Tuesday, March 12, 2002
Washington Post columnist Richard Cohen is at it again. In an article in today's paper Cohen spends his time beating a dead horse. The dead horse is the doomed nomination to the 4th Circuit Court of Appeals of Judge Charles Pickering. Cohen and his liberal-left friends have won this one. Why can't they just sit there smugly and shut up?
No, in order to convince the American people that the Democrats are keeping evil, conservative jurists who want to overturn Roe v. Wade off the bench, they must continue to lie and demagogue a good man.
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.)
Cohen and his friends continue to bring up this law school story despite the fact that there's nothing to it. The article that Cohen refers to was an assignment that Pickering did in his freshman year of law school. Pickering researched the law and discovered that there were loopholes in it. The law was poorly written (surprise!). And, as part of the assignment, outlined how you would go about fixing the law. Which the legislature ultimately did. Oh, the law was also plainly unconstitutional, too. And a court later threw it out.
From a scholastic standpoint, it's no different than giving an electrical engineering student a circuit that runs power to an electric chair and asking him to improve the efficiency of the design. The student does it, successfully. Forty years later some pundit looks at the paper and criticizes the man for not coming out against capital punishment.
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.
Experts or opponents, Richie? Why would the liberal American Bar Association give Pickering a highly-qualified rating if he's been doing all of this "highly inappropriate" stuff? Why would the person he contacted at the Justice Department, Al Gore's brother-in-law, say that he doesn't remember this "highly inappropriate" contact. And if he'd suspected anything "highly inappropriate" about it, that he would've remembered it.
Richie, you're also telling a little fib. Pickering had a question about whether a specific part of the mandatory sentencing guidelines was being appropriately applied in that cross-burning case. He didn't contact the Justice Department and prosecutors to "get a reduced sentence," but rather to get information on whether the guideline was being properly applied.
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.
Another factual mistake here Richie, the guy in question didn't refuse to plea, the government didn't offer him a plea bargain in the first place.
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.
So, Pickering made 15 mistakes over a nearly 10 year period. According to other sources, he was overturned approximately 30 times, out of more than 4,000 cases. I'll leave it to Paul "Line 47" Krugman to figure out the math on that one for you, Richie, but it's not a whole lot. Besides, sometimes judges are overturned without comment, or "so wrong on the law," because the case in question is just a bad case ("bad cases make bad law") or because the case does not address a larger legal theory. How many federal appeals court judges are "so wrong on the law" every time the U.S. Supreme Court overturns a ruling without comment. This standard would certainly make the entire Florida Supreme Court look really bad.
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.
Well, Richie, the NAACP doesn't like him, so that must mean that he hates blacks. Of course, the NAACP doesn't like Bush either, does that mean that Bush hates blacks too? Or maybe their politics are just different. Oh, as Charles Evers pointed out, the Ku Klux Klan doesn't like Pickering either.
In the end, 15 mistakes out of 4,000 is a ratio that every editorial columnist should aspire to. A look at Cohen's columns over the past year show that even he makes mistakes.
In a way that TV emphasizes, he seems smaller than the office he occupies, less the master of his (or our) fate even than he was when he first took office. More and more he reminds me of that old commercial where the actor says, "I'm not a doctor, but I play one on television."
It is the same with Bush. I, for one, don't think Bush is a dope. But he sure plays one on television.
Richie, this whole column wasn't worth your time. Next time you feel an itch like this need scratching, try to stop yourself.
For links and a look at some history on the Pickering nomination, go here.