The Nation

After months of struggle, first by Mississippi activists, then by national civil rights groups and finally by a handful of determined Democratic members of the U.S. Senate, the Senate Judiciary Committee on Thursday blocked the nomination of Mississippi Federal Judge Charles Pickering to serve on the powerful 5th Circuit Court of Appeals. The defeat of the nomination came as a vindication for groups such as the National Association for the Advancement of Colored People, the Leadership Conference on Civil Rights, the Alliance for Justice and People for the American Way, which were viciously attacked by rightwing organizations, publications and senators when they first suggested that Pickering should be rejected because of his ties to Mississippi segregationists of the 1960s, his hostility as a federal judge to the application of civil rights laws, and concerns about his ethics.

The committee's rejection of the Pickering selection marks the first time that one of President Bush's judicial nominees has been rejected by Senate Democrats, who may soon be called upon to weigh the merits of a Bush nominee for the Supreme Court. To the delight of activists concerned by the caution of Congressional Democrats when it comes to challenging the president, the hearing that preceded the Pickering vote saw Democrats flex legislative muscles rarely used in recent months.

Referring to the Constitutional provision that empowers the Senate to offer advice and consent as regards presidential nominations, Judiciary Committee chair Patrick Leahy, Democrat of Vermont, declared, "It's advise and consent, it is not advise and rubber stamp."

In remarks that came at the close of a long and contentious committee session that played out before a packed hearing room, Leahy calmly described Pickering as a conservative judicial activist who "repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights." The judge's record, he argued, did not justify promotion to a federal bench that is located just one rung below the U.S. Supreme Court.

Moments later, the committee voted 10-9 to reject the Pickering nomination. The breakdown was along partisan lines, with Democrats opposing the nomination and Republicans supporting it. The Democratic majority remained in place on two additional procedural votes, in which Republican Senator Arlen Specter, of Pennsylvania, sought to advance the Pickering nomination to the Senate floor without a recommendation or with a negative recommendation.

Republicans wanted a vote on the Pickering nomination by the full Senate because Senate Minority Leader Trent Lott, a Mississippi Republican with close ties to the judge's family, had said he could secure enough Democratic votes there to win confirmation of one of the most controversial judicial nominees in decades. President Bush promoted the strategy on the eve of the vote, saying, "By failing to allow full Senate votes on judicial nominees, a few senators are standing in the way of justice." Lott could still seek a full Senate vote, but such moves are rarely successful.

The most extraordinary moment of the extraordinary hearing the preceded the Pickering vote came late in the day, after Republican Senator Jeff Sessions, of Alabama, had mounted a fierce defense of the nominee. Sessions criticized civil rights groups and fellow senators, particularly North Carolina Democrat John Edwards, for focusing attention on a 1994 incident in which Pickering intervened with the Justice Department on behalf of a man convicted of burning a cross in front of the home of an interracial couple. Though experts on judicial ethics have condemned Pickering's actions in the cross burning case, Sessions claimed the judge had done nothing wrong and argued that Pickering was the victim of a "Borking process" -- a reference to the successful battle to defeat the nomination of Ronald Reagan's most controversial judicial nominee, Robert Bork. Seeking to portray Pickering as a sensitive and engaged jurist, Sessions told the committee that the Mississippian had been "a leader for racial harmony," and asked that documents he said supported this view be included in the record of the proceedings.

Leahy agreed to do that, but then asked that another document be included -- a letter from the woman outside whose home the cross was burned. The victim of the attack wrote that, because of Pickering's actions in her case, "my faith in the justice system has been destroyed." She urged the committee to reject the judge's nomination to the 5th Circuit Court of Appeals, which reviews federal cases from Mississippi, Louisiana and Texas.

Leahy's bold gesture was one of many Thursday that saw Democrats on the committee challenge claims that Pickering was the victim of a "smear campaign" by liberal groups. Several senators defended so-called "outside groups" that built the case against the Pickering nomination. Senators Maria Cantwell, a Washington State Democrat, and Joe Biden, Democrat of Delaware, said they well understood the opposition of women's groups to a nominee whose record is one of strident opposition to a woman's right to choose. (Pickering led the fight at the 1976 Republican National Convention to put the GOP on record in opposition to the Supreme Court's Roe v. Wade decision.)

The most impassioned defense of groups that fought the Pickering nomination came from Senator Richard Durbin, an Illinois Democrat, who challenged conservative attacks on the NAACP. He contrasted the record of the group, which he described as a prime mover in historic civil rights battles that "changed America for the better," with that of the nominee, who Durbin noted "was not a champion of civil rights."

