February 26, 2002

by Monica Martinez, Field Organizer, and Jenny McDowell, PAC Intern

A deeply divided Senate Judiciary Committee held a second hearing on Feb. 7 for the controversial judicial nominee Charles Pickering, Bush's pick for the Fifth Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi. While Democratic members of the committee posed incisive and compelling questions about Pickering's troubling record on abortion and civil rights, the committee's Republicans — most of whom are avowed foes of a woman's right to choose — lavished praise on Pickering.

Dianne Feinstein (D-Calif.) grilled Pickering about his ability to reconcile the law and his personal viewpoint in cases involving reproductive rights, gun control, and civil rights. Feinstein expressed particular concern about Pickering's assertion that he would support a ban on abortion, except in cases of rape and danger to the mother's health. Pickering — who mounted an effort throughout the hearing to avoid being buttonholed on any issue — replied that he could make a distinction between the law and his opinion.

The Mississippi judge also carefully worded his responses to Maria Cantwell (D-Wash.), who asked Pickering to explain his opinion concerning rights to privacy not clearly spelled out by the Constitution-specifically, abortion. Again, he declined to clarify his position on abortion, countering that his opinion was immaterial. Pickering added that Fifth Circuit precedent bound him "until it is reversed."

Committee Democrats also focused on Pickering's civil rights record, at the center of the controversy surrounding his nomination. Of particular concern to Democratic senators are Pickering's ties to Mississippi's Sovereignty Commission, a state-funded agency established after Brown v. Board of Education to oppose integration efforts. Probing Pickering's relationship to this group, Feinstein asked Pickering about his decision — while serving in the Mississippi state senate — to twice vote to fund this group, which monitored civil rights leaders in the 1960s and 1970s. Pickering alleged that at the time of the vote, he did not realize the Commission was still functional, then stated he would not have voted the same way today.

Shedding more light on the nominee's past, Russ Feingold (D-Wis.) questioned Pickering about the statements he made when he switched to the Republican party in 1964, the year African-Americans intensified their efforts to get the vote in Mississippi and other states across the South. At the time, Pickering allegedly stated that Mississippi "had been heaped upon with humiliation" by the national Democratic party's support of many civil rights initiatives and that the "Republican party was the only hope for rescuing Mississippi from socialism." Pickering offered a convoluted, directionless explanation and concluded by saying he felt that African Americans should have the right to vote. Only after further prodding by Feingold did Pickering grudgingly admit that today he would not have made the same statements he made then.

Richard Durbin (D-Ill.) broached the issue of Pickering's role as judge in the 1994 trial of a man accused, along with two others, of burning an 8-foot cross on the lawn of an interracial couple. Pickering also faced questions about the trial from John Edwards (D-N.C.), who said that Pickering had offered to grant a new trial, on his own motion. Pickering first denied the allegations, then stated he had "no recollection of having said that." When Durbin asked why Pickering had gone to such great lengths to assist the defendant, Pickering replied that he was concerned about the unfair disparity in sentencing. (The other two defendants, who pleaded guilty, received less severe sentences.)

Another troubling statement came after Arlen Specter (R-Pa.) asked Pickering to provide examples of his progressive stance on civil rights: Pickering described how he and his wife had the African-American friend of their son as a dinner guest.

In answer to a question posed by Durbin, Pickering attempted to justify calling his former law partner — a self-described firm believer in segregation who allegedly stated he would not allow African-American children in schools — a progressive in terms of racial relations.

Despite giving ambiguous responses to the Democrats' questions about his uncertain past, Pickering received lavish praise from committee Republicans. While Democrats expressed genuine concern about Pickering's stance on abortion and civil rights, Mitch McConnell (R-Ky.) commended Pickering for "moral courage" during the civil rights struggle. According to McConnell, if Pickering did not push for more progress in the area of civil rights, it was only because he wanted to bring change without inciting further violence.

Attacking what he called "leftist interest groups" for blocking Pickering's confirmation, Orrin Hatch (R-Utah) extolled Pickering for his supposed support of civil rights, in particular for founding the University of Mississippi's Institute of Racial Reconciliation. McConnell also dismissed charges that Pickering used the bench to proselytize. According to McConnell, groups that express concern about Pickering's assertion that the Bible should be the basis by which "all men's conduct should be judged" are simply displaying "hostility towards religion."

Democratic members of the Senate Judiciary Committee raised important questions about Pickering, a man whose past actions speak more loudly than his present words.