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

The Unpublished Reversals

Senator Hatch stated on March 14 that the Senate should consider the extent to which a nominee "will follow the law." In that respect, Judge Pickering's reversed cases, particularly those that were reversed by unpublished decisions of the Fifth Circuit, were of specific concern to Democratic Senators on the Judiciary Committee. According to the Fifth Circuit's own rules, unpublished decisions are used by that court to decide "particular cases on the basis of well-settled principles of law." Fifth Circuit Rule 47.5 (emphasis added). As we pointed out in our own report, 15 of the 26 cases in which Judge Pickering was reversed on appeal were through unpublished decisions of the Fifth Circuit, meaning that Judge Pickering's decisions had violated, failed to follow, or were inconsistent with "well-settled principles of law."

Despite the plain language of the Fifth Circuit's rule setting out the standard for unpublished decisions by that court, Senator Hatch attempted to use a statistical sleight of hand to suggest that the 15 decisions by Pickering that were reversed by unpublished Fifth Circuit decisions represented something other than his failure to follow "well-settled principles of law." Hatch stated that, according to the Administrative Office of the United States Courts, "80 percent of circuit court opinions are unpublished. Does this mean that we have an incompetent Federal district court bench nationwide that is unwilling or unable to follow well-settled principles of law? Of course not."

In fact, as Senator Edwards later pointed out, the 80% figure cited by Hatch includes affirmances as well as reversals. Moreover, the vast majority of all decisions on appeal nationwide are affirmed1. Thus, the statistic cited by Senator Hatch proves nothing about Judge Pickering's record or his reversals. In addition, the publication standards used by the 13 different federal circuit courts of appeal differ from circuit to circuit, each having its own local rules. A number of the circuits do not have publication rules like those in the Fifth Circuit that are dependent on whether the case is decided on the basis of "well-settled principles of law."

Senator Hatch also devoted some of his March 14 remarks to a numerical presentation intended to demonstrate that Judge Pickering's overall reversal rate has been lower than the national average for district court judges. But Hatch was "rebutting" an argument that had not been made. Opposition to Judge Pickering's confirmation was not based on Pickering's reversal rate, but on the nature of some of his reversals. Hatch either missed or misrepresented this point entirely.

Moreover, Senator Hatch ignored a particularly pertinent comparison in terms of Judge Pickering's reversals. While Pickering has been reversed fifteen times through unpublished decisions of the Fifth Circuit, Judge Edith Brown Clement, who was recently elevated to the Fifth Circuit after serving as a district court judge for a slightly shorter period than Pickering, was reversed only once in an unpublished opinion by the Fifth Circuit.2

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