Recalling the Rev. Martin Luther King Jr's observation that the long arc of history bends toward justice, Durbin said he would not vote to confirm a nominee who was on the wrong side of the curve.

Supporters of Mississippi Federal Judge Charles Pickering's nomination to serve on the 5th Circuit Court of Appeals -- which is expected to be blocked this week by the Senate Judiciary Committee -- claim that he is the victim of a "liberal lynching." The spin says Pickering is a supporter of racial reconciliation who is supported by southern blacks but opposed by northern liberals. The truth is that Pickering has drawn more opposition from his home state and region than any judicial nominee in recent history.

To hear supporters of Pickering tell it, the only barrier to the judge's confirmation to serve on the 5th Circuit Court of Appeals is a "smear campaign" conducted by a bunch on "damn yankees." In fact, the claim goes, southern blacks are backing Pickering's nomination because they know him to be a consistent supporter of "racial reconciliation."

Nothing could be further from the truth. In fact, there is widespread opposition in Mississippi's African-American community and across the south to the nomination of a man who worked closely with segregationists throughout the 1960s and whose judicial tenure has been characterized by a deeply disturbing antipathy towards the Voting Rights Act and other civil rights protections. But in a Capitol where spin wins more frequently than not, the claim that liberal northerners are at odds with southern blacks when it comes to Pickering -- and the parallel claim that Pickering has been unfairly attacked by liberal activists who do not know his real record on race issues -- has become a central theme of right-wing commentators, Republican senators and Bush White House aides who still hope to salvage the nomination.

Pickering's backers are pulling out all the stops this week because they know his nomination is in serious trouble. For the first time since George W. Bush assumed the presidency, it is likely that one of his judicial nominees will be rejected by a Senate panel. If the ten Democrats on the Senate Judiciary Committee vote Thursday to block Bush's nomination of Pickering to serve on the Court of Appeals for Mississippi, Louisiana and Texas, the Bush administration and Pickering's chief Senate sponsor, Minority Leader Trent Lott, R-Miss., will have suffered a rare setback in a Senate where Democrats hold a bare majority but have been slow to challenge even the most conservative of the president's judicial nominees.

To be sure, national civil rights groups have played an important role in challenging the Pickering nomination. Revelations about Pickering's drafting of a memo on how to toughen Mississippi's ban on interracial marriage, his legal partnership with one of that state's leading segregationists, his votes as a Mississippi legislator to undermine Voting Rights Act protections, his ongoing opposition to the one-person, one-vote standard that underpins so much of civil rights law, and his efforts as a judge to get the Justice Department to soften the sentence of a convicted cross burner, as well as his many ethical missteps, have inspired widespread criticism of the nomination. In addition to the National Association for the Advancement of Colored People, the Leadership Council on Civil Rights, the Congressional Black Caucus and the Mexican American Legal Defense and Educational Fund, Pickering's prospects are opposed by the Society of American Law Teachers, the National Women's Law Center, the Alliance for Justice, People for the American Way, the National Council of Women's Organizations, the National Association of Social Workers, the AFL-CIO and dozens of other Washington-based advocacy groups.

That's what has Utah Senator Orrin Hatch, the most powerful Republican on the Judiciary Committee complaining about how Washington liberals are "lynching" Pickering. Mississippi Republican Charles Evers, a Bush delegate to the 2000 Republican National Convention, went even further. "All these so-called liberals are talking about what's good for so-called downtrodden Mississippi," Evers griped during a pro-Pickering news conference on the White House lawn, at which a handful of Pickering's African-American backers showed up. "It's not the NAACP down there (in Mississippi) that opposes Pickering. It's the Yankees up here."

Evers got that one wrong, as NAACP national board chair Julian Bond noted. The Mississippi State Conference of the NAACP is actively opposing Pickering's nomination. So are the state NAACP organizations in Louisiana and Texas -- the other two states that make up the 5th Circuit. "We hope to God that (Pickering) doesn't make it," explains L.A. Warren, chair of the Mississippi NAACP's Legal Redress Committee. "We know his past."

The Magnolia Bar Association, an organization of African-American lawyers in Mississippi, opposes the Pickering nomination. So too does US Rep. Bennie Thompson, the state's only African-American congressman. Thompson has been attacked in Washington and at home in Mississippi by conservative columnists -- especially writers for the Jackson Clarion-Ledger, a newspaper with a record as dubious as Pickering's when it comes to segregation fights. The critics claimed that, in opposing Pickering's nomination, the congressman had exposed himself as a pawn of northern liberals who was out of touch with his African-American constituents. These attacks were merely more of the pro-Pickering political spin, however. Last week, 31 African-American members of the Mississippi legislature signed a letter opposing Pickering's nomination.

