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CounterPunch
January
8, 2003
Under the White
Robe:
The Ghosts of Pickering's Past
By JEFFREY ST. CLAIR
EDITOR'S NOTE: Trent Lott may have been ushered aside by Karl
Rove and the relentlessly ambitious Bill Frist, but his legacy
will apparently thrive for many more years on the federal bench
in the noxious form of Charles Pickering. On January 7, 2003,
the Bush White House announced that it was resubmitting Pickering's
nomination to the Fifth Circuit Court of Appeals for approval
by the Republican-controlled senate. A senate staffer told CounterPunch
that the renomination of Pickering was part of the deal made
with Lott to ensure that he would quietly give up his quest to
resume his position as Senate Majority leader. In honor of this
strange twist of events, we reprint the following story about
Lott and Pickering from the March 1-15, 2002 print edition of
CounterPunch. AC / JSC
Like all federal judges Charles Pickering, Bush's
nominee to the Fifth Circuit Court of Appeals, owes his good
fortune to at least one United States senator. A seat on the
federal bench is largely a matter of privilege for that state's
senator. Pickering's prime benefactor has been Trent Lott, the
Mississippi Republican and current minority leader.
Pickering hails from Laurel, Mississippi.
He attended the University of Mississippi with Lott, and served
in the all-white Mississippi state senate from 1972 through 1980,
where he and Lott become political buddies. He also served as
chair of the Mississippi Republican Party during the late 1970s.
After making a nice living in private
practice defending corporate polluters and tobacco companies,
in 1990 Lott convinced George Bush the First to nominate Pickering
to the federal bench in the Southern District of Mississippi.
Now Lott has convinced George Bush the Second to elevate Pickering
to the Fifth Circuit Court, the most reactionary court in the
federal system.
Pickering's appalling ideas on race,
state's rights, women, and workers are largely an open book.
And there's quite a paper trail, starting with a 1960 law review
article for the University of Mississippi Law School. In a piece
titled "Criminal Law Miscegenation/Incest" Pickering
lamented that the Mississippi's law criminalizing marriages between
blacks and whites wasn't being enforced strictly enough. He took
it upon himself to draft a plan to beef up the statute and toughen
the sanctions for sex between blacks and whites. Two months after
the law review article appeared in print, the Mississippi legislature
turned the Pickering plan into law.
As a legislator, Pickering demonstrated
an unremitting hostility for even the most cautious steps toward
giving blacks any kind of foothold in the state's political system.
In a senate floor speech in 1975, Pickering denounced the Voting
Rights Act as an attack on state sovereignty. He backed reapportionment
plans that deliberately submerged black voter strongholds into
white dominated districts. And he supported an "open primary"
plan for the state, which the Department of Justice said was
unconstitutional and the three black members of the Mississippi
House of Representatives characterized as an attempt by old-line
racists to keep black candidates from winning general elections.
Pickering has long denied any association
with the vile Mississippi's Sovereignty Commission, a kind of
secret police force which worked to keep Mississippi segregated
in the wake of the Brown v. Board of Education ruling. The Sovereignty
Commission, often employing KKK thugs, spied on civil rights
organizers, politicians, preachers and rockers (including B.B.
King, Elvis Presley, B.B. King, James Brown and the Rolling Stones).
They acted like a racist COINTELPRO operation, paying their snitches
$100 to $150 for information, infiltrating civil rights groups,
and deploying a robust arsenal of dirty tricks and smear tactics.
The Commission also helped to cover up attacks on blacks and
civil rights workers by the KKK and other vigilantes.
It's scarcely surprising that Pickering
would want to maintain a healthy bit of distance between himself
and this state-sanctioned goon squad. But he may have been so
anxious to hide from his past that he perjured himself. In his
1990 testimony before the Senate judiciary committee, Pickering
emphatically denied any association with the Sovereignty Commission.
"I never had any contact with that
agency and I had disagreement with the purposes and the methods
and some of the approaches that they tookLet me further point
out that the Commission had, in effect, been abolished for a
number of years. During the entire time that I was in the senate,
I do not recall really that commission doing anything."
He was being disingenuous on nearly every
point. Far from being mothballed, the Commission was regularly
coming to the legislature for funds and Pickering was only to
happy to oblige, voting to appropriate money for the segregationist
snoops in both 1972 and 1973. The governor of Mississippi vetoed
state funding for the Commission in 1973, but the plug wasn't
officially pulled on it until 1977.
