Charles Pickering – Court of Appeals, Fifth Circuit

Although he served on the appeals court for a year as a recess appointment, Pickering’s Senate confirmation was blocked by filibuster and his nomination was withdrawn.

Bush Installed Pickering On Federal Appeals Bench Via Recess Appointment. According to the Los Angeles Times, “President Bush unilaterally elevated controversial Mississippi Judge Charles W. Pickering Sr. to the federal appeals court on Friday, opening a new front in the administration’s nearly three-year battle with Congress over judicial nominees. Bypassing the confirmation process that Senate Democrats have used to block Pickering and some other Bush nominees, the president installed Pickering by a recess appointment. The constitutional device — unusual but not unheard of — gives the judge a year to serve until a new Congress convenes in January 2005.” [Los Angeles Times, 1/17/04]

NAACP Opposed Pickering’s Confirmation, Saying His Rulings “Raise Suspicious” About His Ability To “Administer Fairness AS He Interprets The Federal Law.” According to the Los Angeles Times, “The National Assn. for the Advancement of Colored People asked Congress to support its opposition to President Bush’s nomination of a Mississippi judge. […] The group has said it opposes Senate confirmation of Judge Charles Pickering of Mississippi, nominated to serve on the U.S. 5th Circuit Court of Appeals in New Orleans. ‘Judge Pickering . . . in most of his rulings, continues to raise suspicions about whether or not he will be able to interpret . . . and administer fairness as he interprets the federal law,’ Mfume said.” [Los Angeles Times, 2/17/02]

Citing His Record On Civil Rights And Women’s Rights, The Congressional Black Caucus “Adamantly” Opposed Pickering. According to Gannett News Service, “In a year marked with rancorous partisan squabbling over who should fill more than 100 federal judgeships, Judge Charles Pickering’s candidacy for a seat on the 5th U.S. Circuit Court of Appeals has become the most controversial nomination. The National Association for the Advancement of Colored People’s Legal Defense Fund and People for the American Way have questioned Pickering’s record. Last week, the Congressional Black Caucus said it ‘adamantly opposes the nomination’ in a letter to Senate Judicial Committee Chairman Patrick Leahy, D-Vt. […] [T]he black caucus’ letter said the conservative judge ‘has a quarter-century record of hostility to women’s rights, including a woman’s right to choose.’ It accused Pickering of opposing the Equal Rights Amendment and helping draft a Republican convention platform that protested the Supreme Court’s decision in Roe vs. Wade, which legalized early term abortions. Citing a law journal article about Mississippi’s old antimiscegenation law that Pickering wrote 43 years ago, the black caucus said the judge’s ‘career and record on civil rights is a grave concern.’ The law article, published in a 1959 Mississippi Law Journal while Pickering was on its staff as an Ole Miss student, discussed the case of a black woman convicted of breaking a Mississippi law against interracial marriages by marrying a white man.” [Gannett News Service via Nexis, 10/24/01]

As A Law Student, Pickering Wrote An Article Advising Mississippi On How To Change Anti-Miscegenation Statute To Make It Enforceable. According to People for the American Way, “1958, the Mississippi Supreme Court held that a problem in the language of the state statute criminally penalizing interracial marriage made the criminal law unenforceable. The court therefore reversed the conviction of an African American woman for ‘cohabiting with’ a white man. In 1959, while he was a law student at the University of Mississippi, Pickering wrote an article concerning the result of that state Supreme Court case, which had rendered unenforceable the state’s law penalizing interracial marriage. In his article, Pickering advised the state legislature as to how it could cure the problem in the statute so as to render the law enforceable. The article specifically stated that if the law were to ‘serve the purpose that the legislature undoubtedly intended it to serve, the section should be amended.’ The very next year, the state legislature amended the statute in accordance with Pickering’s advice. In his article, Pickering expressed no moral outrage over laws prohibiting and criminalizing interracial marriage, nor did he condemn them. Indeed, even though the California Supreme Court ten years earlier had held its state laws prohibiting interracial marriage to be unconstitutional, Pickering pointed out in his article that there had been what he called a ‘vigorous dissent’ in that case. While this article was written many years ago, Pickering has not taken the opportunity presented to him at either of his confirmation hearings to repudiate it.” [People for the American Way, 1/24/02, internal citations removed]

In Unpublished Opinion, Pickering Argued That Anti-Discrimination Laws Make People Think Anything Bad That Happens Is A Result Of Discrimination. According to People for the American Way, “Unpublished opinions by Pickering in a number of discrimination cases contain much more severe criticisms of civil rights plaintiffs and the use of civil rights statutes. In one case in which he rejected a race discrimination claim, Pickering harshly complained about ‘the side effects resulting from anti-discrimination laws,’ which he suggested cause people ‘covered by such laws’ to ‘spontaneously react that discrimination caused’ any adverse action against them. ” [People for the American Way, 1/24/02, internal citations removed]

