- The Washington Times - Friday, February 15, 2002

A legal-ethics expert asked by Republicans on the Senate Judiciary Committee to review a cross-burning case says that District Court Judge Charles W. Pickering's behavior in the matter deserves praise, not criticism.
Democrats charged that the judicial nominee for the U.S. Court of Appeals for the Fifth Circuit behaved unethically in determining a crime sentence in the case involving the burning of a cross in the yard of a racially mixed couple.
Michael Krauss, a professor of legal ethics at George Mason University School of Law, reviewed the 1994 Mississippi case at the request of Senate Judiciary Committee Republican staffers. Mr. Krauss sits on the Board of Governors of the Virginia state bar's education section and said he is frequently called on to discuss ethical issues with members of the bar and bench.
Judge Pickering's judicial behavior "is not unethical or in any way unbecoming of a member of the judiciary," Mr. Krauss said in a written review.
Liberal organizations oppose the nomination of Judge Pickering and are attempting to label him a racist. Democrats attacked Judge Pickering during his second confirmation hearing last week and said he engaged in unofficial communication to reduce the maximum sentence in the case.
Judge Pickering said he objected to the prosecution's sentencing recommendations on the grounds that it was disproportionate, and redacted documents released yesterday by the Judiciary Committee seem to back his asssertion.
A 1994 Justice Department memo said Judge Pickering "immediately took issue with the 'severe disparities'" in the sentencing.
Three men were accused of the federal offense, but the prosecutor cut a deal with two offenders, who were then put on probation and sentenced to community service one had a history of racism and had fired a gun into the home on a previous occasion, and the second had "low mental capacity," according to the memo.
The third suspect was a first-time offender, but the prosecution recommended more than seven years in prison. Judge Pickering instead sentenced him to 39 months in jail and called his actions "heinous," "reprehensible," "despicable," and "dastardly."
Judge Pickering asked federal prosecutors to inform their superiors at the Justice Department of the discrepancy in their sentencing recommendations. He also complained about the sentencing to a friend in a different branch of the department, but there is no evidence that confidential information was revealed, the review said.
"Judge Pickering was clearly concerned that no rational basis had been demonstrated for the widely disparate sentencing recommendations … ," the review said.
Judge Pickering's actions are described as a "determined effort" to "discharge, faithfully and competently, his judicial duties under our Constitution. I believe Judge Pickering deserves praise for his efforts," the review said.
Senate Minority Leader Trent Lott, Mississippi Republican, did not specifically identify Mr. Krauss' review, but said the Senate is receiving letters that should address Democrats' concerns.
"I believe any questions about him will be properly and sufficiently answered and we will get him out of committee," Mr. Lott said.
Sen. Charles E. Schumer, New York Democrat, is the only member of the Judiciary Committee to make public his intention to vote against Judge Pickering. Mr. Schumer cited the cross-burning case as the primary reason for his opposition.
A senior Republican aide said Democrats are underestimating the political consequences of derailing the nomination.
"It will be a political boomerang with a razor-blade tip that will come back at them very hard," said the aide, who refused to detail what Republicans are plotting.
Meanwhile, Sen. Joseph R. Biden Jr., Delaware Democrat, is blocking two Transportation Department appointees responsible for enforcing airline-security regulations, in exchange for getting support for an Amtrak security bill.
The nominees are Emil H. Frankel, for assistant secretary for transportation policy and Jeffrey Shane, for associate deputy secretary.


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