The Nation

At 1700 Birmingham Ave., in Jasper, Ala., sits the little white bungalow where Carl Elliott lived for more than 50 years. It is about as unassuming a house on about as unassuming a street in about as unassuming a town as you will find in America. Elliott died in Jasper three years ago with little money to his name. He had spent his last working years as a small-town lawyer representing the same farmers and working people whose cause he took up after graduating from the University of Alabama Law School in 1936. Had he been just a bit less honorable, Elliott might well have earned nomination to a United States Circuit Court of Appeals judgeship in the south -- not unlike the one to which President Bush has nominated a man who in the 1960s stood on the opposite side of Southern politics from Elliott, Mississippi Federal Judge Charles Pickering Sr.Unlike Mississippi's Pickering, Alabama's Elliott took a politically and personally dangerous stand against racial segregation at a time when such stances mattered. Unlike Pickering, Elliott surrendered his opportunity to live in a bigger house, to collect a big salary and to serve on one of the nation's highest courts. He did so because, even though he was a good-old-boy Southerner, he believed that African-Americans had a right to equal treatment under the law. Elliott is all but forgotten today, while Pickering is grasping for one of the greatest honors available to an American lawyer.With a Senate Judiciary Committee vote on whether to endorse Pickering's nomination scheduled for this Thursday, the battle over his selection has developed into one of the most intense political struggles of the Bush presidency. After stumbling badly in a pair of appearances before the Senate Judiciary Committee, where he faced withering questioning about his segregationist past and his more recent ethical missteps, it appeared that Pickering would become the first Bush judicial nominee to be rejected. But the president has fought back, working to revive the Mississippian's chances along with the nominee's Senate sponsor, Minority Leader Trent Lott, R-Miss., and anti-abortion groups that have championed Pickering's cause since he led the fight to get the 1976 Republican National Convention to condemn the Supreme Court's Roe-v-Wade decision."This is a good, good honorable citizen," Bush said of Pickering, after appearing with the judge last week. The judge's son, Rep. Charles Pickering Jr., made the remarkable declaration that his father had "always" spoken for racial reconciliation in the south. Of references to Pickering's pro-segregation activities in the past and his present opposition to basic principles of equal justice under the law -- such as one-person, one-vote -- the judge's son said, "Everything said about him is taken out of context. These are distortions and stereotypes to smear a good man."So let's talk context. Let's talk about the choices made by two politically active southern lawyers in the civil rights era.In those last days of the old south, Elliott was the rising star of Alabama and national politics. Elected to Congress in 1948, he authored landmark legislation such as the National Defense Education Act, which since 1958 has provided 30 million low-interest loans for needy students to study science, foreign language and technology. When the civil rights movement of the 1960s forced Southerners to take sides, however, Elliott risked his career to stand with those who favored racial tolerance. Elliott was not a perfect advocate for integration, nor was he a firebrand. But, when the time to speak up came, he condemned Alabama Gov. George Wallace and other Southern politicians for stirring segregationist passions, and he sided with national Democrats such as John F. Kennedy against his own state party. As a result, Wallace and his segregationist allies restructured congressional voting in the state in order to force Elliott from his seat. Elliott turned around and ran for governor in 1966, seeking to forge a coalition of newly enfranchised African-American voters and working-class whites to break the hold of the Wallace family and its wealthy segregationist backers over the politics of the state. He even cashed in his Congressional pension to make the fight. Elliott failed - narrowly - and was finished politically. As the New York Times would note: "(Elliott) sacrificed his political career to the principles of social justice." Charles Pickering Sr. walked a radically different road than Carl Elliott. In 1959, as a law student, Pickering wrote an article that served as the basis for a move by Mississippi legislators to strengthen the state's ban on interracial marriage. In the early 1960s, as a young lawyer, he set up a law practice with one of Mississippi's leading segregationists, a fiery foe of civil rights who ran for lieutenant governor on a "segregation forever" platform." After Fannie Lou Hamer and other Mississippi civil rights activists sought to be seated at the 1964 Democratic National Convention, Pickering was so angered that he announced he was quitting a Democratic party that southerners believed had grown too sympathetic to integration. As a state legislator, Pickering voted to fund the Mississippi's Sovereignty Commission, which was set up to fight desegregation. And, though he once told the Senate he never had dealings with the Commission, the recent opening of its files reveals that Pickering contacted it with concerns about an effort to form a multiracial union in his hometown.These days, the judge's defenders suggest that he should be forgiven his past missteps. Even as records of Pickering rulings from the federal bench reveal a penchant for opposing application of the Voting Rights Act and anti-employment discrimination rules to address lingering southern racism, and even as Senate hearings have detailed Judge Pickering's 1994 intervention with the US Justice Department to reduce the sentence of a convicted cross-burner, Bush, Lott and their allies in the Senate continue to claim that the judge's history must be seen in the context of the times. They point to the judge's rare deviations from hard-line stances and suggest that Pickering was on the side of the angels even as he practiced law with one of Mississippi's most outspoken segregationists.Perhaps Lott's spin could be excused if no Southern whites had ever stood up to the segregationists when it was difficult. Perhaps if the best that could be expected of any true son of the South in those days was the "respectable" support for segregation practiced by the likes of Charles Pickering it would be appropriate to dismiss the public record. But that was never the case. There was no mystery as to the right or wrong way in the 1960s, as lawyers like Carl Elliott recognized. When members of the Senate Judiciary Committee vote on the Pickering nomination, they face a choice. They can honor the memory of Carl Elliott and the other Southerners who took the risk of opposing segregation in the 1960s, or they can send a signal that in the eyes of the Senate it is never really necessary to do the right thing.