U.S. Sen. John Edwards of North Carolina may have missed 90 percent of the roll-call votes last month, as The News & Observer reported Sept. 25, but last week he thought it was important to temporarily get off the presidential campaign trail.
Thirty days before Halloween Edwards made sure he was in his seat for a meeting of the Senate Judiciary Committee. Why? Because he wanted to drive an oratorical stake through the heart of a mythical monster he created — one he thought he left for dead a year and a half ago.
In early 2002 Edwards inverted the integrity of Mississippi Judge Charles Pickering, President Bush’s choice for the Fifth Circuit Court of Appeals. What the trial lawyer horror-master of character assassination left behind was a gasping nomination that no one thought could be resurrected.
“My evaluation of him is based entirely on his judicial record,” Edwards told The News & Observer in March 2002. “His record is what it is.”
The problem is that Pickering’s history isn’t what Edwards shamelessly distorted it to be.
In early 2002 Edwards and his fellow Democrats opposed Pickering by leaning heavily on a contrived problem they had with his record. In a 1994 cross-burning case, the judge sought sentencing clarification from Civil Rights Division lawyers in the U.S. Justice Department. Under two separate federal hate-crimes statutes the lawyers wanted mandatory minimum sentencing applied to the conviction of Daniel Swan, which would have required Pickering to put him in jail for at least 7 1/2 years.
According to detailed reporting by Byron York in National Review Online, Pickering doubted both statutes applied and asked the Justice Dept. repeatedly to determine whether other federal courts implemented the same sentencing standards. Justice dilly-dallied in typical bureaucratic manner while Pickering, admittedly applying unique pressure, tried to get an answer before the sentencing date. The Feds dropped their demand for the full sentence under both statutes and decided that only 2 1/2 years of the mandatory sentence was required.
Why had Pickering pushed so strongly for an answer before sentencing Swan? Because Justice prosecutors cut a plea-bargain deal with two others who participated in the cross-burning. Neither of those two defendants received jail time, despite clear evidence that one of them was the ringleader, had a history of racial hostility, and was therefore more responsible for the hate-crime. Swan denied his motive was a hate-crime and was therefore not guilty under that particular law, although he admitted participation because of extreme drunkenness. Pickering believed 7 1/2 years for Swan was excessive in light of the plea agreement with the others.
According to York’s report, Pickering sentenced Swan to 27 months in prison. At his hearing the judge told Swan, “The type of conduct that you exhibited cannot and will not be tolerated…I would suggest to you that during the time you’re in the prison that you do some reading on race relations and maintaining good race relations and how that can be done.”
Edwards, polishing up his race-baiting credentials, said in a Feb. 2002 statement that “Judge Pickering took extraordinary steps to reduce the sentence required by law for a man convicted of burning a cross on the lawn of an interracial couple.”
To back up his sophistical charge against Pickering, Edwards shopped for opinions from law ethics professors about the case. He found three who were willing to offer assessments on Pickering’s actions “based upon the materials [Edwards] provided…,” in the words of Steven Lubet of the Northwestern University School of Law. Two others, Stephen Gillers of the New York University School of Law, and John Leubsdorf of Rutgers State University, also responded based on information provided by Edwards.
Think our presidential aspirant presented the whole picture to them?
Not that it matters; at least two of the professors are Edwards think-alikes. Lubet writes regularly for New York’s Newsday. His opinion pieces, among many, have backed up abortion rights and affirmative action; praised the decisions by the Florida Supreme Court in the 2000 presidential election; and criticized President Bush’s medical malpractice reform proposals.
Gillers is even more blunt. He wrote in the leftist magazine The Nation in July 1999, “My Y2K nightmare is that Republicans will win the White House and keep control of Congress.” Armed with his “ethics” professor ammo, Edwards trumpeted the three opinions to bolster his opposition to Pickering’s nomination, which was defeated in a March 2002 Judiciary Committee meeting on a 10-9 party-line vote.
But the 2002 elections turned the Senate over to the Republicans. Now the president has his party in the majority, the 10/9 Judiciary split favors the GOP, and Pickering won approval last week to get the full Senate’s consideration. His nomination now goes to the floor for a likely filibuster.
“Until this year, never in our history has a nominee been sent back to the Senate after they were voted down for the same position,” Edwards said before the committee last week. “This is wrong.”
Thanks for establishing that ethical standard for us, Senator.
Paul Chesser is associate editor of Carolina Journal, a publication of the John Locke Foundation.