Here Comes the Judge — Again!

by Patrick J. Buchanan – January 13, 2003

“Mr. Bush the Wedge Driver,” railed the Washington Post, as it bemoaned what it calls the president’s “first attack in an ill-timed and partisan war.”

What exactly did Bush do to provoke the war? He kept his word to an electorate that gave him a thumping victory in November by renominating to the 5th Circuit, U.S. District Judge Charles W. Pickering Sr. of Mississippi. Last year, Pickering had been smeared and rejected by an obstructionist Senate Judiciary Committee on a straight party-line vote.

Good for Bush. Instead of buckling to threats that he must abandon the judge after the Trent Lott affair, he refused to dump this man. If the Republican Senate will show the same moxie, the GOP can make the liberal bigots who run this city pay a heavy price for their politics of vindictiveness against Southern jurists.

First, about Judge Pickering. He was confirmed unanimously by the Senate in 1991 and has served with distinction. What is the moral felony lodged against him? Seems that in 1994 Pickering reduced the sentence of a white male involved in a cross-burning.

Here are the facts as reported by National Review’s Byron York:

On Jan. 9, 1994, 20-year-old Daniel Swan, 25-year-old Mickey Herbert and a 17-year-old juvenile, following a drinking bout, decided to burn a cross on the lawn of an interracial couple in rural Walthall County. Previously, the juvenile had fired a gun into the couple’s home. The cross-burning was the 17-year-old’s idea. Neither Swan nor Herbert had any role in the shooting incident.

In February 1994, the three were apprehended. The Civil Rights Division of Clinton’s Justice Department recommended that Herbert, who had a low IQ, and the 17-year-old, who pled guilty to the cross-burning and to felony charges in the shooting incident, receive no jail time. But Swan, though he was drunk that night and there was no evidence he acted out of race hatred, was charged with a hate crime.

During the trial, Pickering came to conclude that it was the 17-year-old, not Swan, who was the ringleader and who acted out of hatred. Swan had no criminal record. One witness testified he had an animus against blacks, but seven witnesses testified he did not. Swan was found guilty of a hate crime, and federal prosecutors recommended he serve seven and a half years in prison!

A stunned Pickering called the recommendation “the most egregious instance of disproportionate sentencing recommended by the government in any case pending before this court. … [Swan] clearly had less racial animosity than the juvenile.”

Pickering called Justice to protest the inequity and find out if the draconian sentence was mandated by federal guidelines. The prosecutors finally agreed that Pickering could knock five years off.

Swan served two years for a cross-burning for which the 17-year-old served no time at all. This is the mortal sin for which Pickering is being vilified.

“This is a moral issue,” rages Sen. Charles Schumer of New York, who says he will lead a filibuster to keep Pickering off the appellate court. Republicans should take up this challenge with alacrity and fight for Pickering as they did not do when he was smeared as a Southern racist by the Judiciary Committee last year.

If the facts are known, Americans will see Pickering for who he is, a good man whose sense of decency was outraged by an injustice he sought to correct. He is not “racially insensitive.” He is himself the victim of yet another hate crime against the South.

Moreover, if the truth is known about Judge Pickering, Southern Democratic senators, including presidential hopefuls John Edwards of North Carolina and Bob Graham of Florida, will be forced either to stand by Pickering or join the lynch mob. As I recall, Democrats smeared and defeated two Southern conservative Supreme Court nominees of President Nixon, but as a consolation prize, Nixon won every Southern state in 1972 by a landslide.

Americans do not want liberal judicial activists on the bench. They want constitutionalists. And no one will punish a party that goes down to defeat fighting for an honorable man. The longer this battle goes, the more damage Democrats do to themselves in a South they cannot again write off and expect ever to win the presidency.

Let the liberals try to kill Pickering’s nomination. As they do, they will cut their own throats. The renomination of Pickering was not only honorable, it was inspired.

Let the battle begin.