Editorial Memorandum: Opposition to Judge Pickering and Charges of Irresponsiblity and Race-Baiting

It has been charged that Pickering's opponents have not focused on his judicial record, his judicial philosophy, and his qualifications.

The Facts

At least four organizations opposed to Judge Pickering's confirmation - People For the American Way, NARAL, the National Women's Law Center, and the Alliance for Justice - have issued reports explaining their opposition. As is made abundantly clear in the lengthy reports issued by those organizations, the opposition to Pickering's confirmation focuses precisely on his qualifications, judicial philosophy, and the quality of his judicial work.

In particular, those reports address Judge Pickering's long public record, first as a Mississippi state Senator and, since 1990, as a federal district court judge, the very positions that reflect most particularly on his qualifications as well as on his view of legal principles and his approach to judging.

As those reports demonstrate, Judge Pickering's record is one of insensitivity and hostility to key principles and laws protecting the civil rights of minorities, women, and all Americans. By this we mean that as a state Senator and as a federal judge, Pickering has said or done things to undermine those key principles and laws, threatening to harm the people they are meant to protect.

For example, the reports pointed out that, as a judge, Pickering has criticized the fundamental "one-person one-vote" principle recognized by the Supreme Court under the 14th Amendment. Also, he has suggested that large deviations from equality in drawing legislative district lines, which the Supreme Court has held presumptively unconstitutional, were "relatively minor" and "de minimis." And, as a judge, Pickering has also criticized or sought to limit important remedies provided by the Voting Rights Act. In addition, in a number of cases involving claims of employment discrimination, Pickering has inserted severe criticisms of civil rights plaintiffs and the use of civil rights statutes, disparagingly stating that the courts "are not super personnel managers charged with second guessing every employment decision made regarding minorities." (See, e.g., Report of People For the American Way Opposing the Confirmation of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit ["PFAW Report"], at 4-7; Report of the Alliance for Justice: The Case Against the Confirmation of Charles W. Pickering, Sr., to the U.S. Court of Appeals for the 5th Circuit ["AFJ Report"], at 5-12.) This concern about Pickering's expressed hostility toward Title VII plaintiffs was reinforced by the responses he gave to Senator Kennedy when questioned about this at his February 7, 2002 hearing. See infra.

The reports also noted that, as a Mississippi state Senator, Pickering supported voting-related measures that helped perpetuate discrimination against African Americans. For example, in 1973, Pickering voted for a partial Senate redistricting plan that harmed minority voting rights by continuing to provide for county-wide voting in a populous county rather than creating single-member districts. In 1975, Pickering voted for a broader Senate-passed measure that simply provided for county-wide voting. Also in 1975, when Congress was to renew Section 5 of the Voting Rights Act mandating pre-clearance of voting changes in jurisdictions with a history of discrimination like Mississippi, some legislators opposed it. Pickering co-sponsored a Mississippi Senate resolution calling on Congress to repeal the provision or apply it to all states (which would have in effect gutted Section 5 of the Voting Rights Act) regardless of their discrimination history. Pickering's Senate record on voting rights issues is particularly relevant, for it plainly foreshadowed his actions as a judge concerning these issues. (See, e.g., PFAW Report at 8-9; AFJ Report at 4.)

The reports of NARAL and the National Women's Law Center in particular examined Pickering's long-standing opposition to reproductive freedom for women, including his support as a state Senator for a resolution calling for a constitutional convention to propose an amendment to ban abortion. Since Pickering, as a judge, has not had a case come before him dealing with women's reproductive freedom, but the Fifth Circuit has heard at least a dozen such cases since 1992, Pickering's record on these important issues is pertinent in considering how, as a judge, he would approach cases that raise them.

