Pickering Piece on March 28, 2004 “60 Minutes” Episode

Categories: Advocacy Letter

Recipient: Don Hewitt

Don Hewitt
Executive Producer, 60 Minutes
524 West 57th Street
New York, NY 10019

Dear Mr. Hewitt:

On behalf of the Leadership Conference on Civil Rights, the nation’s oldest, largest, and most diverse civil and human rights coalition, I am writing to express my outrage over the one-sided portrayal of the debate surrounding the nomination of Charles Pickering to the United States Court of Appeals for the Fifth Circuit that aired on “60 Minutes” on March 28. Far from a balanced piece of journalism, your segment unfairly distorted arguments put forth by Pickering’s opponents; failed to accurately convey the range of serious concerns that many Americans have with this nomination; and chose to highlight only those aspects of Pickering’s record supporting your thesis that opposition to his confirmation is thin and that the criticism is exaggerated.

Most significantly, Sunday’s piece, rather than discussing the arguments of proponents and detractors forthrightly, instead set up a straw-man: the notion that opposition to Pickering is rooted in charges that he is a racist. While framing the debate in this way might make good television, it is not, in fact, any part of the real debate over this confirmation. The real question is whether Pickering’s record – as a state legislator, lawyer, and federal trial court judge – is one that warrants elevation to our nation’s second highest federal court. I strongly believe that even a cursory look at the facts reveals that Pickering’s record falls far short.

Your portrayal of Pickering’s conduct in the cross-burning case left the impression that Pickering’s “pressure” of federal prosecutors was not extraordinary and was, in fact, done to ensure fairness in sentencing for the convicted cross-burners. Omitted, however, was any context for this case. It is a common feature of our criminal justice system that those who plead guilty (thus sparing the government the time and expense of trial) generally receive lighter sentences than those who proceed to trial. If Pickering is outraged by this aspect of our criminal justice system, why was he silent about the hundreds of cases he sees every year where defendants receive disparate sentences? At a time when Congress has enacted scores of severe mandatory minimum sentences in the context of the so-called “war on drugs,” can it really be that a five-year sentence for burning a cross in Mississippi on the property of an interracial couple is the most egregious case of disproportionate sentencing that Pickering has seen in his twelve years on the bench? Whatever the reason for Pickering’s ex parte communications with federal prosecutors in this case and not others, Pickering’s conduct showed poor judgment, and a lack of appreciation for the severity of the harm caused by the defendant’s actions. Five years in prison was too much for the cross-burner? Not according to Congress which set the mandatory minimum sentence, and not according to the victims of this heinous act. Also, your piece did not mention that Rule 3.A.4 of the Code of Conduct for U.S. Judges specifically forbids ex parte contacts between a judge and attorneys for one side of a case about that case, thus calling into question whether Pickering’s conduct violated judicial ethics.

Your piece also suggested that the only issue of concern to the civil rights community regarding Pickering’s nomination was the cross-burning case. This is completely untrue. In fact, Pickering’s record reveals a judicial philosophy that is far outside the mainstream on a host of core civil rights issues. Specifically, Pickering has expressed his disapproval of the effect the Voting Rights Act and the “one person, one vote” doctrine have had on local and state government control. He has called the doctrine of “one person, one vote” – adopted by the Supreme Court to protect the rights of racial minorities to an equal voice in the voting process – “obtrusive” and something that legislatures have reluctantly learned they “must live with.” And, while the federal courts, including the Supreme Court, have long recognized the need to create majority-minority districts in order to redress serious problems of discrimination against African-American voters in jurisdictions where voting is polarized along racial lines, Pickering has referred to the creation of majority-minority districts as “affirmative segregation.”

As a judge, Pickering has also expressed severe criticism 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 caused people “covered by such laws” to “spontaneously react that discrimination caused” any adverse action against them.

At his February 7, 2002, hearing, Pickering raised even more concerns about his views regarding civil rights cases. Senator Edward Kennedy (D-Mass.) and others questioned Pickering closely about disparaging remarks he has injected into cases involving anti-discrimination laws and the people who file employment discrimination cases. As part of his response, Pickering stated his belief that the EEOC, through its own mediation efforts, resolves most of the “good” job bias cases and that cases that come to court generally have already been investigated by the EEOC and been determined to have no basis. Besides being factually incorrect – given that the EEOC typically litigates only 3.5 percent of the charges in which it finds reason to believe discrimination has occurred – this statement revealed Pickering’s strong bias against plaintiffs who bring Title VII cases to his court.

While your piece portrayed Pickering’s record on civil rights before he became a federal judge as one of promoting racial healing, an accurate recounting of those years suggests a different conclusion. As a state senator in Mississippi, Pickering voted in favor of a resolution calling for a Constitutional Convention to consider an amendment to ban race-based school desegregation orders. Pickering cast this vote in 1973, almost 20 years after the Supreme Court’s landmark school desegregation decision in Brown v. Board of Education. In addition, both in 1976 and 1979, Pickering co-sponsored so-called “open primary” legislation that would have abolished party primaries and therefore made it more difficult for minority candidates to win state office. The measure was criticized as discriminatory before its passage in 1976, and both years it was prevented from taking effect due to Justice Department objections under the Voting Rights Act.

Finally, many in the civil rights community are deeply troubled that Judge Pickering began his legal career with an article supporting an amendment to correct a loophole in Mississippi’s miscegenation statute and thus allow the imposition of criminal penalties for violating the ban on interracial marriage. At the time of Judge Pickering’s writing, a trend had begun among states toward repealing these insidious statutes. And, the criminal penalties for violating Mississippi’s miscegenation law were the toughest in the country. Nine months after the publication of Judge Pickering’s article, the Mississippi Legislature amended the miscegenation statute in accordance with Judge Pickering’s recommendation to allow these penalties to be imposed.

Your piece rightly notes several aspects of Pickering’s record that are praiseworthy. It is commendable that he testified truthfully in the trial of Ku Klux Klan leader Sam Bowers that Bowers had a reputation for violence, and that he kept his children in public school after the schools were integrated. However, these positive acts of courage do not put the rest of Judge Pickering’s record off-limits to scrutiny. It is Pickering’s complete record – including opposition to key elements