The all-purpose smear

An unpopular truth

[Reprinted from Issues & Views November 3, 2003]

There probably could not be a more egregious example of lying and spin than in the case that the liberals have built against Judge Charles Pickering. Repeat a set of lies over and over, and as vehemently as possible and, after a while, no one will care about the truth. This case demonstrates how smears are accomplished against private citizens as well as public ones -- and how the manipulation of details can help create the illusion of an instant "bigot."

The Pickering case has truly roused the dander of columnist Nat Hentoff, who has been inspired to write three columns about it, that is, about the perfidy and downright dishonesty of his liberal cohorts. As soon as Pickering was nominated for a place on the Fifth Circuit Court of Appeals by the current Washington Administration, the liberals' "attack machine" (in Hentoff's words) geared up for battle. "In some 50 years as a reporter," writes Hentoff in his Village Voice column of October 30, "I have seldom seen such reckless, unfair, and repeated attacks on a person -- not only by Democrats on the Senate Judiciary Committee but also by organizations that gather financial contributions because of their proclaimed dedication to civil rights, civil liberties, and honest research."

And what is their apparent beef? They charge Pickering with a pattern of racial bias in his judgments on the bench. They point to a cross-burning case, where, according to these official keepers of the civil rights flame, Judge Pickering dealt too lightly with a young white man who was involved. After outlining the case in which three men burned a wooden cross outside the home of an interracial couple in Mississippi, Hentoff relates:

Two of the defendants, 17-year-old Jason Branch and 25-year-old Mickey Herbert Thomas, pleaded guilty, resulting in a plea bargain under which neither got any jail time, receiving instead probation and home detention. The third defendant, 20-year-old Daniel Swan -- who owned the pickup truck used in the crime -- refused a plea bargain and was convicted at trial.

This being a federal case, Justice Department attorneys, who had been involved in the two plea bargains, insisted that Pickering give Swan a seven-and-a-half-year sentence under the federal hate crimes statute.

On studying the information about each defendant, it was clear to Pickering that Jason Branch was the actual ringleader of the escapade and yet, by having plea bargained, he received no jail time. How, reflected the Judge, could it be fair to sentence the defendant Daniel Swan, who played the most minor role in the event, to 7-1/2 years in jail? Hentoff expresses admiration for Pickering's attempt at fairness, and continues:

I don't know how many other judges around the country -- in the interest of justice -- would then, as Pickering did, persistently pressure the Justice Department for a lower sentence than seven and a half years for Swan.

As [Neil] Lewis reported in the New York Times, "Judge Pickering told prosecutors he thought a long prison term would ruin Mr. Swan's life and noted that he was still sentencing him to more than the Justice Department had been willing to offer earlier in a plea bargain."

A Justice Department prosecutor, Jack Lacy, wrote to Pickering to support the Judge's concern, and claimed that he personally agreed that the 7-1/2 year sentence was "draconian." After the Justice Department was influenced to drop its demand for the higher sentence, Pickering then sentenced Swan to 27 months, which was 11 months longer than prosecutors had offered at the plea bargain.

In the current politically and racially charged environment, where a Supreme Court decision has more or less granted legitimacy to harsh punishment for cross-burning, it is, of course, incorrect to question why cross-burning is treated as anything but a misdemeanor. Why should the act of burning a couple of pieces of wood be treated with any more importance than the symbolic burning of the American flag?

There are charges that might be brought against a cross-burner, such as payment for property damage (burnt grass, perhaps?), or a citation for being a public nuisance. We know, of course, that it's the fashionable and unconstitutional "hate crime" dimension that now makes this an unspeakable act. And, as with so many other breaches of the law, there's no rhyme or reason to the sentencing of those charged as cross-burners. Why should Matthew Marshall in Texas, for instance, be forced to give over a decade of his life for this minor infraction of civility, and why are the same amount of years being taken from the life of Brian Swetnam in Maryland? Why should these young men be serving sentences more fit for violent or recidivist criminals? They are imprisoned only because of the "incorrect" thoughts in their heads, which now can selectively be punished with laws instituted by self-righteous demagogues.

Hentoff takes on the next lie offered by Pickering's opponents, especially Senator Ted Kennedy, who accuses the Judge of being hard on black defendants. Lawyers who have represented black clients in Pickering's court claim this is not so. In four cases in particular, it is clear that Pickering made considerable downward departure from federal mandatory sentencing guidelines (a fact that should not endear him to the current Attorney General). Hentoff writes:

In one of the four cases, the defendant, a first-time offender, had been on drugs since he was eight. Pickering gave him a sentence light enough to let him get rehabilitation services in prison. The black defendant's lawyer said "this may have been a positive life-changing experience" for his client.

Says Reuben Anderson, the first black Supreme Court justice in Mississippi, formerly with the NAACP Legal Defense and Educational Fund: "I have known Pickering for at least a quarter of a century. [He is] extremely fair and impartial to all the parties."

Hentoff suggests that an apology is due Pickering from those, who, like New York Senator Charles Schumer, while possessing all the details about the Judge's record, have continued to demonize him.

The unacknowledged elephant in the room, of course, is abortion. The principals involved in the Pickering case are not talking about it, but they're all thinking about it. It is Judge Pickering's perceived pro-life position that has set the hounds upon him and forced his opponents to find an alternative route to dismiss his nomination. And this they are achieving quite effectively, with the ever-reliable, all-purpose smear of "racist."

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