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As a young lawyer in Jones County, Miss., in the 1960s, Charles Pickering Sr. helped put Klansmen in jail. In the early 1990s, when preservationists and black activists clashed over a “colored only” sign in a county courthouse, Pickering helped craft a compromise that the black community applauded. And as a federal trial judge, Pickering has tried to keep young blacks out of the criminal justice system, convening a group of local civic leaders to try to solve the problem. When the Senate Judiciary Committee meets Feb. 7 to consider Pickering’s nomination to the 5th U.S. Circuit Court of Appeals, his liberal opponents won’t be focusing on these aspects of the nominee’s record. Liberal activists have combed through the decisions that Pickering has written in 11 years as a U.S. district judge in Hattiesburg, Miss., and have concluded that Pickering’s confirmation “poses a grave danger to our rights and liberties.” But a Legal Times analysis of Pickering’s important rulings, as well as interviews with community leaders in his home state, offers an alternate view to the liberals’ conclusions that Pickering is racially insensitive and indifferent to constitutional rights. As a potentially explosive showdown approaches, the record indicates that the judge is a more complicated individual than the foe of civil rights that the liberals have depicted in their position papers. This will be the second go-round on Pickering. A barely noticed Judiciary Committee hearing took place Oct. 18 during the anthrax scare, five months after Pickering’s nomination. At the time, hundreds of the judge’s unpublished rulings were not available, and Democrats reserved the right to call him back. The campaign against Pickering’s nomination has been led by women’s rights, civil rights, and abortion rights groups. They have focused on the judge’s consistently conservative record on employment discrimination, voting rights, abortion, and criminal law. According to his opponents, Pickering often “injects his personal opinions” and “bias” into cases he handles. On civil rights, the groups regard him, in the words of Alliance for Justice leader Marcia Kuntz, as “a throwback to the days of the segregated South.” But a look at the 64-year-old Pickering’s record shows that although he has often ruled against civil rights claims, the facts of the cases have often tilted strongly against the litigants claiming discrimination. And although in some voting rights cases he has doubted the correctness of relevant Supreme Court decisions, he has followed the law in making his rulings. One thing is clear: Pickering often voices his personal views on hot-button social issues in his opinions-even when such discussion isn’t strictly necessary. These dicta have made him an easy target for liberal opponents. BETWEEN RACES Pickering declines comment through a White House spokesman. Several people — both black and white — who know Pickering say the nominee has worked to achieve racial harmony in a county that for decades was sorely lacking in that quality. “He’s conservative, no question about that,” says Susan Vincent, the mayor of Laurel, Miss., a town of 19,000 that is the county seat of Jones County, where Pickering grew up in the 1940s and 1950s. “He is also a very fair person.” “All his life he has been a leader in efforts to achieve equity and human rights,” says Vincent, who is white and describes herself as a political moderate. “To say that he is in any way racially biased is unjust.” Says Johnny Magee, a Laurel bookstore owner and city council member who is black: “Pickering is not perfect — no one is — but he has courage. He was involved as a county prosecutor in fighting against the Ku Klux Klan and helped put Klansmen behind bars. That was something you just didn’t do in Jones County in the 1960s.” Magee says his own stepson came before Pickering to be sentenced on drug charges. The young man “is currently serving time, and he deserves it,” says Magee. “But Pickering dealt with him completely fairly.” In fact, Magee says that Pickering, sometime after he took the bench in 1990, called together the county’s civic leaders to develop after-school programs “to keep black males from coming into his court on criminal charges.” Thaddeus Edmonson, the president of Laurel’s city council and a leader of the black community there, says Pickering “is very sensitive on racial issues and always makes sure that they are safeguarded in his court.” Edmonson, a newspaper owner who was president of the local chapter of the National Association for the Advancement of Colored People in 1995 and 1996, recalls that about a decade ago, black citizens were upset about seeing the words “white” and “colored” engraved next to water fountains at the county courthouse in Ellisville, Miss., near Laurel. Segregation, of course, hadn’t existed for a quarter century, but the words were still carved into the courthouse wall. Historians wanted to keep them on the building as a record of bygone times. Pickering — along with Edmonson and Vincent — served on a biracial commission that decided to retain the dual fountains, but cover the offending words with plaques. “He understood that those things were offensive and had to be removed,” Edmonson says. Carey Varnado, a Hattiesburg litigator, says that, as a state senator in the 1960s, Pickering testified in court that a Klansman “was known to have a bad