Dixie Tricks

Bush sidesteps Senate to seat extremist Mississippi judge

Wade Henderson

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?

Wade Hen­der­son is exec­u­tive direc­tor of the Lead­er­ship Con­fer­ence on Civ­il Rights, the nation’s largest and most diverse civ­il and human rights coali­tion. For more infor­ma­tion, vis­it www​.civil​rights​.org.
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