The truth about the nomination is this: Rarely in the history of clashes over presidential nominations to the federal bench has a nominee faced the sort of homestate and regional opposition that has been directed at Pickering. Far from being a Washington phenomenon, the opposition to Pickering has gained traction because those who have fought southern racism longest -- and those who continue to oppose it with the greatest level of passion and personal commitment -- do not want this man sitting on one of the south's most influential courts. The Atlanta Journal-Constitution, one of the region's largest newspapers, and one of the few daily newspapers in the nation where the editorial pages are run by an African-American woman, summed up enlightened southern sentiment well.

"If judges like Pickering were appointed, American justice would be skewed beyond recognition," argued the Journal Constitution. "If Bush will not withdraw Pickering's nomination, the Senate Judiciary Committee should recommend against his confirmation. U.S. jurisprudence came too far in the late 20th century to allow it to lapse back into a time when Pickering's prejudices reigned."

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.

Editor's note: Below is David Corn's article, posted on March 4, 2002, that first broke news of the Bush-Enron oil deal. An update follows.

Did George W. Bush once have a financial relationship with Enron? In 1986, according to a publicly available record, the two drilled for oil together--at a time when Bush was a not-too-successful oil man in Texas and his oil venture was in dire need of help. Bush's business association with Enron, it seems, has not previously been reported.

In 1986, Spectrum 7, a privately owned oil company chaired by Bush faced serious trouble. Two years earlier, Bush had merged his failing Bush Exploration Company (previously known as Arbusto--the Spanish word for shrub) with the profitable Spectrum 7, and he was named chief executive and director of the company. Bush was paid $75,000 a year and handed 1.1 million shares, according to "First Son," Bill Minutaglio's biography of Bush. Under this deal, Bush ended up owning about 15 percent of Spectrum 7. By the end of 1985, Spectrum's fortunes had reversed. With oil prices falling, the company was losing money and on the verge of collapse. To save the firm, Bush began negotiations to sell Spectrum 7 to Harken Energy, a large Dallas-based energy firm owned mostly by billionaire George Soros, Saudi businessman Abdullah Taha Baksh and the Harvard Management Corporation.

The deal took months to work out. In September of 1986, Spectrum 7 and Harken announced they had reached an agreement. Spectrum 7 shareholders, under the plan, would receive Harken stock. Bush publicly said that Spectrum 7 would continue to operate in Midland, Texas, as a wholly-owned subsidiary of Harken and that he would become an active member of Harken's board of directors. As Minutaglio noted, the deal would give Bush about $600,000 in Harken shares and $50,000 to $120,000 a year in consultant's fees. It also would provide $2.25 million in Harken stock for a company with a net value close to $1.8 million.

As the details of the Spectrum-Harken acquisition--which Bush badly needed--were being finalized, Enron Oil and Gas Company, a subsidiary of Enron Corporation, announced on October 16, 1986, that it had completed a well producing both oil and natural gas in Martin County, Texas. An Enron Oil and Gas press release reported the well was producing 24,000 cubic feet of natural gas and 411 barrels of oil per day in the Belspec Fusselman Field, 15 miles northeast of Midland. Enron held 52 percent interest in the well. According to the company's announcement, 10 percent belonged to Spectrum 7. At that point, Spectrum 7 was still Bush's company. Harken's completion of the Spectrum 7 acquisition was announced in early November.

To spell it out: George W. Bush and Enron Oil and Gas were in business together in 1986--when Ken Lay was head of Enron. (Lay was named Enron chairman in February of that year.) How did this deal come about? Was this the only project in which Bush and Enron were partners? A call placed to the White House produced no response. Karen Denne, an Enron spokeswoman, says "I can't tell you anything about" that project, explaining Enron "sold all its domestic exploration and production assets about two years ago to EOG Reources" and probably did not retain records regarding that well. As for the possibility Spectrum 7 invested in other Enron ventures, she notes, "You're referencing something that happened in 1986. I can check, but we're pretty short-staffed now." Elizabeth Ivers, a spokeswoman for EOG Resources (formerly Enron Oil and Gas), says, "If we did have any records on that well, it would be nothing that we would share with the public. We do not disclose the details or specifics of who we have well interests with."

