Oppose the Confirmation of Charles Pickering

Media 10.29.03

Recipient: U.S. Senate

Dear Senator:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the confirmation of Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit. Our exhaustive and careful review of Judge Pickering’s public record — from law student to state legislator to judge — has left us with little alternative but to oppose his confirmation because of his extreme views on important civil rights and constitutional issues.

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.

As a judge on the U.S. District Court in Mississippi, Pickering has a record of hostility toward the enforcement of federal civil rights laws. For example, during his time on the bench, 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, calling the doctrine “obtrusive” and something that legislatures have reluctantly learned they “must live with.” See Fairley v. Forrest County, 814 F.Supp. 1327 (S.D. Miss. 1993).

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. Nonetheless, in Bryant v. Lawrence County, Miss., 814 F.Supp. 1346, 1351 (S.D. Miss. 1993), Pickering referred to the creation of majority-minority districts as “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.” Id., 876 F.Supp. 122, 127 (S.D. Miss. 1995). Judge Pickering’s rulings and opinions in these cases raise grave concerns about his dedication to securing constitutionally protected voting rights and fairness in the electoral system.

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. Foxworth v. Merchants Co., No. 2:95CV278PG (S.D. Miss., July 9, 1996) (slip op. at 8-9). In two cases dismissing claims of race discrimination in employment, Pickering used identical language striking a similar theme. He wrote in both that “this case has all the hallmarks of a case that is filed simply because an adverse employment decision was made in regard to a protected minority” and that the courts “are not super personnel managers charged with second guessing every employment decision made regarding minorities.” See Seeley v. City of Hattiesburg, No.2:96-CV-327PG (S.D. Miss., Feb. 17, 1998) (slip op. at 12); Johnson v. South Mississippi Home Health, No.2:95-CV-367PG (S.D. Miss., Sept. 4, 1996) (slip op. at 10).

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.

In an egregious example of Judge Pickering’s record of undermining the enforcement of federal civil rights protections, while presiding over a federal hate crime prosecution, Pickering went to extraordinary lengths to reduce a mandatory jail sentence for a convicted cross burner. In this case, two men and a juvenile were charged with burning an eight-foot cross on the lawn of an interracial couple. The juvenile and one of the men, described as borderline mentally retarded, pled guilty and received reduced sentences. The third, described by the Justice Department lawyers as the ringleader, refused to plead and was convicted after trial. In a shocking and ethically questionable move, Judge Pickering tried to pressure the federal prosecutors, through ex parte communications with a high-ranking Justice Department official, to drop the charge that carried a mandatory minimum 5-year sentence, in order to allow for a shorter sentence for the convicted cross-burner. A Justice Department letter released after Pickering’s February 7 Judiciary Committee hearing revealed a series of “off-the-record” efforts by Pickering to pursue his complaints, including a direct phone call by him to the home of one of the prosecutors.

In addition to concerns regarding why Judge Pickering decided to take such extraordinary steps to lobby for a reduced sentence for a convicted cross-burner, this conduct also raises serious questions about the ethics of Pickering’s behavior, including whether he violated Rule 3.A.4 of the Code of Conduct for U.S. Judges, which specifically forbids ex parte contacts between a judge and attorneys for one side of a case about that case.

Finally, we remain 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.

When taken together, these immoderate positions and tendency toward conservative judicial activism disqualify Judge Pickering from elevation to any federal court of appeal, much less the important Fifth Circuit, which has the largest percentage of African-Americans and Hispanics of any federal circuit court in the country. The Fifth Circuit also has, in recent years, become one of the two most conservative federal circuit courts in the country and has issued many extreme anti-civil rights rulings. Given this dynamic, it is crucial that any new appointee to the Fifth Circuit be a jurist who will have a moderating influence on the court and who will support vigorous enforcement of federal civil rights laws, and respect the rule of law and jud