Editorial Memorandum: The Right's Revisionism on the Defeat of the Pickering Nomination


1 The figure of 80% unpublished appellate decisions nationwide pertains to the year 2001, according to the Administrative Office. Although the information supplied by the Administrative Office for appellate decisions does not identify how many of those unpublished decisions nationwide were affirmances and how many were reversals, the figures do show that of the total of 29,322 appellate decisions issued in 2001, 23,427 were affirmances.

2 According to the answers to the questionnaire that Judge Clement provided to the Judiciary Committee, she had never been reversed by an unpublished opinion; the information that Judge Clement provided was reported in the PFAW report in opposition to Judge Pickering's confirmation. Subsequent Westlaw research has revealed that she was reversed in one unpublished decision that was not included in her questionnaire.

3 On March 14, Senator DeWine also addressed the subject of Judge Pickering's reversed decisions. Like Hatch, he also carefully ignored all of these decisions by Pickering that had been reversed by unpublished rulings of the Fifth Circuit and expressly identified as matters of concern by those opposed to Pickering's confirmation.

4 The spelling of the parties' names is different in Judge Pickering's ruling and in that of the Fifth Circuit.

5 The other four cases discussed by Senator Hatch on March 14 were not mentioned in PFAW's report or in the questioning of Judge Pickering by senators who had expressed concerns about Pickering's record.

6 Law Professors' Letter of July 13, 2001. A full copy of the letter, which elaborates further on these criteria, is available from People For the American Way.

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