Opposed -- but Not Borked
By Richard Cohen
Tuesday, March 12, 2002; Page A21
According to hallowed custom, you are not supposed to know who wrote a particular editorial. Yet when The Post back in 1987 announced its position on the Supreme Court nomination of Robert Bork, there was no doubt the writer was the late Meg Greenfield. In sentences that locked together like Legos, with wit and erudition, she bewailed the Borking of Bork. She celebrated his experience, saluted his intellect, hailed his intellectual courage and, in the end, found him unfit for the highest court. Since then, the extremely extremist Bork has proved her right.
Greenfield found Bork to be outside a certain comfort zone -- a legal scholar with a passion for the law but not necessarily for justice. The distinction is a subtle one and is, I think, what the opponents of Charles Pickering are essentially saying. Pickering is the federal judge whose nomination to an appeals court apparently is doomed.
What compelled me to read my Greenfield was the constant mention by Pickering's supporters of Bork's name. It is not possible to read the conservative press on this nomination without coming across the word "Borking" to explain what is happening to poor Pickering.
It is not possible, either, to quibble with his positions regarding race without being accused of Borking him as a racist, which, as a white Mississippian raised on the gruel of Jim Crow, he once was. (As a law school student, he suggested a way to tighten the state's ban on interracial marriages.)
But that was then, we are told, and this is now. Okay. But now -- which is to say the past 20 years or so -- encompasses a political-judicial career that has been so conservative it is downright reactionary. Not racist, mind you, but hostile to the Voting Rights Act. Not racist, but hostile to the concept of one man, one vote. Not racist, but hostile to plaintiffs in employment discrimination cases and a bit too solicitous of a goon who burned a cross on the lawn of an interracial couple. Pickering contorted both the law and himself to get the guy a reduced sentence.
To his opponents on the Senate Judiciary Committee -- Democrats all -- this cross-burning case stands out. It does so because it is an example of Pickering's getting so worked up over something that he busted through ethical barriers to achieve his purpose. With the cross-burner, he contacted the Justice Department and the prosecutors to get a reduced sentence. This, the experts tell us, is highly inappropriate.
It is also somewhat odd. Judges frequently are compelled by federal regulation to issue disparate and sometimes excessive sentences. One defendant pleads and gets a light sentence. Another refuses a plea and gets the book thrown at him. This is what happened in the cross-burning case. (Imagine being in the house at the time.) But when it comes to disparate sentences, nothing compares to what you routinely get for cocaine vs. crack possession. Pickering is mum on that, though.
For a conservative, Pickering can be quite unconservative. As a judge he was overruled 15 times without comment by an appeals court that found him so wrong on the law that the matter just wasn't worth discussing. It appears he can be very headstrong. He is most confident, it seems, of his own rectitude. For instance, he felt so strongly that he ought to be promoted to the appeals court that he had lawyers who appear before him write letters of recommendation -- and submit them to him so he could pass them on.
Pickering is opposed by his state's black law association as well as the state and national NAACP. It's apparently true that in his hometown, the minority community likes him just fine, but they are judging the man and not the jurist. It is the latter who could do real damage to the body of laws that protect civil rights, not because he is a racist but because he is implacably and, sometimes, hyperventally conservative.
George W. Bush sent the Senate a nominee it cannot swallow. Twice now confirmation votes have been postponed in committee because the Republicans don't have the votes. Instead, they have mounted a smear campaign, insisting that Pickering is being smeared -- unfairly called a racist, among other things.
But just as it was with Bork himself, not all criticism can be deflected by yelling "Borking." Pickering, too, is outside some undefined comfort zone. He is no racist, and he may be, as his champions say, a great guy and a worthy man. But he has been an awful judge. And that ain't Borking. That's the truth.
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