In addition to the above matters, Pickering's approach to judging has also been addressed specifically in the concerns that our organizations have voiced about his denial of access to the courts for certain litigants. For example, the PFAW Report contains a separate section entitled "Pickering's disturbing record regarding access to justice for some litigants." This section of the Report discusses specific cases decided by Judge Pickering (in addition to others discussed elsewhere in the Report) in which he has shown a troubling propensity to make it more difficult for some litigants to obtain access to justice. This is particularly true with respect to less powerful litigants, such as plaintiffs raising civil liberties or civil rights claims and prisoners. See PFAW Report at 18-20. The Alliance for Justice Report contains a similar examination of this aspect of Pickering's judicial record, noting also that Pickering frequently injects into his opinions his personal views of the law, the losing party or plaintiffs. These matters bear not only on his "approach to judging" but on his judicial "temperament." Indeed, the Alliance for Justice concluded that Pickering's "displays of judicial intemperance suggest a more fundamental unwillingness to give fair consideration to certain categories of claims." See AFJ Report at 11-15. The NARAL Report also examined Pickering's "approach to judging," including his demonstrated opposition to the role of an independent federal judiciary and its protection of individual rights. (See NARAL Report at 9-12.)

The quality of Pickering's judicial work has also been a specific focus of concern among our organizations and indeed one of the reasons for the conclusion we have drawn that he should not be elevated to the Fifth Circuit. For example, the PFAW Report contains an entire section entitled "Judge Pickering's troubling record of reversals in the Court of Appeals." As that report makes clear, in 15 of the 26 cases in which Pickering has been reversed by the Fifth Circuit, it has been through unpublished decisions by the court of appeals. According to Fifth Circuit rules, unpublished decisions are used to decide "particular cases on the basis of well-settled principles of law." Eleven of those 15 cases in which Pickering, according to the Fifth Circuit, violated "well-settled principles of law" involved constitutional, civil rights, criminal procedure, or labor issues. This of course raises concerns not only about the "quality" of Pickering's judging, but also about his "approach to judging." Moreover, as has been pointed out in terms of Pickering's reversals, Pickering is one of two district court judges within the Fifth Circuit nominated by President Bush to that court of appeals. The other, 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 never reversed in an unpublished opinion by the Fifth Circuit, according to the information that she provided to the Senate. (See PFAW Report at 12-17.)

Democratic senators have also been criticized in media reports, but at Pickering's confirmation hearing on February 7, 2002, Democratic members of the Judiciary Committee specifically questioned Pickering at length about his record, his qualifications, his approach to judging, and the quality of his judging. In fact, not only did the hearing fail to resolve troubling issues that our organizations and others had raised about Judge Pickering's record, particularly with respect to civil rights and reversals of his decisions by the court of appeals, but questioning by senators also revealed several important new and disturbing ethical and related issues involving Pickering's conduct as a federal judge.

For example, Senator Kennedy questioned Pickering about his decisions in employment discrimination cases, and particularly about the disparaging remarks he has made about such cases and the plaintiffs who bring them. In fact, it was in response to Senator Kennedy's specific questioning on this troubling issue bearing on Pickering's "approach to judging" that Pickering underscored his predisposition against Title VII plaintiffs. In astonishing testimony, Pickering stated his belief that the EEOC through its own mediation efforts resolves most of the "good" job bias cases and that cases that come to court generally have already been investigated by the EEOC and determined to have no basis.

This was a disturbing statement by a federal judge. Essentially, Pickering admitted that when a case of employment discrimination brought under Title VII comes before him, he is predisposed to believe that it does not have merit because he thinks that, if it did, the EEOC would have taken care of it.

Not only is this totally improper as an approach to judging, but the premise on which Judge Pickering's preconception rests is plainly inaccurate. The EEOC is overburdened, with a backlog of nearly 35,000 cases. In addition, almost two-thirds of employers decline to participate in EEOC mediation of discrimination complaints, leaving employees with little option but to go to court. And the EEOC is so lacking in resources that it typically litigates only 3.5 percent of the charges in which it finds reason to believe discrimination has occurred. Because of these delays and limitations, victims of discrimination often obtain "right to sue" letters from the EEOC after months of EEOC inaction, enabling them to pursue their claims in court rather than have their claims languish in administrative limbo. Indeed, federal law specifically allows victims of discrimination to do this. This misguided predisposition against discrimination cases reflected in Judge Pickering's opinions and testimony, highlighted by our reports and by Senator Kennedy's questioning, speaks volumes about Pickering's qualifications as a judge and his approach to judging.

