On judicial nominations, Democrats accuse President Bush of fomenting racial division. On tax cuts, Bush and other Republicans accuse Democrats of "class warfare."
But the Democrats are the ones who are race-baiting, in their deceptive efforts to smear Bush nominee Charles W. Pickering Sr. as hostile to civil rights and soft on racism. And the Bush Republicans are the ones who seek not merely to cut taxes for all income classes, but to shift part of the tax burden from one class (you know which one) to everyone else.
Exploiting racial divisions was, and to some residual extent remains, part of the Republican "Southern strategy." But in recent years it has become more of a Democratic-liberal specialty, as exemplified by the stunningly scurrilous NAACP television ads during Campaign 2000 equating then-Texas Gov. George W. Bush's opposition to a hate-crime bill with white racists' gruesome murder of James Byrd.
Now comes a somewhat subtler exercise in fanning racial resentments, by Senate Democrats and liberal groups who seek to tar as a plot to destroy civil rights Bush's renomination of Pickering, a U.S. district judge in Mississippi, for the same federal appeals court seat that Judiciary Committee Democrats denied him last March.
"For years, the courts have served as the shield protecting basic civil rights in this country," Sen. Charles E. Schumer, D-N.Y., asserted on January 8. "Instead, this administration seems to want the courts to be the sword that destroys those rights." Four days later, on ABC's This Week, Senate Minority Leader Thomas A. Daschle, D-S.D., accused Pickering of "insensitivity to civil rights, to equal rights, especially to minorities." Daschle said, "This really lays bare the administration's real position on civil rights. This exposes the Southern strategy clearly. There is no doubt in my mind we now know from where they come."
But the record shows that while the 65-year-old Pickering said and did some things 30 and more years ago that look bad now, and still has his flaws, his record on racial matters for most of his adult life has been admirable and at times courageous.
Pickering testified against a Ku Klux Klan leader in a murder case in 1967, when that was a dangerous thing to do, and he lost his bid for re-election as a local prosecutor because of it. He has long been a leader in organizations seeking to improve race relations in his state. He kept his children in the desegregated public schools as the schools became majority-black.
As one reporter wrote from Pickering's hometown of Laurel, Miss., "the city's black establishment overwhelmingly supports his nomination," with many saying "they admire his efforts at racial reconciliation, which they describe as highly unusual for a white Republican in the state." (The reporter was David Firestone of The New York Times, which has editorialized incessantly against Pickering.) Black leaders also praised Pickering for "directing federal money to medical clinics in low-income areas when he was a state senator [and] persuading white-owned banks to lend money to black entrepreneurs." The black president of the City Council, Thaddeus Edmonson, told Firestone, "I can't believe the man they're describing in Washington is the same one I've known for years."
The Democratic bill of particulars against Pickering on the race/civil-rights front is long, and exposes some blemishes, but it seems so unconvincing on close scrutiny as to reinforce the suspicion that his real sin is being an anti-abortion, religiously devout Southern white male whose decisions reflect his conservative ideology but do not deliberately twist the law:
- Pickering wrote a law review article suggesting how to fix a technical flaw in Mississippi's law banning interracial marriages. But that was in 1959, when he was a 21-year-old law student, and 23 other states had similar laws. Critics do not mention Pickering's recent testimony embracing the right to choose "who one marries," or his 1991 order faulting a jury for bias against a mixed-race (white and Asian) couple.
- As a state senator, Pickering twice voted to "defray the expenses" of the notoriously segregationist Mississippi State Sovereignty Commission. That was bad. But it was 30 years ago, when a contrary vote might have meant political suicide. Critics also suggest that he lied in 1990 testimony that "I never had any contact with" the commission. Its records show that he did have one conversation with a commission staffer in 1972, seeking information about a labor dispute. Pickering's claim that he had forgotten this by 1990 is entirely plausible.
- As a trial judge, Pickering has manifested a "disturbing hostility towards civil-rights plaintiffs," in the view of People for the American Way. This charge is based largely on his rulings against civil-rights plaintiffs in about a dozen cases and his criticisms of some for bringing unwarranted lawsuits. But a reading of the opinions suggests that both Pickering's rulings and his criticisms were reasonable.
- Critics highlight Pickering's efforts in 1994 and 1995—including an extraordinary call to a high-level friend at the Clinton Justice Department—to pressure federal prosecutors not to insist on a seven-year prison sentence for a participant in a cross-burning on an interracial couple's lawn. The phone call was ill-advised. But it was not the serious ethical breach that critics suggest it was, and it would be of little interest had this been an ordinary case.
This episode does raise an extremely serious question: Does Pickering have a soft spot for racists who commit hate crimes? The answer appears to be no. He has explained, "This was the worst case of disparate sentencing that had come before me." Prosecutors had given no-jail plea bargains to two members of the drunken cross-burning trio, including the ringleader, a precociously racist 17-year-old who had previously fired a gun into the couple's home. But when a jury convicted Daniel Swan, prosecutors pressed for seven years. Pickering thought that the ringleader should have gone to prison and that Swan—a 20-year-old with no criminal record or history of racist conduct—deserved less than seven years. He ultimately sentenced Swan to 27 months for his "despicable act."
Pickering also has an unfortunate habit of injecting gratuitous conservative and religious commentary into some of his rulings, including a rambling critique of the Supreme Court's one-person-one-vote precedents. On occasion, he has openly chafed at rules of law that he has a duty to apply. Although a not-exactly-conservative American Bar Association committee rated him "well-qualified" for the appeals court, his judicial opinions do not bespeak a first-rate legal mind. He was not an impressive witness at his two confirmation hearings. Indeed, I leaned against his nomination in a column last February 16, in part to counter Bush's uncompromising insistence on filling with conservatives judicial vacancies that Senate Republicans had unjustifiably prevented President Clinton from filling.
As a political matter, Pickering was never really Bush's guy. He owed his initial, May 2001, nomination to his friend Sen. Trent Lott, R-Miss. Now Lott has been deposed as Republican leader and Pickering has become a favorite punching bag for Democrats. Bush could have found a more distinguished, less controversial nominee. Why did he renominate Pickering?
Maybe he did it to court Southern white votes. But maybe Bush's reason—or part of it—was that taking on the distorters and smear artists and race-baiters, rather than throwing a decent man to the wolves, was the right thing to do.
Bush did the wrong thing, on the other hand, when he hurled the "class warfare" slogan on January 9 at critics of his tax proposals. You don't have to be a socialist or a soak-the-rich populist to believe that fairness calls for giving middle- and lower-income people a proportionate share of any tax cuts, at least absent proof that skewing the cuts toward the wealthy would spur economic growth.
The Bush plan fails this test. It would leave the unrich with a much smaller percentage increase in after-tax income than the rich, and with a larger proportion of the post-cut tax burden than they bear now. After-tax income would rise by a whopping 4.0 percent for people earning more than $1 million a year; by 2.3 percent for people earning $200,000-$500,000; but by only 1.4 percent for people earning $50,000-$75,000, and by less than 1 percent for people earning under $30,000, according to the nonpartisan Tax Policy Center. Beyond that, Bush's regressive proposals would probably provide less of the economic stimulus he says he wants than would a cut in the payroll tax, which is a heavier burden than the income tax for low-income employees.
Reallocating a chunk of the tax burden from the rich to working people is not fair. And demanding tax fairness is not class warfare.