A FEDERAL district court judge named Charles Pickering is not likely to be promoted to the 9th U.S. Circuit Court of Appeals. It is true that he was nominated last spring by President Bush. But after Vermont Sen. James Jeffords defected from the Republicans in August, giving Democrats control of the Senate, his colleague Patrick Leahy became chairman of the Judiciary Committee, and judicial confirmations came to a screeching halt. Democrats on the Judiciary Committee are likely to vote unanimously against Judge Pickering's nomination, thereby killing it.
This is an interesting, and instructive, case for various reasons. The first reason is that Judge Pickering is from Mississippi, and that fact alone seems to have given the Democrats what amounts to a blank check to reject him. And because Mr. Pickering is in his 60s, it is presumed that he must have been an integral part of Mississippi's segregationist past.
It is more than a little unfair, in my view, to hold the opinions people held a half-century earlier against them, especially if they have long since changed their minds about particular issues. (I say this as one who cast his first presidential ballot for George McGovern.) After all, the Democratic chairman of the Appropriations Committee, Robert Byrd of West Virginia, was once a member of the Ku Klux Klan. And Sen. Hillary Rodham Clinton (D.-N.Y.) was a Goldwater Girl in her day.
But in fact, Judge Pickering was not only
not
an integral part of Mississippi's segregationist past, he was by all accounts a racial progressive. In the 1960s, he prosecuted the Klan for violent crimes, thereby losing his legislative seat at the next election. In the 1970s, he helped create the Institute of Racial Reconciliation at the University of Mississippi. Charles Evers, brother of the late Medgar Evers, and a longtime player in Mississippi politics, described to the Judiciary Committee his admiration for Judge Pickering's integrity and fair-mindedness, and complained that "I don't know where the NAACP and these groups are coming from calling Judge Pickering a racist."
All to no avail. Sen. John Edwards (D.-N.C.) demanded to know why Judge Pickering had complained to the Department of Justice about a prison sentence for someone who had burned a cross on the front lawn of a black homeowner. Because, Judge Pickering explained, he objected to the disparity between the mandatory seven-year term given to one defendant and the slap on the wrist given to a co-defendant who had fired a gun into the house but turned state's evidence. He was disturbed by the fact that one racist got seven years in prison, but his far more dangerous partner in crime got off essentially free.
None of this impressed Senator Edwards, who was content to suggest that Judge Pickering must approve of cross burning, or Senator Edwards's admirers in the press, who congratulated him for standing up to a bigot (Mary McGrory) and dressing down a "throwback" (Los Angeles Times) to pre-civil rights Mississippi. None of the Democrats on the committee could offer any evidence to support this deceptive picture, and none showed any inclination to grapple with the truth. The Pickering nomination is, effectively, dead.
No doubt, Judge Pickering is conservative on many issues, and opposes abortion -- although, as a federal circuit judge, his "personal views [on abortion] are irrelevant," he told the committee. If Democrats are uncomfortable confirming someone whose opinions are contrary to their own, they should feel free to cast their votes against Judge Pickering. What distinguishes this episode, however, is the fact that the nomination is not being fought on any legal or political principle, but on the basis of character assassination.
For Democrats, of course, it is payback time. They remember three Clinton appointees who were denied the courtesy of a hearing, much less a vote, when Republicans controlled the Senate. Such practices are unquestionably wrong. As Chief Justice William Rehnquist has said, every nominee to the federal bench deserves the opportunity to explain himself to the Judiciary Committee, and the courtesy of a Senate vote. But while the Republicans preferred to scuttle nominations by quietly burying them in procedure, the Democrats choose to subject nominees to public campaigns of lies, distortion and personal abuse. The groundwork is laid by those progressive organizations -- Alliance for Justice, People for the American Way, etc. -- that specialize in such dirty work; but senior Democrats depend on their propaganda skills, and lend their prestige to the climate of corruption.
In the fullness of time, the Republic will not stand or fall on the fate of one district judge from Mississippi at the hands of the Senate. But an increasingly ugly machinery that ruins personal reputations on the basis of public deceit is neither smart politics nor a system of checks and balances.
Philip Terzian, the Journal's associate editor, writes a column from Washington.
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