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Race and civil rights have emerged as the flashpoints in the nomination of Mississippi’s Charles Pickering Sr. for a federal appeals judgeship, but they were not the only subjects of a grueling four-and-a-half hour Senate hearing last week. On two occasions, senators raised issues of judicial ethics that may end up posing unexpected difficulties for Pickering, even though the more volatile questions are what prompted senators to screen Pickering for a second time. The first ethics issue arose more than halfway through the session in a packed Senate hearing room on Feb. 7. Judiciary Committee members and the 5th U.S. Circuit Court of Appeals nominee had been delving into the history of race relations in Mississippi in the 1960s and 1970s when Sen. John Edwards, D-N.C., shifted the topic to a more recent event. He brought up a 1994 case in which three young men were charged with burning a cross in the yard of a mixed-race couple. Pickering, the federal trial judge presiding over the case, went out of his way to seek a more lenient sentence for one of the three, even contacting Frank Hunger, a friend who then held a high post at Main Justice. Before trial, prosecutors reached plea agreements with two of the defendants, Mickey Herbert Thomas, 25, and a 17-year-old who was charged as a juvenile. Both received sentences of supervised release without prison time. Daniel Swan, 20, alone went to trial and was convicted on three counts. The government sought a prison term under the U.S. Sentencing Guidelines of 7 1/2 years. Before he sentenced Swan, Pickering wrote a sharply worded order directing prosecutors to file a response detailing the sentence meted out in all cross-burning prosecutions across the nation and to call the case to the attention of then-Attorney General Janet Reno. Many federal judges have bristled at the guidelines or questioned prosecutors’ acceptance of plea bargains in order to secure the conviction of other, arguably less culpable, defendants. But Pickering did more than that. Frustrated with the “gross disparity in sentence recommended by the government,” he called Hunger, a Mississippian and a personal friend, to try to get the attention of Main Justice. Hunger was then assistant attorney general for the Civil Division. At the hearing, Edwards questioned both Pickering’s sensitivity to crimes of racial bias and the propriety of the judge’s efforts to intervene. “Why did you take this action?” the senator asked. “And what authority did you have to do it as a judge?” Pickering replied that during the trial, he learned that the juvenile was the ringleader in the crime, had been known to harbor racist views, and had previously fired a shot into the couple’s home. Accordingly, the sentence facing Swan, Pickering believed, “was the most serious sentencing disparity I had ever seen.” In a Feb. 6, 2002, letter to Judiciary Chairman Patrick Leahy, D-Vt., Pickering said Hunger turned down his entreaty because he didn’t supervise the Civil Rights Division, which brought the case. Prosecutors did end up dropping one count, and Pickering sentenced Swan to 27 months. The incident triggered considerable discussion at the Senate hearing. “Cross burning is very much of concern to all of us on this panel,” said Sen. Charles Schumer, D-N.Y. “It is a dagger at the heart of our nation. When someone burns a cross, it’s aimed at all of America.” Pickering responded that he “did not minimize the significance of cross burning. It is a heinous crime.” In fact, he said, he was “outraged” that the juvenile, who had taken the lead in the cross burning, had not gotten a single day in prison. Edwards also asked Pickering whether the contact with Hunger, made without the knowledge of the line prosecutors or Swan’s lawyer, was an improper ex parte communication. Canon 3(a)(4) of the Code of Conduct for United States Judges provides that a federal judge should “neither initiate nor consider ex parte communications on the merits … of a pending or impending proceeding.” Pickering said that he did not think his contact was ex parte since Hunger “was not a lawyer on the case, and my contact did not benefit either side.” However, judicial ethics expert Steven Lubet of Northwestern University School of Law says that while it is not necessarily a major infraction, a judge “just shouldn’t talk to outside experts — witnesses, relatives, anyone.” Hunger, now a partner at Washington, D.C.-based Covington & Burling, did not respond to calls seeking comment. Another ethics issue that arose at the hearing was brought up by Sen. Russ Feingold, D-Wis. “You have an impressive outpouring of support from Mississippians,” Feingold told Pickering, pointing out that 18 supportive letters were faxed to the committee from Pickering’s chambers on Oct. 25 or 26, 2001, just a week after the judiciary panel held its first hearing on Pickering’s nomination. Feingold asked whether Pickering had skirted an ethical line by soliciting endorsements from lawyers who had appeared before him or might do so in the future. Pickering replied that he learned just before his first hearing of brewing opposition to his nomination. Afterward, he realized he needed support, so he quickly “contacted some people and asked them to write, if they were so inclined.” He said he put no pressure on anyone to boost his candidacy and “forwarded all the letters I received.” Lubet says that although there’s no direct precedent, this conduct could involve the problem of “unintentional coercion” that arises when judges solicit lawyers for charitable contributions. SOVEREIGN STATE Much was said, before and during the hearing, about Pickering’s contact in the early 1970s with the Mississippi State Sovereignty Commission, a notorious state government body set up in 1956 to preserve segregation and infiltrate civil rights groups. The commission’s files, which were opened to the public in 1998, include one document with one reference to Pickering. It is a three-page memorandum from investigator Edgar Fortenberry to W. Webb Burke, head of the commission. Pickering, then a state senator, was quoted as saying he was “very interested” in alleged infiltration of a labor union at the Masonite Corp. plant in Laurel, Miss., in his district. Pickering “requested to be advised of developments” regarding the union. Liberal groups have made much of the fact that Pickering is mentioned in the files of the racist group and that he was evidently seeking its cooperation in monitoring labor unrest. Pickering’s supporters have replied that in view of the nominee’s known opposition to Ku Klux Klan involvement in union activity in Laurel, the KKK was presumably the subject of the memo. The document itself tells a slightly different story. The alleged infiltration that the Sovereignty Commission was concerned about was not from the Klan — that would be an unlikely subject of the commission’s concern — but from the Southern Conference Educational Fund Inc. The SCEF was a pro-civil rights group that organized blacks and whites in the South from 1948 through 1974. It was viewed by some as a radical left group. In his appearance before the Senate panel, Pickering did not mention the SCEF. He explained he contacted the commission because in view of the union’s history of Klan involvement, “if anyone had mentioned the possibility of there being more union organizing which might bring violence … I would have requested to have been kept apprised of any information that would indicate that violence might erupt again.” In their written materials, the liberal groups did not mention the SCEF. BENCH POSTURES The atmosphere at the Pickering hearings was in many ways reminiscent of a battle over a Supreme Court nomination. There was a line of citizens snaking out the door on the second floor of the Hart building, staffers for members and interest groups busily passing out documents, and an unusually full complement of reporters. The hearing also featured the sweeping rhetoric that senators use in framing a single legislative battle as a fight for the future of the country. “The record of Charles Pickering can be expressed in two words: moral courage,” Sen. Mitch McConnell of Kentucky said in his opening statement for the Republican minority. “When victims of racial injustice looked for justice, they found it in one man, Jones County Attorney Charles Pickering.” Sen. Orrin Hatch, R-Utah, accused liberal activists of “an apparent vicious strategy of Borking any judicial nominee who happens to disagree” with them. Sen. Dianne Feinstein, D-Calif., was not to be outdone. “For many of us, this 5th Circuit seat is as important as a Supreme Court seat,” Feinstein said. “The 5th Circuit once served as a trailblazer for the protection of individual rights, voting rights, employment discrimination. So this becomes a pivotal position for people who have fought for these rights for decades.” Until there is a Supreme Court nomination, which is not in the offing, that will have to do.

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