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Kavanaugh and a Mississippi Judge: Did Nominee Mislead Congress on Pickering?

U.S. Supreme Court nominee Brett Kavanaugh served as counsel in the George W. Bush White House, where he worked on advancing several Bush court nominees, including Judge Charles Pickering, whose nomination was blocked amid revelations about his history on race and ties to segregationists. Under oath in 2006, Kavanaugh told the Senate he had little role in Pickering's nomination, but emails released in August 2018 show his role may have been larger than he claimed.

U.S. Supreme Court nominee Brett Kavanaugh served as counsel in the George W. Bush White House, where he worked on advancing several Bush court nominees, including Judge Charles Pickering, whose nomination was blocked amid revelations about his history on race and ties to segregationists. Under oath in 2006, Kavanaugh told the Senate he had little role in Pickering's nomination, but emails released in August 2018 show his role may have been larger than he claimed. Photo by AP Photo/Jacquelyn Martin

— U.S. Supreme Court nominee Brett Kavanaugh appears to have been more involved in President George W. Bush's 2003 nomination of then-U.S. District Judge Charles Pickering to the 5th U.S. Circuit Court of Appeals than he admitted in sworn testimony before Congress in 2006. Kavanaugh is President Trump's nominee whose confirmation hearings before the U.S. Senate took place last week.

In 2003, Democrats opposed Pickering's nomination amid questions about his views on race and his ties to segregationists.

After Bush nominated Kavanaugh to the D.C. Circuit Court of Appeals in 2006, Kavanaugh told the U.S. Senate under oath that Pickering "was not one of the judicial nominees that I was primarily handling." But new emails from Kavanaugh's time as an attorney in the George W. Bush White House show he sent dozens of emails to fellow White House staffers dealing with Pickering's nomination and even handled drafts of op-eds in support of him.

In a Jan. 28, 2003, email, Kavanaugh listed three Pickering-related items on his six-item to-do list: "3. Owe you binders on Owen and Pickering for Collins and Chafee staff"; "5. Waiting on Ashley for word on Pickering op-ed"; 6. "Preparing letters ... to Schumer re: Pickering."

In other emails, Kavanaugh pasted the contents of news articles about Pickering to keep staff abreast of coverage, including one unattributed column that argued that criticism of the judicial nominee was not about "false charges of racism," but about Pickering's views on abortion.

"Playing the race card on Pickering is an easy play indeed for the pro-choice lobby," the column reads. Above the pasted column, Pickering described it as "an interesting and probably accurate analysis."

Kavanaugh's frustration with the Bush administration's lack of a response to criticisms of Pickering shows in other emails.

"We just continue to take it without any meaningful Administration response," Kavanaugh complained in one to which he attached a column that accused Pickering of "a record of dismissing employment discrimination cases without holding trials."

In a May 2003 email, a White House staffer named Wendy Grubbs told Kavanaugh she had requested "the Pickering package they are distributing." Who is "they," Kavanaugh asked. "The Pickering team," Grubbs responded. Chip's [chief of staff] and whoever else they are using. You should know them. Hehe."

In August, U.S. Sen. Dianne Feinstein, D-California, said the emails raise "serious questions" about Kavanaugh's record.

"Some of the narrow set of documents from Kavanaugh's time in the White House that we've seen and are public show that he led on key parts of the Charles Pickering nomination, which he denied," Feinstein said.

U.S. Senate Minority Leader Chuck Schumer, D-N.Y., said the emails suggest Kavanaugh may have "misled the Senate" in his 2006 testimony on the Pickering nomination.

From Cross Burners to the Citizens Council

In his 2003 hearings, Senators questioned Pickering about a case in which he argued for a reduced sentence for a cross-burner who was convicted of a hate crime. Pickering defended his decision, saying that man's sentence was unfair because two others involved in the case got off with no prison time thanks to a plea agreement.

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Pickering also faced criticism for a 1959 law review article that advised Mississippi legislators on ways to shore up the state's law banning interracial marriage to help it withstand constitutional scrutiny in the aftermath of the U.S Supreme Court's ruling ordering school desegregation. The Legislature followed his advice. Rather than repudiate the article, Pickering defended it as "an academic exercise."

