Saturday, January 18, 2003

The Pickering dilemma

I think liberals may be headed for another political disaster, judging by their handling so far of the Bush administration’s, um, “bold” re-nomination of Charles Pickering to a seat on the federal appeals court (see the post below).

If the campaign against Pickering continues as it has begun, it’s likely to wind up with the same result as two previous nominations handled in similar fashion, namely, those of John Ashcroft and Ted Olson. That is, both now hold office, and both have played Sauron to the Democrats’ Hobbit-like agenda, mowing down everyone in their respective paths.

The Ashcroft case was particularly instructive. Because some opponents mainly raised his interview with the neo-Confederate Southern Partisan magazine as indicative of racist views, Ashcroft’s supporters actually seized on this woefully inadequate characterization as though it contained the heart of opponents’ accusations.

And it was relatively easy to smack down, of course. Republicans had an easy time characterizing the opposition as running a “smear” campaign, and that was that.

I’ve always been uncomfortable anyway about the ease with which liberals apply the “racist” label, particularly since I’m someone who has a background dealing with the genuine neo-Nazi-type article. Bandying the term about loosely (like “fascist” as well) makes it just about meaningless, and robs the word of the power it should have when talking about the Richard Butlers of the world.

Moreover, I think its easy use denotes a kind of intellectual laziness. We think that if it’s successfully applied, then we have managed to marginalize our opponent. Being “racist” makes someone de facto a bad person. But we haven’t bothered to engage their thinking, or refute their inevitably bad logic, because it’s just easier to dismiss them. That kind of argument may work for like-minded liberals, but it doesn’t cut it with the rest of the world.

What needed to be said about Ashcroft wasn’t that he was a racist, but that he had a pattern of these kinds of associations, which included not just neo-Confederates but a number of dalliances with other extremists of a variety of stripes. These associations do not necessarily mean Ashcroft was an extremist himself -- but rather, that he displayed extremely poor judgment in making them. Essentially he let the good name of his office, which it is his public trust to protect, help legitimize extremist organizations of various kinds.

The nation expects better judgment than that out of its attorney general, just as it also expects better judgment than to mislead your president into making false assertions on an executive-privilege claim, as Ted Olson did in the 1980s, from its solicitor general. Those are the kinds of reasons that are persuasive to nearly anyone not addled by partisanship (which excludes nearly every Republican), and should have been the centerpiece of Democratic opposition to those nominations. Who knows? They might even have been able to generate a little bit of bipartisan support.

The same principle applies to Pickering. So far much of the opposition has been built around trying to demonstrate, a la Trent Lott, a predilection for hidden racist beliefs. This seems like a certain path to defeat.

Pickering is almost certainly not a racist, at least not the pernicious kind (like Lott) who make political careers out of pandering to the Dixie flag wavers. Building opposition to his nomination by trying to prove that he is seems counterproductive to me.

Republican politics in Mississippi for the past two decades has been divided between two factions: the Thad Cochran faction -- more enlightened white voters who sincerely are interested in racial reconciliation and attracting blacks to the party -- and the Trent Lott faction, which openly pandered to neo-Confederates and all-but-public bigots. Pickering, it appears, was somewhere in between the two -- he had a past similar to Lott’s (he was a segregationist in the 1960s), but he was more often aligned with the Cochran faction, and his record tends to reflect that. Pickering played an integral role in inducing the University of Mississippi to open an Institute for Racial Reconciliation, and he was reputed to be (privately, not publicly) involved in the campaign to get rid of the Confederate battle flag that remains in Mississippi's state flag.

I think it’s important in cases like this to get as much of a ground-level view as possible, so I have relied on a handful of friends and contacts in the South to try to get a closer view of what kind of person Pickering actually is.

Probably the most helpful has been my friend Jerry Mitchell, the reporter for the Jackson Clarion-Ledger whose name many of you may already know. Jerry is the journalist (immortalized in the otherwise awful Ghosts of Mississippi) whose work played a key role in breaking open the Medgar Evers case, and who has since done major work in exhuming the vaults of the old Sovereignty Commission and other unsolved murders from the Civil Rights era. (Check out this section of the Clarion-Ledger's Special Reports: Crimes of the Past. It's mostly devoted to Jerry's work.)

