President Bush's nomination of Charles Pickering to the U.S. Fifth Circuit Court of Appeals will probably be defeated this week in the Senate Judiciary Committee, but it is likely only a prelude to nastier fights over judicial nominations in the future. With an NAACP director saying the nomination "opens a gateway of horror" and Sen. Orrin Hatch, R-Utah, countering by accusing "extreme left Washington special-interest groups" of engaging in a "lynching," the nomination debate is clearly no longer about Pickering's qualifications.
Instead, it's about which side can best take advantage of the country's troubled racial history. Which side has played the race card to the greatest effect? You be the judge.
But first, a recap. The concerns over Pickering's qualifications date back to 1959 when, as a law student at the University of Mississippi, he wrote a note for the law review suggesting methods to make the state's law banning interracial marriage less vulnerable to legal challenges. Conservative supporters have described that as a purely academic exercise by a much younger man, while liberal critics have described it as the beginning of a pattern. Critics also point to other racially charged moments in his past, such as his connection to the Mississippi Sovereignty Commission, a state agency that worked to maintain segregation. When he was nominated to be a District Court judge in 1990, Pickering testified that he had no connection to the commission -- but it was later revealed that he had once asked an official at the agency to keep him informed of a labor dispute in his hometown. Again, conservatives paint this as incidental, liberals as symptomatic.
His record as a judge and state senator has also come under fire, with liberals angry at his efforts to curtail federal jurisdiction over voting districts to maximize minority representation and at his opposition to abortion, including support for a constitutional convention that would have proposed an amendment to ban abortion. Furthermore, on the bench, Pickering's decisions have been reversed 15 times by the Circuit Court, which critics see as evidence of his lack of allegiance to established law. In addition, his ethics have come into question in a case where Pickering allegedly inappropriately pressured the Justice Department to seek a lighter sentence against a man convicted of burning a cross. He also took the unorthodox step of asking lawyers who argue in his court to write letters of support on his behalf, and even read some of them before forwarding them on to the Justice Department.
Many of these issues raise unique questions about what kind of issues should be used to evaluate a nominee to the federal bench. But a rational conversation is anathema to many of the partisans involved.
Many liberal groups opposed to Pickerings nomination have employed emotional rhetoric that goes beyond any reasonable response to even the harshest interpretation of the facts. The key idea in this attack has been that Pickering will essentially take the country back in time. Nan Aaron, president of the liberal Alliance for Justice, said Pickering "will turn back the clock on progress that Americans have come to take for granted." Kim Gandy, president of the National Organization for Women, echoed this exact phrase while commenting on the Pickering nomination: "We need judges committed to justice for women, not ideologues dedicated to turning back the clock." And Kathy England, a member of the NAACPs board of directors, stated, "This nomination represents retrogression on civil rights issues and opens a gateway of horror in our own backyard."
Pickering is on record as having opposed key issues for liberals, but the notion that he will "turn back the clock" seems designed to bring up images of segregation and other highly charged issues from Americas history. This purely emotional appeal oversimplifies both Pickerings record and the impact he could have as an appeals court judge. It also allows liberals to vaguely associate Pickering with wrenching moments from the past without directly accusing him of supporting retrograde views today.
Others, however, have gone even further beyond the pale. Democratic National Committee Chairman Terry McAuliffe, for instance, took Pickerings conservative record as evidence of sinister motives by the Bush administration. "By nominating Pickering to a Court that presides over a region heavily populated with minorities," he stated, "Bush is attempting to disenfranchise this community." The word "disenfranchise" -- a heavily loaded term given the history of minorities right to vote -- unfairly imputes an outrageous motivation to Bush based solely on the evidence of this nomination.
Given these emotional appeals and over-the-top rhetoric, one would certainly expect conservatives to condemn the liberal criticisms. Much of the rhetoric from supporters of Pickering, however, has been just as irrational in its response, including unfounded race-based attacks on his critics.
To a large extent, the conservative defense of Pickering comes from people who know him in Mississippi and cite his support for the rights of minorities. Pickering supporters then use this description, which ignores legitimate criticisms of his record, to justify jargon-filled attacks on the motives of opponents. A White House source told National Review Online, for instance, that Pickering is the victim of "character assassination." Richard Land, president of the Southern Baptist Ethic and Religious Liberty Commission, described the opposition to Pickering as a "despicable smear campaign and character assassination." CNN's Tucker Carlson even brought up a name that has become synonymous with character assassination, saying, "just to trot out this, 'Oh, he's a racist extremist,' it is so Bork-like. It's so tired."
Conservatives have also sometimes focused on the controversial nature of the liberal groups involved in the Pickering opposition rather than the substance of what they have been saying. The Wall Street Journal devoted an entire editorial to this issue last month, accusing People for the American Way President Ralph Neas of being the "real chairman" of the Senate Judiciary Committee hearings on Pickering. "He gives them their attack themes, and they then repeat them to skewer some hapless nominee...", the Journal wrote, also accusing Neas and his "Democratic followers" of not recognizing the Constitution. Hatch also made this accusation in a Judiciary Committee hearing when he said opposition to Pickering was "the product of engineering by extreme left Washington special-interest groups who are out of touch with the mainstream and have a political ax to grind."
While some liberals hinted at Pickering being a racist and sexist, conservatives have only worsened the situation by mechanically reversing these attacks into smears against liberals. Instead of criticizing liberals for hinting at racism, they instead describe the attacks against Pickering with racially inflammatory terms. Hatch has already been condemned by some for doing just this when he described the opposition to Pickering as a "lynching" (the conservative group Concerned Women for America used the same language).The Wall Street Journal also engaged in it in a broadside against liberal opponents of Pickering: "Mr. Neas and [NAACP Chairman] Julian Bond and their fellow liberals [are] the real heirs to Lester Maddox and Strom Thurmond and the Democrats who played the race card during the 1950s and 1960s. They're the new Dixiecrats." The worst example, however, came from Charles Evers, the brother of slain civil rights leader Medgar Evers, who compared the tactics of Pickering opponents to those of white segregationists from the past: "I'm not going to sit here and allow black bigots to do the same things to the good folks in Mississippi, what white bigots did a few years ago."
As the use of the word "Bork" in the current debate and the echoes of Clarence Thomas with the word "lynching" demonstrate, the Pickering rhetoric is just the latest example in a disturbing trend. Discussions of judicial nominees' records and behavior quickly devolve into inflammatory attacks that stimulate emotions, but add nothing to the debate except acrimony.