Last Sunday, CBS' "60 Minutes" may have provided the first chapter to a sequel to Eric Alterman's book "What Liberal Media?" with its puff piece on extremist Mississippi Judge Charles W. Pickering, Sr; a report that simply omitted the core of the case against Pickering's confirmation to the U.S. Court of Appeals for the Fifth Circuit and distorted the rest.
It is not the first press mischaracterization of a nominations fight, but it may be among the worst. Reporters routinely cover the judicial confirmation issue as though it were a political mud fight with equal merit or demerit to arguments on both sides. Senate Democrats, they say, have filibustered six of President Bush's nominees in retaliation for the 60-some Clinton nominees to whom the Republicans denied hearings, committee votes, or floor consideration. Couching the debate in this manner ignores the real issue – President Bush has undertaken a concerted strategy to pack the federal bench with right-wing extremists, and the Democrats have blocked a handful of the worst. Bush has responded by blasting the Democrats as obstructionists. He has also further poisoned the process by giving recess appointments to two of his most controversial nominees – Pickering, and former Alabama Attorney General Bill Pryor to the Eleventh Circuit.
Appellate judges have enormous power. Given that the Supreme Court reviews far fewer than one percent of appellate court decisions, these lower courts are the forums of last resort for the vast majority of federal cases in this country, including those having to do with such critical issues as the cleanliness of our air and water, the safety of our products and workplaces, and the extent of our individual freedom and privacy. The Fifth Circuit in particular has a proud history of leading the nation in advancing the cause of social justice. Against this legacy, Pickering's nomination to the court is a travesty.
Enter Mike Wallace. The dean of TV journalism set out to "investigate" the Pickering nomination battle with a preconceived story line that no battery of facts, no matter how massive or well-documented, could alter. Far worse even than the standard journalistic "he-said, she-said, a pox on both your houses," Wallace presented a "he-said" with no real response – nothing about the extensive record that raised such great concern within a huge coalition of civil rights, reproductive freedom, environmental protection and worker rights groups.
Contrary to his unchallenged – and unsupportable – assertion on the show that he has been labeled racist, Pickering mobilized such significant opposition because he is a bad judge, with a career-long antipathy to civil rights and reproductive freedom. He has been routinely reversed by the Fifth Circuit without comment, indicating that there was no nuance in the law: he simply got it wrong. Further, at his 2002 hearing, he betrayed a complete misunderstanding of employment discrimination law, the apparent reason why he has dismissed almost all of these cases that have come before him. He saw nothing wrong with contacting numerous lawyers in his small town – several with cases before him at that time – to request that they write letters in support of his Fifth Circuit nomination, and that they send those letters to him so he could forward them to the Department of Justice.
And, yes, Pickering is a bad judge because he bullied prosecutors into dropping a charge against convicted cross burner Daniel Swan, that would have alone carried a mandatory sentence of at least five years. His actions in that case raise serious questions about his judgment, his ethics, and his ability to apply the law faithfully and fairly; none of which Wallace challenged Pickering to answer. Referring to the act of terror and intimidation against an interracial couple with a 2-year-old child as a "drunken prank," Pickering railed against the unfairness of Swan's facing a total seven-year sentence when his co-defendants received probation and home confinement. What Pickering – and Wallace – neglected to tell viewers was that there were numerous differences between Swan and the other two defendants, the most significant of which was that the other two defendants – one a minor, and the other of diminished mental capacity – pled guilty while Swan chose to roll the dice, boasting to friends that he would serve no jail time for his actions.
And Pickering clearly knew that what he did was wrong. He did not merely object to Swan's mandatory sentence. He berated the prosecutors, ordered them to consult personally with Attorney General Janet Reno about the case and then sealed his order so no one would know, called prosecutors at home to see if they had carried it out, and threatened that he would write a decision about the legal issues in the case that he believed to be incorrect in order not to sentence Swan himself. Some of this country's most prominent judicial ethicists weighed in with the Senate Judiciary Committee, stating that Judge Pickering's actions in the case amounted to a serious breach of judicial ethics.
Pickering's conduct in the cross burning case reveals another side – a willingness, simply, to flout the law. Pickering's supporters argue that the judge has shown compassion toward defendants in other cases as well. Perhaps, but this case is the only one in which he tried to get around a mandatory sentence by forcing prosecutors to drop a charge. He agreed with the government lawyers on what the law required. So he took it upon himself to circumvent it.
Wallace challenged Pickering and his supporters with none of these facts that would have undermined their defense of Pickering's conduct. In addition, he mischaracterized the opposition to the Pickering nomination as arising exclusively from the cross burning case. In fact, Pickering's problematic record on civil rights issues spans 40 years. As a law student in the late 1950s, he wrote an article suggesting changes to the state's ban on interracial marriage to make it more effective. In the early 1960s, he chose to join the law firm of the state's former lieutenant governor who had recently run for higher office on a segregationist platform.
Wallace also offered airtime to Pickering and his supporters to extol his testimony in the late 1960s against Ku Klux Klansman Sam Bowers. While the judge should be commended for this action, by that time even those who supported segregation recognized that the Klan's violent activities were hurting the local economy by discouraging businesses from establishing there. Also, he testified under subpoena, and spoke two words under oath. In response to the prosecutor's request that he characterize Bowers' reputation for violence was, Pickering said, "It's bad."
At his 1990 district court nomination hearing, Pickering denied having had any ties to the Sovereignty Commission, a state-funded group established in the 1950s to fight desegregation, notorious for harassing and terrorizing civil rights and labor activists. In fact, the commission's records, which were finally opened in the late 1990s pursuant to a law suit, included a 1972 memo saying that state legislator Pickering and four other politicians were "very interested" in the results of a commission investigation into a local labor dispute and "requested to be advised of developments."
"60 Minutes" has done a great disservice to journalism and the American people. Far from shedding light on the judicial nominations process, Wallace has grossly mischaracterized the efforts of fair-minded senators to carry out their constitutional responsibility. People who seek these prestigious lifetime positions should be required to demonstrate legal excellence, unimpeachable integrity, and an unshakeable commitment to equal justice for all. We all deserve better from one of America's most respected and admired news sources.