After the U.S. Senate twice determined that Charles W. Pickering Sr. did not deserve promotion to a lifetime appointment on the U.S. Court of Appeals for the Fifth Circuit largely because of his lifelong opposition to civil rights, President Bush sidestepped the confirmation process and granted a recess appointment. Adding insult to injury, the president made his announcement hours before the Martin Luther King Jr. holiday.
Defending the integrity of the federal courts is essential for our nation, and the president’s decision to vouch so strongly for someone whose actions and temperament render him unsuitable for elevation to this important court is regrettable.
The federal courts are called the guardians of the Constitution because their rulings protect the rights and liberties guaranteed therein. For many Americans, the federal judiciary is the first line of defense against violations of dearly held constitutional principles; for others, it is the last bastion of hope in a system that has marginalized, mistreated or simply ignored them.
The fair and balanced composition of the federal judiciary is a civil rights issue of profound importance to all Americans, because the individuals charged with dispensing justice in our society have a direct impact on civil rights protections for us all. As such, the federal judiciary must be perceived as an instrument of justice, and the individuals who are selected for this branch of government must be the embodiment of fairness and impartiality.
When President Bush first nominated Pickering in 2001, exhaustive and careful review of his public record — from law student to state legislator to judge — left little alternative but to oppose the nomination because of his extreme views on civil rights, women’s rights and constitutional issues.
While in law school, Pickering supported stronger criminal penalties for violating a ban on interracial marriage. In a three-page article for the University of Mississippi Law Review, he urged the legislature to pass a stronger law against the practice.
As a state senator in the 1970s, Pickering twice voted for a reapportionment plan that would increase the number of senators per district while diluting the voting strength of African Americans and other racial minorities.
As a district court judge, Pickering made extraneous statements expressing disdain for plaintiffs in race discrimination suits. In cases such as Seeley v. City of Hattiesburg that involved a black firefighter and Johnson v. South Mississippi Home Health involving an African-American registered nurse, Pickering’s identical language in both opinions described them as having “all the hallmarks of a case that is filed simply because an adverse employment decision was made in regard to a protected minority.”
In 1993 he published an opinion calling the one-person, one-vote doctrine embedded in the Voting Rights Act as “obtrusive.”
And one year later, he showed remarkable sympathy for cross-burners. While presiding over a trial involving a cross burning in the yard of an interracial family, Pickering aggressively promoted his views to prosecutors that the sentence for the one defendant who was convicted at trial was too severe, even though the law mandated it. In the end, he persuaded prosecutors to drop the charge that would have required the long sentence.
Defending cross burners? Perpetuating voter discrimination? Criminal bans on interracial marriage? When thinking of someone who has this belief system, one certainly does not think of a judge — particularly a judge presiding over a Circuit Court with the largest percentage of people of color in this country. Unquestionably, much is at stake when it comes to civil rights.
The Fifth Circuit Court has been a catalyst for positive change in this country. This is the Circuit of John Minor Wisdom who ordered that James Meredith be admitted to the University of Mississippi; Richard Rives who outlawed segregation on the Montgomery, Alabama city buses; Elbert Tuttle who ordered the integration of the University of Georgia and struck down Louisiana’s segregated pupil placement laws; and finally, John Brown who, in U.S. v. Mississippi, wrote that “no nation can survive if it flagrantly denies its citizens the right to vote.”
Today the Fifth Circuit is one of, if not the, most hostile appellate courts in the country when it comes to civil rights. The Fifth Circuit is now the Hopwood Court that refused to apply Bakke—the 1978 Supreme Court case that upheld the use of race as a factor for college admissions — impacting educational opportunities for students of color. The Fifth Circuit is now the Reeves Court that issued an opinion about the “intent” standard in employment discrimination cases so extreme it was overturned by the U.S. Supreme Court, 9 to 0. (The Fifth Circuit determined that Roger Reeves, 57, might have offered sufficient evidence for a jury to conclude that the company’s decision to fire him was pretextual but failed to provide additional evidence that the decision was intentionally discriminatory based on age, imposing an unrealistic standard of proof.) The Fifth Circuit is the LULAC v. Clements court that held that the Voting Rights Act does not apply to at-large judicial elections — again, an opinion so extreme it was reversed by the Supreme Court.
Dr. Martin Luther King Jr. was a man who wanted equality for all Americans, including equality for the people of Mississippi, the people of Texas, and the people of Louisiana. The judicial appeals process is made to give all Americans equal access to the courts and to the law. With extreme judges who have a record of hostility to civil rights, and further, with appointments that avoid the judicial confirmation process, how will progress continue to be made? How will Dr. King’s dream ever be realized?