Today’s New York Times has what I found an illuminating piece on the Pickering nomination. On balance, I’d say it’s pro-Pickering. At least it frames the issue largely the way Pickering’s defenders have framed it — a judge outraged by prosecutorial misconduct and pushing hard to avoid a miscarriage of justice — rather than the alternative view that an old Dixiecrat who bolted from the Democratic Party when it integrated didn’t want anyone punished too harshly for just burning a cross in the front lawn of the house of a biracial couple. (The story even repeats as evidence in Pickering’s favor the assertion that Pickering “testified against the Klan” in 1967, as if obeying a subpoena and not perjuring oneself were some sort of heroic act.) The Washington Post has a somewhat harsher piece covering roughly the same ground.
Actually, I find the story fairly compelling on the facts: that is, I think that justice was on balance served by Pickering’s intervention, though his conduct toward the prosecutors betrayed something less than a judicial temperament. It seems that the defendant in question, the only one who refused to plead guilty, was facing a much harsher sentence than the actual ringleader, who sensibly took a plea and testified against his accomplices. As is unfortunately not unusual, the prosecution tried to tell a story making the defendant at trial look more central to the affair than he actually was, downplaying the role of the person who by then was “their” witness. I want judges to be offended by hanky-panky from the prosecution side, and want them to try to avoid the gross injustice that can come from mandatory-sentencing laws.
But doesn’t this strike anyone but me as a rather odd thing to say in defense of a “conservative” — in the corrupt contemporary sense of that term — judicial nominee? It’s the conservatives who have been making political hay for a generation by trashing soft-on-crime liberal judges. It’s the conservatives who have steadily tilted the sentencing process to remove discretion from the judge and hand it to the prosecutors.
It’s a fact of the contemporary federal criminal process that, as the saying goes, the defendant has to pay for exercising his right to a jury trial. That’s the way the system works. Admit you’re guilty, spare the government the expense of a trial, and say what you’re told to say against your co-conspirators, and you get a break. If you insist on being a jerk, and the jury says you’re guilty, you’re going to have a lot of time to think about it afterwards.
That, and its state-level equivalent, makes life easier for prosecutors and investigators. Waving heavy mandatory (or guideline) sentences, the government can often get pleas from people who might have beaten the case at trial but don’t want to bet twenty years on it. Those same defendants can also frequently be induced to testify to what they know, and sometimes what they don’t know or know to be false, about the guilt of others. That’s what happened in the Tulia cases, and ten thousand others you and I never heard of. In lots of other cases, guilty people who would otherwise have gotten off are doing time because the rules now favor the prosecution.
You can argue that the current system, the one against which Judge Pickering rebelled by browbeating the prosecutors into dropping some of the charges after the jury had already brought in a guilty verdict, is a rotten system. Or you can argue that it’s exactly what the country needed to break the wave of lawlessness that was threatening to engulf it.
What you can’t do, it seems to me, without gross self-contradiction, is say that the system is a good system and that Judge Pickering was right to defy it. And yet that seems to be the position of the President and the Republicans in the Senate.
That’s where the racial context of the case comes back in. If this had been a routine crack-distribution case, with the defendant some minor player facing a long mandatory because he didn’t have any useful information or any assets to forfeit while the big guy got a pass for betraying his subordinates and coughing up some cash, I very much doubt Judge Pickering would have been equally outraged. (This seems to have been the only case in Judge Pickering’s career that excited his sense of fair play in just this way; it certainly wasn’t the only case where someone got a break for copping a plea and someone less guilty got hammered for going to trial.) Moreover, if he had intervened in this way in a crack case, I very much doubt that the President would have found him worthy of elevation to the Circuit Court of Appeals — even if his son is a Congressman — or that the Republicans in the Senate would be praising him for his exercise of judicial independence.