Pickering Opposed Creation Of Majority-Black Voting Districts. According to People for the American Way, “Judge Pickering has also criticized or sought to limit important remedies provided by the Voting Rights Act. In order to redress serious problems of discrimination against African American voters in some cases, the courts (including the Supreme Court and the Fifth Circuit) have clearly recognized the propriety and importance of creating majority-black districts as a remedy under appropriate circumstances. Judge Pickering, however, has severely criticized this significant form of discrimination relief. In one opinion, he called it ‘affirmative segregation.’ In another opinion in the same case, he claimed that such districts produce ‘polarization’ and complained that candidates elected in such districts ‘may well feel little need to accommodate the views of their minority white constituents.’” [People for the American Way, 1/24/02, internal citations removed]

Pickering Halted Proceedings On Case Alleging Power Company’s Racial Discrimination. According to People for the American Way, “Acting on his own motion, Pickering halted a race discrimination lawsuit filed by a local chapter of the NAACP against Dixie Electric Power Association in December 1993. In what was described as a potentially precedent-setting case, the NAACP charged that Dixie had discriminated against African American employees, and also against African American customers in terms of rate-setting and termination-of-service practices. According to a press report, immediately after the suit was filed, Pickering suspended all proceedings, issued a gag order prohibiting the parties from discussing the case publicly, and directed the two sides to explore settlement in a three month period. Apparently, Pickering also suspended the requirement that Dixie file an answer stating its position on the claims. In January 1994, officials of the NAACP chapter ‘were quoted in local press reports saying they believed the case was very important and could establish a precedent for similar cases against other rural cooperatives.’ When Pickering learned of these comments, he reportedly issued another gag order prohibiting the parties from commenting on the case. Pickering’s handling of the case was one of the factors specifically mentioned by the state NAACP in opposing his nomination.” [People for the American Way, 1/24/02, internal citations removed]

Pickering Gave Reduced Sentence To A Man Convicted Of Cross Burning. According to the Los Angeles Times, “But the Democrats revealed that as a federal trial judge in 1994, Pickering secretly pressed prosecutors to go along with an unusually lenient sentence for a man convicted of burning a cross outside the home of mixed-race couple. He and two other white men also fired a bullet at the house, narrowly missing the couple’s baby. Pickering called the incident a ‘drunken prank’ and refused to impose a seven-year prison term set by federal sentencing guidelines. He ultimately gave the man a 27-month prison sentence.” [Los Angeles Times, 12/23/02]

PFAW: Pickering Has Shown Disdain For Judicial Remedies For Uneven Voting Districts. According to People for the American Way, “[I]n several cases Judge Pickering has discussed the fundamental ‘one-person one-vote’ principle recognized by the Supreme Court under the Fourteenth Amendment. This principle, which calls for election districts to be nearly equal in population in order to protect the equality of all voters in our democracy, has been called one of the most important guarantees of equality in our Constitution.…In a lengthy criticism of the principle in one case, however, Judge Pickering called it ‘obtrusive’ and something that legislatures have reluctantly learned they ‘must live with.’ In that case, the defendants conceded that a deviation of more than 25% from equality was improper, in accordance with Supreme Court rulings that deviations of more than 16.4% are presumptively unconstitutional. In dicta, however, Pickering suggested that these deviations were ‘relatively minor’ and ‘de minimis’ and that he might well have held that they ‘would not violate the Constitution’ had that argument been raised. Pickering also declined to order special elections as a remedy in the case, even though he acknowledged that this remedy had been ordered in previous one-person, one-vote cases by the Fifth Circuit.” [People for the American Way, 1/24/02, internal citations removed]

Pickering Chaired GOP Platform Committee That Established First Anti-Roe V. Wade Plank. According to People for the American Way, “Pickering has long been a staunch opponent of a woman’s right to reproductive freedom. In 1976, he was chair of the Human Rights and Responsibilities Subcommittee of the National Republican Party Platform Committee that approved a plank for the party platform protesting Roe ‘as an intrusion into the family structure’ and supporting the efforts of those calling for a ‘right to life’ amendment to the Constitution. Pickering supported the Subcommittee’s plank, and in fact publicly announced before leaving Mississippi for the Republican Convention that he ‘would push for a platform with a statement against ‘abortion on call.’’Although the Republican Party today is well known for its opposition to reproductive choice in its platform, the 1976 Republican Party Platform was the first to oppose Roe v. Wade.” [People for the American Way, 1/24/02]