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

Part Two

Turning to what he suggested would be a "close look" at Judge Pickering's reversed cases, Senator Hatch began by setting up a false premise. In discussing Pickering's reversals, Hatch stated, "I have heard ... that Judge Pickering's reversals were all in one of four areas: civil rights, voting rights, employment rights, or prisoners' rights. This is absolutely not the case." Senator Hatch did not say where he had "heard" this and, to our knowledge, no one had made any such claim regarding all of Pickering's reversals. In our own report, for example, we did not characterize all 26 reversals, but stated that as to the 15 cases in which Pickering was reversed through unpublished decisions of the Fifth Circuit, "[e]leven of those 15 cases in which Pickering violated 'well-settled principles of law' involved constitutional, civil rights, criminal procedure, or labor issues . . ." Senator Hatch's statement was actually consistent with PFAW's analysis, since he noted that "In fact, only 15 of [Pickering's] 26 reversals arguably fall into these areas [civil rights, voting rights, employment rights, or prisoners' rights]".

Far from taking a "close look" at the concerns raised about Judge Pickering's reversed decisions, Senator Hatch ignored the specific reversed decisions of Judge Pickering that had been the focus of attention by the judge's critics. In fact, a comparison of the reversed decisions raised with Judge Pickering by Senator Leahy and those analyzed in our report with the cases discussed by Senator Hatch on March 14 reveals that Senator Hatch studiously ignored every one of Judge Pickering's decisions discussed by Senator Leahy or in our report that was reversed by an unpublished decision of the Fifth Circuit. Thus, Senator Hatch never addressed any of the following reversed decisions by Judge Pickering, several of which Pickering was questioned about by Senator Leahy at his February 7, 2002 confirmation hearing:

    -- Rayfield Johnson v. McGee, No. 2:96CV291PG (S.D. Miss., May 13, 1998)

-- U.S. v. Marlon Johnson, No. 1:97-CV-571PG (S.D. Miss., Oct. 2, 1998)

-- Hepinstall v. Blunt, No. H90-0254(P)(N) (S.D. Miss., May 19, 1992)

-- Abram v. Reichhold Chemicals, No. 2:92-CV-122PR (S.D. Miss., Nov. 1, 1995)

-- Barnes v. S.W. Puckett, No. H88-0223 (P) (S.D. Miss., June 4, 1992)

-- United States v. Arthur Loper, No. 1:94-CV-560PR (S.D. Miss., April 21, 1995)

-- United States v. Nix, No. 1:91cr40PR (S.D. Miss., May 30, 2000).3

Although each of these cases is discussed in detail in the PFAW report (at 11-16), several warrant mention again here because they so clearly refute Senator Hatch's efforts to suggest that Pickering had not failed to follow "well-settled principles of law." For example, in Rayfield Johnson v. McGee, Pickering rejected an inmate's contention that a jail's blanket rule prohibiting inmates from receiving magazines by mail violated the plaintiff's First Amendment right to receive religious materials, although the Fifth Circuit had held otherwise in a similar case. In Rayfield Johnson, after what Pickering called a "full review," Pickering accepted a magistrate's conclusion that the jail's rule was justified to prevent fire hazards and the clogging of plumbing. The Fifth Circuit reversed, citing its own published decision more than ten years earlier in Mann v. Smith, 796 F.2d 79 (5th Cir. 1986), which was not even mentioned by Pickering or the magistrate. Rayfield Johnson v. Magee, No. 98-60556 (5th Cir., Feb. 15, 2000), slip op. at 3. In Mann, the court struck down a similar jail prohibition on the receipt of magazines by pre-trial detainees, rejecting fire hazard and plumbing justifications very similar to those accepted by Pickering and the magistrate. Mann, 796 F.2d at 82. Senator Leahy had questioned Pickering and expressed concern about this case at the February 7 hearing.

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