Friday, August 06, 2004

Pickering and Racial Relations

This should make the news. The Fifth Circuit issued a decision today in a racial desegregation case -- and the opinion was written by Charles Pickering.

Quick recall: Pickering was placed on the 5th Circuit via a recess appointment by Bush. He had been blocked by Senate Democrats, who alleged that he had supported a "cross-burner" in a particular case, even though his conduct merely amounted to inquiring why the prosecution had treated the defendants inequitably: They made a deal with the real cross-burner that involved no jail time at all, but sought 7.5 years for an less-culpable accomplice.

Back to today's opinion, the history of which is long. It began with a lawsuit filed in 1965. When Louisiana public schools were desegregated, a private segregated school (Bowling Green) was set up in their place. (Shame!) As is apparently the custom in Louisiana, the state provided support to the Bowling Green school in the form of equipment, books, etc. The court ultimately forbade any state assistance to Bowling Green.

In a parallel case -- called Brumfield -- the court forbade all state defendants from supporting private segregated schools. It also set up a process whereby private schools could prove that they were not segregated, thus becoming eligible for state assistance. This is called Brumfield certification.

Back to Bowling Green. It never tried to become Brumfield-certified until 1999. That was when Louisiana changed a college scholarship program so that students had to come from a Brumfield-certified school in order to qualify. Bowling Green suddenly decided that it was no longer interested in being segregated. It didn't succeed until 2003, when it had enrolled its first black student and applied to the court to have the injunction against state aid lifted.

The district court held against Bowling Green, noting that it was still basically segregated even if it had somehow became Brumfield-certified. So the issue before the Fifth Circuit was this: Is it enough to be Brumfield-certified to get state aid?

The Fifth Circuit said no. Here are some quotes from Pickering's opinion, which upheld the district court:
This case demonstrates the progress we have made, yet the distance we have to go to eliminate the vestiges of past racial discrimination.

* * *
In a perfect society all of the vestiges of discrimination and segregation would disappear and all people would be treated equally without regard to race, color of skin, or ethnicity. We do not live in a perfect world. Therefore, we must deal with the facts as presented. This Court is committed to enforcing Brown v. Board of Education, 347 U.S. 483 (1954).

* * *

We note Bowling Green’s argument that it cannot compel African Americans to join its faculty or enroll as students. It could be that an African American teacher might be reluctant to teach in a private academy, previously all white and created to preserve segregation, for less money than a teacher can make in the public school sector. Nevertheless, Bowling Green must make a good faith effort to attract African American faculty.

* * *

Before the injunction is dissolved or modified, Bowling Green is required to demonstrate that its efforts are not just to get its graduates qualified for the TOPS program. Bowling Green cannot change the past, but it must do what it can, in good faith, to eliminate the past vestiges of discrimination. Bowling Green must demonstrate over a reasonable period of time, a good faith commitment to eliminating the vestiges of past discrimination and to make meaningful progress toward becoming a fully integrated non-discriminatory school with respect to all facets of its operation.
So there you go, Pickering's first school desegregation case as a federal judge.


Anonymous Anonymous said...

I bet that the losing party here is thinking, "That darn Judge Pickering was at least subconsciously motivated to vote against us by the perception that if he voted for us, it would be used against him in this ongoing confirmation battle." While I don't pretend to know what Judge Pickering was thinking, that is a reasonable concern for a lay observer to have, especially if the observer is the losing party.

And this is one of the reasons why recess appointments to Article III positions are such a very bad idea, and were probably not contemplated by the founders -- such appointments go against the very purpose of life-tenured judgeships, leaving people to wonder whether rulings were motivated consciously or subconsciously by politics.

Sam Heldman

6:05 AM  
Blogger Stuart Buck said...

Well, it was a unanimous decision by three judges, including the famously conservative Judge Smith and the moderately liberal Benavides (who was mentioned as a possible Gore pick for the Supreme Court). I doubt that both of them skewed their votes so as to aid Pickering's career.

8:12 AM  
Anonymous Anonymous said...

You do recognize that your comment is non-responsive to mine, I hope. The concern that Judge Pickering's vote may have been swayed by its possible effects on his confirmation prospects does not depend on how other panel members voted.

Sam Heldman

8:30 AM  
Blogger Stuart Buck said...

I do see your point, but it makes no practical difference in a 3-0 case. Even if one thinks that Pickering really wanted to vote for the other side, there were still 2 votes to uphold the district court. The school would have lost no matter how Pickering voted.

Now if this were a 2-1 case, with the recess appointee in the majority, your concern would be more relevant.

9:15 AM  
Blogger Stuart Buck said...

Also, I'm not sure that there's any way to eliminate the concern that appellate judges' decisions might occasionally be motivated by politics. Still speaking in terms of career prospects, appellate judges might calculate their votes and/or opinions in terms of whether it would harm them at a future Supreme Court confirmation hearing. As Easterbrook recently said, "any judge who claims not to fancy a position on that Court is a liar . . . ." (This motivation is stronger for some judges than for others, of course.)

And then there is just the plain fact that in some cases, judges are going to rely instinctively on their political views anyway, regardless of whether they have tenure. To my mind, this is may be more objectionable: They are looking to their own political prejudices, rather than to Congress's.

9:24 AM  
Anonymous Anonymous said...

Setting aside the merits of recess appointments for Article II judges, Sam Heldman's argument that such appointments "were probably not contemplated by the founders" is severely uncermined by longstanding historical practice. President George Washington made nine recess appointments of Article III judges, including a Chief Justice of the Supreme Court. In all, over 35 presidents have made recess appointments, many of which were subsequently confirmed by the Senate.

I share Mr. Heldman's misgivings about the practice, but one cannot argue it is without longstanding precedent.

Jonathan H. Adler

12:37 PM  
Anonymous Anonymous said...

Definitely getting far afield from anything about which I might claim expertise, but I think that Pres. Washington's exercise of recess-appt power says less about the "original meaning" of the Constitution than might be supposed. It's completely unsurprising that the First President would ASSERT this power given the ambiguity of the Constitution on the topic and given the natural Presidential tendency to want to expand Presidential power; and it's completely unsurprising that he "got away with it," given that he was the beloved George Washington. But this doesn't mean that the writers of the Constitution thought about the problem, or intended that such appointments would be permissible, as they were writing. Interesting question, as to which I do not claim to have the historical/mind-reading answer.

Thanks for the interesting discussion. Sam

1:32 PM  

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