Back in 1990, Pickering may have felt
secure that his secret ties to the Sovereignty Commission would
never see the light of day. After all, as a senator he had twice
voted to keep the records of the Commission sealed from public
inspection until 2027. But in 1998, after protracted litigation,
the ACLU finally won a lawsuit opening what remained of the files
(much had been lost or destroyed) for public review.
Late last year a review of the Commission's
files turned up an astounding memo written by one of the Commission's
investigators detailing a request made by Pickering in 1972,
while he was a senator, for the snoops to develop a dossier on
a union that had launched a strike against the largest employer
in Laurel, Mississippi, Pickering's hometown. He also asked the
Commission to pass along to him background information on the
strike's leading organizer.
In light of these documents, Pickering's
denials amount to willful distortions if not to perjury.
The wonder is that Pickering's lifelong
association with racists and his own ante-bellum views on blacks
and civil rights were not thrown back in his face in 1990 when
Pickering appeared before the senate to lobby for his seat on
the federal bench. At the time, the Democrats controlled the
senate and mighty Joe Biden (and Ted Kennedy) ruled the Judiciary
Committee. They let Pickering slide through with barely a thought.
Here we are presented once again with the noxious consequences
of senate comity, wherein supposed champions of civil rights
such as Biden and Kennedy simply defer to the wishes of the likes
of Trent Lott in exchange for similar deference when it comes
to their own personal picks for federal judgeships. Apparently,
it doesn't matter if another full-blown racist dons federal robes
in southern Mississippi.
But Pickering has done plenty of damage
since he ascended to the federal bench, where his evident animus
toward blacks has surfaced again and again in his rulings and
opinions. In a case called Fairley v. Forrest County, Pickering
lashed out against the one-man/one-vote doctrine as "obtrusive".
In another case, Citizens Right to Vote v. Morgan, Pickering
characterized the Voting Rights Act as "an unnecessary intrusion"
of federal authority into matters that the states are "perfectly
capable of resolving." This is perverse legal reasoning
to say the least, since the federal role that Pickering is carping
about came about only after Mississippi's voting procedures had
been ruled repeatedly to be racist and unconstitutional.
Pickering has proved to be equally harsh
in his rulings in cases involving minorities suits over employment
discrimination. Indeed, Pickering has demonstrated an unrelenting
hostility toward the very idea of such claims. In a case known
as Seeley v. City of Hattiesburg, Pickering set forth an argument
that might even make Antonin Scalia cringe. In dismissing a claim
brought by a black worker, Pickering wrote that "the federal
courts must never become safe havens for employees who are in
a class protected from discrimination, but who in fact are employees
who are derelict in their duties."
The judge was even more frank in rejecting
a case involving credit discrimination. "This case demonstrates
one of the side effects resulting from anti-discrimination laws
and racial polarization. When an adverse action is taken affecting
one covered by such laws, there is a tendency on the part of
the person affected to spontaneously react that discrimination
caused the action. All of us have difficulty accepting the fact
that we sometimes create our own problems."
Even a cursory look at Pickering's rulings
reveals a judge who is at war with the very notion of federal
law and the very role of the court he seeks to join. Often Pickering
can't restrain himself from injecting personal diatribes into
his opinions that have little direct bearing on the case but
reveal the true nature of his reactionary legal agenda. Take
the bizarre case of Randolf v. Cervantes. In this case, a paranoid-schizophrenic
had been civilly committed to a state-run hospital. The deranged
woman somehow found a hypodermic needle in a trash can and ended
up injecting insulin into her eye. The woman's mother sued the
state and the hospital, charging that they had failed their court-ordered
duty to provide quality care for her daughter. Pickering swiftly
dismissed the suit and went on a tirade in his opinion against
any judge who might rule that the state should be held accountable.
He declared that such liberal judges were engaging in "judicial
pyramiding" and "reaching conclusion that [are] ludicrous."
He ended by saying that a judgement for the plaintiff would add
to a list of "things that has caused some to question whether
the law in many instances has lost touch with reality, reason
and common sense."
Of course, Charles Pickering is hardly
an aberration. The court to which he aspires is arguably the
most reactionary the nation has seen in decades and he would
certainly feel quite at home there. Of the 15 judges on the panel
only one is black, despite the fact that the Fifth Circuit covers
the most racially diverse circuit in the nation, with minorities
accounting for 44 percent of the population.
