Appeals Court Nominee Faces Trouble Over Cross-Burning Case

President Bush’s nomination of a Mississippi trial judge to the U.S. Court of Appeals ran into trouble Thursday when Senate Democrats revealed that the judge took unusual steps to win a lighter sentence for a man convicted of burning a cross at the home of a mixed-race couple.

It also was revealed that the nominee, U.S. District Judge Charles Pickering, an ally of Sen. Trent Lott (R-Miss.), organized a letter-writing campaign on his own behalf in October.

The judge acknowledged that he asked local lawyers, including those who appeared before him, to write letters to the Senate in support of his nomination. The judge said he collected the letters in his chambers and faxed them to Washington.

“I didn’t tell them what to say,” Pickering said when asked about the letters during a contentious hearing Thursday before the Senate Judiciary Committee.

“It’s quite an impressive outpouring of support,” said Sen. Russell D. Feingold (D-Wis.).

But it “creates an appearance of coercion,” he added, to have a powerful trial judge solicit support from local lawyers.

In recent weeks, Pickering’s nomination has emerged as the first judicial confirmation battle of the Bush administration. In a closely divided Senate, a series of ideological disagreements over judges is likely this year.

Pickering was nominated to move up to the U.S. 5th Circuit Court of Appeals in New Orleans.

Senate Democrats still are chafing over the makeup of that court, as Republicans had refused to hold hearings on three of President Clinton’s nominees to the 5th Circuit. Two were prominent Latino lawyers and one was African American.

Civil rights and women’s rights activists say Pickering, 64, is a staunch opponent of abortion and has made skeptical comments about federal laws concerning job discrimination.

In 1976, Pickering played a key role in getting the Republican National Convention to adopt a strong anti-abortion stand.

But Pickering said his personal and political views would not affect his judicial decisions.

Thursday’s hearing focused instead on the issue of race. Sen. Mitch McConnell (R-Ky.) praised Pickering for his “moral courage” during the 1960s.

As a young lawyer, Pickering testified against an imperial wizard of the Ku Klux Klan and worked with the FBI to arrest Klansmen.

“In the mid-1960s, in rural Mississippi, this took courage,” McConnell said.

James Charles Evers, the brother of slain civil rights leader Medgar Evers, appeared with several African American leaders from Mississippi to show their support for Pickering.

However, in a surprise development, committee Democrats turned their attention to the judge’s handling of a 1994 cross-burning case.

Minutes before the hearing began, the Justice Department turned over files compiled during the Clinton administration. They showed that Pickering was upset about the seven-year sentence proposed for Daniel Swan, then 20, who drove his pickup to the home of a mixed-race couple and joined two other men in burning an 8-foot-tall cross. The men also shouted racial epithets and fired shots into the house. One of the bullets narrowly missed the couple’s baby.

Pickering spoke of Swan’s action as a “drunken prank,” but he also called it a “despicable act” that deserved jail time. But the judge clashed with a Justice Department civil rights lawyer about whether Swan deserved the seven-year prison term called for by federal sentencing guidelines.

“I thought there was a tremendous disparity,” the judge said, because Swan’s co-defendant had pleaded guilty and obtained a minimal sentence.

But he did not stop with expressing his opinion in the courtroom. According to the files, Pickering met privately with the prosecutors and threatened to order a new trial unless they agreed to a lesser sentence.

When they refused, Pickering contacted a top Justice Department official in Washington and said that Atty. Gen. Janet Reno should intervene.

In pointed questioning, Sen. John Edwards (D-N.C.) suggested that the judge appeared to have violated the judicial code of conduct, first by meeting privately with one side of the case and then by intervening at the Justice Department.

“This is very much outside the ordinary,” Edwards said, based on his 20 years in law practice.

Pickering admitted he had met privately with the lawyers in the case but said he “had no recollection” of threatening to order a new trial.

“I did not minimize the seriousness of cross-burning,” the judge replied. He finally sentenced Swan to 27 months in prison.