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

Part Four

On March 14, Senator Hatch said of the Watkins case, "Is this a reversal due to failure to follow 'well-settled' law and, therefore, indicative of hostility to voting rights? The answer to that is no." In fact, as the Fifth Circuit's ruling plainly demonstrates, the district court had failed to follow clear Fifth Circuit precedent in failing to state the reasons for not awarding attorneys' fees based on the lawyers' customary rates.5

In short, in contrast with Judge Clement, Judge Pickering was reversed 15 times by unpublished decisions of the Fifth Circuit, meaning that Pickering's decision was inconsistent with "well-settled principles of law." We discussed in our report the most troubling of those reversals, and Pickering was also questioned at his February 7 confirmation hearing about a number of them. Senator Hatch's studious failure to address any of those specific unpublished reversals while purporting to analyze Pickering's record of reversals further confirms that the concerns that were raised about those decisions were well-founded.

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