Moreover, the career of Pickering's patron,
Trent Lott, has followed a similarly dark trajectory. The scene
is Oxford, Mississippi September 1962. A federal court orders
the University of Mississippi to open its doors to James Meredith,
who would be the first known black student at the school. The
university and the state government refuse and vow to physically
prevent Meredith from enrolling in classes. Citizen militias
and Klan types converge on the campus carrying weapons. Days
of bloody rioting followed.
The Kennedy administration responds by
sending in federal troops to clear the way, although in one of
his more infamous acts Bobby Kennedy orders that the troops be
pre-segregated before they enter the state. More than 4,000 black
soldiers are pulled out of their normal troops. "The Kennedys
approved the segregation to avoid the political embarrassment
of having black troops with high-powered rifles patrolling the
streets of America's most segregated state, " William Doyle
writes in his excellent, though little noticed, book American
Insurrection: the Battle of Oxford Mississippi.
On the night of October 1, this white
federal strike force descends on the Sigma Nu fraternity house.
Frat boys had been particularly outspoken in their desire to
see the Oxford campus remain a whites-only school. Inside the
Sigma Nu house, the troops seize a cache of weapons, including
21 shotguns, a .22 rifle, a .30 rifle and a .22 Colt pistol.
The president of the fraternity is no other than Trent Lott.
Lott has never had to answer for his
role in the Oxford riots and there's no evidence that he's had
much of a change of heart. In 1992 Lott gave the keynote speech
at the annual gathering of the neo-segregationist Council of
Conservative Citizens. During his Lott praised as the group for
"standing for the right principles and the right philosophy".
Lott's kind words were recorded in an article in the group's
newsletter, The Citizen Informer, a name that suggests the old
Sovereignty Commission may not have been disbanded so much as
simply privatized.
The Citizens' Council hasn't gone away,
just gone online at http://www.cofcc.org. Shortly after Dan Pearl
was kidnapped and word began to spread that he might be dead,
the CCC posted an editorial on its website which suggested that
Pearl deserved his fate because he was a miscegenist (not to
mention a Jew): "Death by Multiculturalism: Daniel Pearl,
a Jewish Wall Street Journal reporter kidnapped last week by
Muslim activists, is pictured here with his mixed-race wife,
Marianne. Despite rumors of her husband's murder, Marianne remains
committed to racial and ethnic amalgamation. 'All my life, all
his life and our life together is just a big effort to try to
create dialogue between civilization[s],' she said. Remember,
'Diversity is our Strength!"
But it turns out that Lott is not Pickering's
only political fixer. Under withering questioning at his confirmation
hearing in February by Senator John Edwards, the North Carolina
Democrat and former trial lawyer, Pickering admitted that in
1994 he tried to convince an old friend in the Clinton Justice
Department to tell federal prosecutors to propose a more lenient
sentence for a defendant in a federal trial he was overseeing.
Now Pickering is not known for being
soft on crime. He regularly berates defendents and prisoners
seeking new trials with quotes from the Bible on the punitive
nature of Old Testament justice, routinely denies plaintiffs
access to trial transcripts and their requests for DNA tests
that might prove their innocence. In fact, Pickering has let
it be known that he believes in the habeas corpus doctrine applies
only to the "truly innocent".
But in this case Pickering took a unwontedly
merciful line. The government, using a standard formula under
the US Sentencing Guidelines, wanted Daniel Swann to spend to
spend seven years in prison. Pickering thought the sentence
was too harsh and that Swann should be released on supervised
parole. The man's crime: he burned a cross in the front yard
of a mixed-race couple in Mississippi.
The man Pickering called was one of Janet
Reno's top deputies, Frank Hunger, then head of the department's
civil division. Hunger and Pickering were old friends from the
days when Hunger was a Mississippi lawyer who specialized in
defending corporations against civil actions and tort claims.
Although Hunger's name popped up in a few stories here and there,
his political genealogy was not discussed. Frank Hunger is the
brother-in-law of Al Gore and has long been one of his closest
political confidants. As they say down in Mouseland, outside
Orlando, the South is a small, small world after all.
Jeffrey St. Clair can be reached at: stclair@counterpunch.org
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