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“We have to look from the perspective of that time, not of 2002. It was politics, the politics of that time. Things were changing drastically at that time. I regret those statements and would not make them today.” — Judge Charles Pickering Sr. “The past is never dead. It’s not even past.” — William Faulkner I suspect that Charles Pickering, like all other good Mississippians, knows his Faulkner. Pickering is the embattled federal district judge whose ambitions to serve on the 5th U.S. Circuit Court of Appeals are probably about to be thwarted — because of the past. The judge hails from Mississippi’s real-life Jones County, rather than from Faulkner’s fictional Yoknapatawpha County. But he must instinctively understand, as did his literary co-statesman, that ghosts are not mere shadows, and that they do indeed live among us. With Pickering, the skeleton never in the closet is this: He is a white man who came of age in Mississippi at the very moment the South violently erupted against racial integration. He could hardly have picked a more contentious time to start his education and career. Consider: The Supreme Court decided Brown v. Board of Education in 1954, the year before Pickering started college. He graduated from law school at the University of Mississippi, first in his class, in 1961, the same year that James Meredith first attempted to integrate that campus. And Pickering was not a mere bystander in that racial conflict. As a student, he wrote a law review article suggesting language that the Mississippi state legislature later adopted to firm up a law prohibiting interracial marriages. He left the state Democratic Party in 1964, after the national party at its presidential convention refused to seat only the all-white slate of delegates that Pickering supported. As a state senator, he voted in 1972 and 1973 to fund a notorious state agency whose mission was to quash integration in the state, and also had at least some direct contact with the agency. His supporters might claim that these were isolated incidents. But they were not. They were part of the larger fabric of segregation in the Jim Crow South. The Supreme Court served notice to the nation in Brown that this system would not stand. Yet, rather than wholeheartedly join in that change, Pickering acted to perpetuate a system that deprived millions of black Americans of their life and liberty because of their skin color. The system was racist. And so were Pickering’s actions in support of it. Of course, he was far from alone. As he said at the Senate hearing, his actions and statements were common “politics, the politics of that time.” But that is not an excuse. Some white Southerners did fight for equal rights for blacks, at great personal expense. Among the most prominent were Justice Hugo Black (from Alabama), 5th Circuit Judges John Minor Wisdom (from Louisiana) and Elbert Tuttle (from Georgia), and U.S. District Judge Frank Johnson (from Alabama). But the fact is they were rare heroes. And as admirable as their actions were, they were not the standard that most white Southerners lived by during those times. So we can applaud the courageous few saints. But does that mean everyone else who acquiesced in the evil should be treated as sinners? Do we punish them? Condemn them? Ignore them? Embrace them? Or all of the above? PAST SINS How to treat this generation of Southern whites is the question underlying the Senate hearings for Pickering. And it is also a question that has bedeviled the confirmations of other judges from that time and place. Not surprisingly, our reactions have been varied. After the Senate confirmed Hugo Black for the Supreme Court in 1937, the media broke the story that he had, for two years starting in 1923, belonged to the Ku Klux Klan. The news caused an uproar, which he tried to squelch in a national radio address just days before taking the oath of office. Clement Haynsworth Jr. of South Carolina, whom Richard Nixon nominated for the high court, was rejected by the Senate in part due to allegations that he was a “laundered segregationist.” Nixon’s subsequent nominee for the Court, G. Harrold Carswell from Florida, was also charged with being a racist and was also defeated. And former Justice Lewis Powell Jr. of Virginia, before winning (almost unanimous) confirmation to the Court, faced harsh criticism about his role as chairman of the Richmond School Board in the years just after Brown, when the board did virtually nothing to integrate the city’s public schools. All these controversies were triggered by nominations to the Supreme Court. That makes sense, since Supreme Court nominations of white Southerners brought national attention to regional history. And given the controversy that these nominees triggered, it’s not surprising that no white Southerner has been nominated to the high court since Powell — for any such nominee would have had to come from the tail end of that same generation. For judicial appointments within the region, though, the population and the Senate have taken a more flexible and practical view toward the past. There have surely been some controversies. But equally surely, any number of members of the segregationist generation — whose own biographies did not shine like Judge Wisdom’s or Judge Johnson’s — have served on lower federal courts in the South. Recently, as judicial nominations have become more contentious, the national spotlight has shifted onto lower court nominations — and onto Pickering. FACING HISTORY The United States, of course, is not the only nation that has had to grapple with the toxic debris of a racist past. South Africa has its truth commissions — which offer immunity from prosecution to those who tell the full story of how they used apartheid to oppress. Those granted immunity live out their lives branded but free. And Germany has had its holdovers from the Third Reich, even on the judiciary. As German legal scholar Ingo M�ller discusses in his 1991 book, “Hitler’s Justice,” judges appointed or retained by the Nazis served on the bench for decades after Germany’s surrender. And (as Judge Richard Posner wrote in a review of the book), “The spirit of Nazism survived — much diminished, to be sure — in the postwar German courts.” Isn’t there a similar risk with American judges who hail from a Jim Crow past? That’s the fear about Pickering — that he might not have dumped all his old ideas in the dustbin of history. As a trial judge, Pickering has not been generally sympathetic to civil rights claims. And in one case, he exercised the full power of his office to lobby the Justice Department to lessen the sentence against — of all the defendants he could have chosen! — a man convicted of burning a cross in the yard of an interracial couple. There are, to be sure, reasonable legal arguments for why any particular plaintiff should or should not win. But we must ask what makes a judge sway one way or another in those myriad instances when the law is not clear. Still, life is complicated — and Pickering’s record is not, so to speak, black and white. His defenders point out that, as a prosecutor in 1967, he testified against the head of the Ku Klux Klan; that in 1976, as chair of the state Republican Party, he hired the state party’s first black staffer; that as a lawyer, he zealously and successfully defended a black client accused of armed robbery of a white girl; and that as a judge, he exercised his discretion to overturn a verdict against an interracial married couple whom he felt the jury had been prejudiced against. Our experience with the Supreme Court also shows that white Southerners — Powell and Black, at least — have proved to be sensitive to racial issues that come before them on the bench. Black, of course, was not the only justice who signed Brown, but in internal Court debates preceding the opinion he emerged as an early champion of desegregation. Powell, though perhaps more subtle in his advocacy of civil rights, nonetheless demonstrated an ability to empathize with the plight of blacks in America and to deploy the law to help remedy their situation. His still-controversial concurrence upholding affirmative action programs in schools in University of California Regents v. Bakke (1978) illustrates this most clearly. THE HARD TRUTH So perhaps there’s something else that Pickering’s critics fear — something besides his past actions, which are varied and which might not predict his future decisions. What they might well be flinching from, just a little bit, is our past. Because though it was white Southerners who most vividly subjugated blacks, America as a nation has a shameful history of racism. And while white Southerners of the segregationist era seem to personify that history, they were not the only ones who did little or nothing to stop it. Pickering then is an embarrassment — not because he is so far outside the mainstream, but because he is uncomfortably close to it. For what it’s worth, the aging of his generation probably means that Pickering will be the last judicial nominee called to task in the Senate to explain his participation in American segregation. But that doesn’t mean that we can solve our racial problems just by waiting for the henchmen to fade away. We all, even still, live in Yoknapatawpha County. And the ghosts here don’t die. Evan P. Schultz is associate opinion editor at Legal Times . He can be reached at [email protected]

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