reputation in the community. That required a great deal of personal courage for someone with four young children. “It’s unfortunate that some members of my party are making a political football out of this nomination,” says Varnado, a white Democrat who thinks liberal groups are deliberately picking a fight with Senate Minority Leader Trent Lott, a Mississippian who is a longtime friend of Pickering’s. THE RECORD SPEAKS The liberal organizations, such as People for the American Way, the Alliance for Justice, and the National Abortion and Reproductive Rights Action League (NARAL), say they are simply reading the record of Pickering’s rulings as a district judge. There is little question, based on Pickering’s stances as a legislator, that he is personally anti-abortion, although he has never been called upon to rule on an abortion case. As a Mississippi state senator in the 1970s, Pickering led the effort to approve an anti-abortion plank in the 1976 Republican platform. The nominee testified at his earlier hearing that he would consider it his “duty as an appellate … judge to follow” Roe v. Wade. Pickering has testified that he has been reversed or sharply criticized by the 5th Circuit 28 times, although full information is not yet available about all of Pickering’s 1,000 unpublished rulings, and it has not been shown that Pickering was reversed more often than other district judges in his circuit. On the civil rights front, liberals point to several employment discrimination cases that Pickering decided. In Foxworth, et al. v. Merchants Co., an unpublished opinion from 1996, two blacks who owned a grocery store sued a supplier under the civil rights laws because the supplier stopped extending credit to them. Pickering ruled in favor of the supplier. The liberal groups highlighted the “harsh” language that Pickering used: “When an adverse action is taken affecting one covered by [civil rights] 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.” What the liberals did not point out is that the supplier canceled the credit terms after both store owners were arrested and indicted for allegedly threatening to murder a federal official. (They were later acquitted.) Pickering found that these serious criminal charges represented a “valid nondiscriminatory reason” for the supplier’s business judgment to cancel the credit arrangement. The groups also omit from their position paper Pickering’s comment in the same case: “America’s basic racial problem, if it is to be solved, must be solved by men and women of goodwill, both black and white. There must be understanding and effort on the part of both races and there must be acceptance of responsibility for individual actions.” In Seeley v. City of Hattiesburg, a 1998 case, a black firefighter was fired and claimed a civil rights violation. Pickering granted summary judgment against him, finding that he was fired for insubordination and for repeatedly showing up late at work. There was “not one iota” of evidence of racial bias, he ruled. People for the American Way criticized Pickering for writing in Seeley that “the fact that a black employee is terminated does not automatically indicate discrimination. … 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.” Pickering also wrote that “cases such as this case make it more difficult to guarantee that no American is discriminated against because of race or color. If employers are confronted with a frivolous lawsuit every time they discharge a person who is a protected minority, they will become calloused and cynical and less likely to be sensitive to real discrimination.” Elliot Mincberg, People for the American Way’s legal director, replies, “What we are concerned about is not the results in the cases, but the fact that he goes out of his way to disparage the plaintiffs. When he writes that this case is an unwanted effect of the anti-discrimination laws, this reflects a hostile attitude and sends a message to future plaintiffs. That’s very troubling to us. “It’s insensitivity to civil rights principles, not deliberate racism,” says Mincberg. “But that is particularly troubling for an appellate judge. There is not a single smoking gun. This is a mosaic.” Mincberg also points out that the national and state NAACP have come out against Pickering, as has the Magnolia Bar Association, a predominantly black Mississippi bar group. In the voting rights area, Pickering’s opponents point to his decisions on redistricting and similar issues. Regarding Fairley v. Forrest County, a 1993 ruling, liberals criticize Pickering for including in his opinion a lengthy digression on the history of the one-person/one-vote doctrine in the Supreme Court and for casting doubt on the doctrine, which he said could at times be applied too rigidly. However, Pickering concluded that as a district judge, he was “bound to follow the precedents established by prior controlling judicial decisions.” The actual holding in the case — which is supported by considerable precedent — was that a Mississippi county did not have to hold special elections to remedy racial deviations in districts used to elect local officials. Adam Shah, a lawyer at the Alliance for Justice, says that when there is a per se violation of the Voting Rights Act, which Pickering found, “the normal remedy is to have special elections, which he refused to order.” The case was not appealed to the 5th Circuit.

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