Former Democratic Mississippi Lt. Gov. Carroll Gartin, another Laurel native and Pickering's old law partner, also came up during the hearings. Gartin was a segregationist who fought racial integration every step of the way.

As Millsaps College history professor Stephanie R. Rolph describes in her recent book, "Resisting Equality: The Citizens' Council, 1954-1989," Gartin was extremely active in the racist Citizens' Council and a member of the active Jackson chapter. "His advocacy for legislation to outlaw the NAACP in Mississippi had endeared him to Council leaders in previous years... ," Rolph writes of Gartin's campaign against Ross Barnett for governor in 1959. Gartin's devout racism forced Barnett to prove his anti-segregationist cred and devotion to the Citizens' Council.

As lieutenant governor, Gartin had helped create the Mississippi Sovereignty Commission, the state-funded spy agency that tracked civil-rights activity, as well as instances of white business owners allowing black people to use their bathrooms. Gartin lost to Barnett by less than 40,000 votes.

During his confirmation hearings, however, Pickering described Gartin as a "progressive" whose segregationist views were mild.

Like Kavanaugh's old emails, for Pickering, old newspapers told a different story.

In 1955, Gartin pulled out of attending a football game in Pasadena, Calif., where Jones County Junior College would be playing as guests after learning the California team would include black players. Previously, Gartin said he would travel and be the "number one booster" of the game. The story appeared in the Oct. 4, 1994, issue of the Los Angeles Sentinel.

In the March 1, 1956, edition of the Abilene Reporter newspaper, Gartin declared his suport for a resolution in the Mississippi Legislature that says states have "the right to maintain, operate, and control their school systems"—a response to Brown v. Board of Education, which ordered the desegregation of southern schools. "We are not willing to sit idly by and be trampled underfoot by the Supreme Court of this nation," Gartin said.

In the Nov. 25, 1958, edition of the Greenville Delta Democrat Times, Gartin praised "the willingness of our Legislature to enact every conceivable law aimed at protecting our segregated system," and "the work and untiring efforts of organizations such as the Citizens' Councils and the belief by an overwhelming majority of both races that segregation is best for both white and the Negro race."

'Humiliation and Embarrassment'

Pickering would have been aware of his law partner's views when, during Gartin's failed bid for governor in 1959, he campaigned for him. "Tonight see and hear Charles Pickering speaking in behalf of the candidacy of Carroll Gartin for Governor," reads a newspaper ad from Aug. 14, 1959, previewing an appearance on WDAM TV.

In 1964, Pickering left the Democratic Party and became a Republican, after chaos erupted at the Democratic National Convention when the Mississippi Freedom Democratic Party, led by civil rights activist Fannie Lou Hamer, demanded representation of black delegates at the convention. Pickering called it a source of "humiliation and embarrassment" for the state.

In 2003, Salon reported then-newly unveiled documents showing Gartin—who was secretly working with Republican leaders despite remaining a Democrat—had been behind the push for Pickering to switch parties.

"This boy, Charles Pickering, is a very able person and I think he will mean a great deal to the Republican Party in Mississippi," Gartin wrote to a Republican Party official in September 1964. "Personally, I have been so busy converting my law partner lately that I haven't been out too much, but I still think Goldwater will easily carry the state."

Barry Goldwater, the anti-civil rights Republican presidential nominee that year, won the state with 87 percent of the vote, despite being the first Republican to win Mississippi since the Reconstruction Era. His party switch is widely credited with accelerating the switch of segregationist southern Democrats—called Dixiecrats—to the Republican Party after national Democrats supported federal civil-rights legislation, which the Citizens' Council and Mississippi leaders vehemently opposed.

Pickering's 2003 nomination ended in a filibuster by Democrats. Bush appointed him to the 5th Circuit unilaterally using a recess appointment in January 2004, but the appointment ended in December.

The Mississippi Supreme Court building in downtown Jackson, completed in 2011, bears Gartin's name: the Carroll Gartin Justice Building.

Ashton Pittman covers states politics for the Jackson Free Press. Email him at ashton@jacksonfreepress.com and follow him on Twitter @ashtonpittman. Donna Ladd contributed to this story.


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