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Jewish World Review Feb. 4, 2003 / 2 Adar I, 5763

Nat Hentoff

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The other Pickering story | According to vociferous Democrats on the Senate judiciary committee, Mississippi Judge Charles Pickering is an especially outrageous presidential nominee to the 5th Circuit Court of Appeals. Minority Senate leader Tom Daschle of South Dakota pledges that "we're going to do everything we can to stop that nomination." If need be, say Sens. Ted Kennedy (Massachusetts) and Charles Schumer (New York), they will paralyze Senate business and filibuster.

Whatever one's attitude about whether Pickering merits the promotion, the way these Democratic senators have ignored -- or deliberately misstated -- the facts in their key charge against Pickering reveals how scrofulous the partisanship on this committee can become.

This behavior is not exclusive to these senators. I also include in this the various anti-Pickering organizations who imply that he is a racist, and who are complicit in denying him basic fairness on this widely publicized accusation.

Indeed, I cite The Washington Post, which last year called the U.S. District Court judge's first hearing "a degradation of the confirmation process."

The anti-Pickering campaign's keystone concerns United States v. Swan, a 1994 case involving three white men who burned a cross in front of the home of a white man and his black wife in a rural Mississippi county.

The Civil Rights Division of the U.S. Justice Department decided to make a plea bargain with two of the three defendants. It made sense for 25-year-old Mickey Thomas, because of his low I.Q. But the other, a 17-year-old whose name was not released because of his age, turned out to be the ringleader. Both pleaded guilty and, based on the prosecutors' recommendations, received no jail time.

But the government insisted that 20-year-old Daniel Swan be given a mandatory minimum sentence of 7-1/2 years under the federal hate crimes statute. According to that law, the government had to prove that the considerable jail time was justified because the defendant had sufficient racial animus to be punished under that law.

The ringleader had previously fired a gun into the home of the interracial couple. The other defendants were not involved in that incident. And the 17-year-old defendant also had a history of anti-black attitudes. Swan, clearly involved in the cross-burning, did not have a prior record of violent hostility toward blacks. Swan refused to bargain and pleaded not guilty. In a two-part documented account of why Pickering did not want to impose the 7-1/2 year sentence on Swan -- as appeared in the National Review Online article "The Cross-Burning Case: What Really Happened" -- reporter Byron York wrote:

"When it came time to sentence Swan, Pickering questioned whether it made sense that the most-guilty defendant got off with a misdemeanor and no jail time, while a less-guilty defendant would be sentenced to 7-1/2 years in prison."

One of the prosecutors, Jack Lacy, wrote to Pickering that he "personally agreed with the judge that the sentence is draconian," but added that Swan had "repeatedly chucked our (plea) offer in our teeth."

Pickering did try hard to get the Justice Department to recommend a lower sentence that would have more to do with justice than with the prosecutor's pique that Swan had refused to accept a plea bargain.

"Finally," York wrote, "Pickering got word from Civil Rights Division prosecutors, who said they had decided to drop the demand that Swan be given the five-year minimum portion of the recommended sentence. Pickering then sentenced Swan to 27 months in jail."

At the sentencing, Pickering told Swan that he had committed "a despicable act ... and it's an area that we've got to stamp out; that we've got to learn to live (together)." Yet, Schumer threatened to filibuster against Pickering's elevation to the 5th Circuit because the judge, Schumer said, showed "glaring racial insensitivity" in working to get a lighter sentence for Swan. And New York Times columnist Maureen Dowd writes that Pickering has "a soft spot for cross-burners."

Sen. Kennedy has also charged that Pickering showed selective leniency toward this white cross-burner, while coming down hard on black defendants before him.

However, I have copies of the letters to the Senate Judiciary Committee from four lawyers in Hattiesburg, Miss., who represented black defendants before Pickering. Each tells of cases in which Pickering made significant downward departures from federal sentencing guidelines for these black defendants. Are these the actions of a racist?

In one of these cases, the client, "a first offender, did not have a high school degree and admitted to drug use since age 8." Pickering went outside the guidelines recommended by the U.S. Attorney, "thus enabling my client to qualify for several rehabilitative opportunities while incarcerated ... I believe my client's sentencing experience with Pickering may have been a positive life-changing experience for the defendant."

During their filibusters, will Sens. Schumer and Kennedy include this information as they maintain that, according to Schumer, Pickering's nomination proves that "Richard Nixon's Southern strategy is alive ... in the White House"?

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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