After the Enron affair began generating front-page headlines, Bush attempted to distance himself from Enron and Lay. In early January, the President claimed he and Lay had not always been close pals. "He was a supporter of [Texas Governor] Ann Richards in my run [against her] in 1994," Bush asserted, noting he did not get "to know Ken" and work with him until after he won that election. But campaign records show Lay donated three times as much money to Bush in that race as he did to Richards. Moreover, contacts between Lay and the Bush family pre-dated that campaign. In 1992, Lay chaired the host committee for the 1992 Republican convention in Houston, where Bush's father won his second presidential nomination. And Lay was a sleepover guest at the White House of President George H.W. Bush.

The Enron-George W. Bush connection goes back further than the President has suggested. But does that mean the relationship between the younger Bush and Lay stretches to the mid-1980s? The deal could have happened without contact between Lay and Bush. But most company heads would be interested to know that the son of the sitting vice-president had invested in one of their enterprises. If Lay had been aware of the partnership, that would not prove the two were pals or that Bush and Spectrum 7 had received undue consideration from Enron. But given Enron's penchant to use political ties to win and protect business opportunities, it is tough not to wonder if this Bush-Enron venture involved special arrangements. This is certainly one more Enron partnership that deserves scrutiny--especially since George W. Bush has yet to acknowledge it. The Spectrum-Enron deal is either an odd historical coincidence or an indication there's more to learn about the Bush-Enron association.

NOW FOR AN UPDATE ON THE BUSH-ENRON OIL DEAL:

On March 6, two days after this story was first posted, "The New York Times" ran on the front page of its business section a story headlined, "Bush Joined Unit of Enron In '86 Venture To Seek Oil." The article, written by Jim Yardley, essentially reported the facts noted above. Halfway into the piece, it noted, "A columnist in The Nation, the liberal political journal,...wrote about the deal this week in its online edition."

While the Bush White House did not respond to a request from "The Nation" for information, White House spokesman Dan Bartlett told the "Times" the President "has no recollection of this specific deal." Bartlett maintained that in 1986 Spectrum 7 was involved in more than 175 wells. Ted Collins Jr., who was president of Enron Oil and Gas at the time, told the newspaper that Bush did not have "a special relationship" with the company. Collins also asserted that Lay back then "wouldn't have known who Spectrum 7 was and that George W. Bush had anything to do with a company called Spectrum 7."

Since the story was originally posted, I have found records suggesting that Bush's Spectrum 7 had a second partnership with Enron. In May of 1985, a subsidiary of InterNorth, an Omaha-based energy company, announced the completion of a well in Martin County, Texas. According to "PR Newswire," the company said that Spectrum 7 owned an 18.75 percent interest in the well. (The rest was held by the InterNorth subsidiary.) The well, like the one mentioned above, was located at the Belspec Fusselman Field. That same month, InterNorth merged with Houston Natural Gas (HNG)--which gave birth to Enron. HNG/InterNorth changed its name to Enron in 1986, and the InterNorth subsidiary that had invested in the well with Spectrum 7 became part of Enron Oil and Gas. If Spectrum 7 and Enron Oil and Gas had retained their interests in the well, that would mean that Bush's oil company was in partnership with Enron before the deal reported above. Since Bush, according to his spokesperson, does not have a memory for such details and EOG Resources says it will not release any information about wells it has owned, it will be tough to confirm that the InterNorth-Spectrum 7 venture became an Enron-Spectrum 7 enterprise.

On another, more important, Enron-Bush point: Way back in 1994, I reported that Rodolfo Terragno, a former Argentine cabinet minister, had claimed that when he headed the Public Works and Services Department in 1988, George W. Bush, whom Terragno did not know, called him and pressured Terragno to award a pipeline contract worth hundreds of millions of dollars to Enron. (See http://www.thenation.com/doc.mhtml?i=20020204&s=corn.) Terragno, who said he resisted this and subsequent importuning, could not provide proof that the call had occurred. (How can you prove you were phoned by the son of the Vice-President?) Bush's aides denied Terragno's account. But it's worth taking a second look at those denials.

At the time I was pursuing the Terragno story, Bush was running for Texas governor, and I asked the campaign whether Bush had spoken to Terragno about the pipeline project and whether he had any business relationship with Enron. Bush aide Karen Hughes faxed me a terse statement: "The answer to your questions are no and none. Your questions are apparently addressed to the wrong person." An Enron spokesperson said, "Enron has not had any business dealings with George W. Bush, and we don't have any knowledge that he was involved in a pipeline project in Argentina."

The recent news about the 1986 Enron-Bush venture in the Belspec Fusselman Field undermines (to be polite about it) those 1994 statements from Bush and Enron denying any business relationship between the scion and the company. The existence of this oil partnership in 1986 (or one in 1985) has no bearing on the veracity of Terragno's tale. But it shows the credibility of the Bush gang and that of Enron deserve questioning when either one is talking about the other.