Here’s an excerpt from a story Jerry wrote Feb. 14, 2002 [the Clarion-Ledger’s archives are short-lived]:

State’s past haunts judge

History cited as reason Pickering nomination opposed

By Jerry Mitchell
Clarion-Ledger Staff Writer

Is it possible for the world to ever glimpse Mississippi without seeing the shadows of our past?

“Unfortunately not,” said David Sansing, professor emeritus of history at the University of Mississippi. “Mississippi is a convenient tool for both ends of the political spectrum. We have been used and will continue to be used.”

Sansing said U.S. District Judge Charles Pickering Sr. — who in the 1960s prosecuted members of the Ku Klux Klan — is being unfairly tarred with that broad brush of Mississippi’s past in his nomination to the 5th U.S. Circuit Court of Appeals.

But some civil rights leaders describe Pickering as a product of that past, a past which haunted both the Magnolia State and a nation.

Joe Parker, a political science professor at the University of Southern Mississippi, said the past is difficult to avoid. “You can’t get away from it,” he said. “It’s kind of like your relatives.”

By writing about miscegenation laws more than 40 years ago at Ole Miss, Pickering opened himself up to future criticism, he said.

Charles Sallis, co-author of the history book
Mississippi: Conflict & Change, said he has no opinion on Pickering’s nomination but believes people should be judged within the context of the times.

… “I would hate to be held accountable for something I believed 50 years ago,” he said. “My gosh, I’d be embarrassed. Mississippi has had bad public relations. We deserve most of it. But times have changed.”

… Those who oppose Pickering should know that by Mississippi standards in the 1960s, the judge “was a damn near flaming liberal,” Parker said. “If they want to see some real racists, come on down, or we can send you some up.”

All that said, what is also clear in examining Pickering’s record is that, like Ashcroft and Olson, he has displayed a pattern of regular and very serious lapses in judgment. It is fair to say, again, that anyone nominated for a judicial position as powerful as the 5th District Court of Appeals should be able to display a consistent record of good judgment, and Pickering fails badly in several instances. Moreover, rather than coming clean about these failures and addressing them forthrightly, Pickering and his allies have attempted to obfuscate the facts and distort the reality of his behavior.

Particularly damning is his behavior in that now-infamous 1992 cross-burning case. As Uggabugga has neatly mapped out for us elsewhere, it is clear that Pickering inappropriately lobbied to get a mandatory sentence lowered for a person who declined a Pickering-approved plea-bargain and went to trial instead (a cornerstone of the plea-bargaining system is the understanding that a person who chooses instead to take his case to trial risks facing a much stiffer sentence).

As even one of Pickering’s most vocal defenders put it in Jerry Mitchell’s story:

The most devastating evidence against Pickering is when he called Justice Department officials with regard to a cross-burning case, Parker said. “I’m sure there’s an explanation, but boy, it is a damaging thing.”

Moreover, the victim in the cross-burning case has spoken out as well:

But Brenda Polkey has asked the Judiciary Committee to oppose Pickering's nomination to the higher court.

"My faith in the justice system was destroyed when I learned about Judge Pickering's efforts to reduce the sentence of Mr. Swan," Polkey wrote in a letter to the panel.

The cross-burning case is hardly isolated. Of course, there are the pro-segregationist writings in the 1960s, and the associations with Sovereignty Commission operatives as well. More disturbing are Pickering’s denials about those associations when he testified during his earlier confirmation hearings.

There is also this case, [PDF file], which indicates a hostility toward the majority/minority district system, something about which he needs to be questioned during the next round of Senate hearings.

Again, Pickering has a track record of poor judgment, especially in racially charged cases, all of which should combine to make a case that he is unfit for the appeals court. It would be much easier -- and infinitely more effective -- to make this case than to claim that he is a closet racist.

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