference to civil rights concerns seen in his record as a state Senator and as a federal judge.