At the February 7 hearing, Senator Kennedy also questioned Judge Pickering about his Senate record on voting rights issues and his decisions as a judge in voting rights cases, and how he has approached these critical matters. Other senators also questioned Judge Pickering about his qualifications and his approach to judging. For example, in light of Pickering's staunch pre-judicial record in opposition to reproductive choice for women, both Senators Feinstein and Cantwell questioned Pickering about how he would approach these issues if confronted with them as a judge. (As previously noted, Pickering has not to date had a case before him raising such matters.)

Senator Feingold questioned Pickering about his conduct last October in calling a number of lawyers who practice before him, or who may appear before him in the future, to solicit letters of support for his confirmation. Pickering admitted that he not only had called a number of attorneys with that request, but also that he asked that those letters be sent directly to him. He testified that he read the letters before sending them on to the Justice Department.

Regardless of whether Pickering intended any coercion, this solicitation activity by a sitting judge violates canons of professional responsibility requiring the avoidance of even an appearance of impropriety. It is disturbing that in his testimony, Judge Pickering appeared not to recognize the potential coerciveness and impropriety of a federal judge making such requests of lawyers who know they may appear before him in the future. Even if he is rejected for the Fifth Circuit, Pickering will remain a federal district court judge.

Steven Lubet, an ethics expert cited by Legal Times, suggested that Pickering's actions involve a kind of "unintentional coercion" similar to that which can arise when judges solicit lawyers for charitable contributions, which is forbidden by the Code of Conduct for U.S. judges. Subsequent to the hearing, legal ethics expert Stephen Gillers of New York University similarly concluded that Pickering's conduct violated ethical standards. Senator Feingold's questioning thus focused very clearly on Pickering's qualifications.

Senator Durbin questioned Judge Pickering about certain testimony that he gave before the Committee in 1990 at his district court confirmation hearing concerning the Mississippi State Sovereignty Commission, testimony that has since been revealed to be inaccurate. This matter is addressed in more detail below, but Senator Durbin was plainly concerned that Pickering has been less than forthcoming with the Committee, a concern relevant to his qualifications. Senator Durbin as well as Senator Edwards questioned Judge Pickering about his handling of a cross-burning case, in particular about the extraordinary lengths to which he had gone to get one defendant a lighter sentence. This too is discussed in greater detail below; we make the point here to establish the concern of these Senators about Pickering's conduct as a judge, and thus his qualifications for elevation to the Court of Appeals.

In his questioning of Judge Pickering at the February 7 hearing, Senator Schumer focused particularly on Pickering's judicial philosophy and approach to judging. Senator Schumer asked Judge Pickering to explain how the Committee could be assured that he would follow the law, particularly given his penchant for injecting his own views into cases.

Committee Chair Patrick Leahy focused on the quality of Pickering's judging and questioned him specifically about cases in which he was reversed by the Fifth Circuit. In particular, Senator Leahy was concerned about Pickering's reversed decision in Rayfield Johnson v. Forrest County Sheriff's Department. In that case (discussed in the PFAW Report at 13), a prisoner made a First Amendment claim against a jail's blanket policy of denying access to magazines by mail. Pickering turned the case over to a magistrate for a recommendation, and the magistrate ignored or missed a Fifth Circuit decision, Mann v. Smith, that was the controlling precedent striking down such policies as violating an inmate's First Amendment rights. Functioning much like an appellate judge, Pickering reviewed the magistrate's recommendation and approved it, but did not even consider the Mann case. In other words, the magistrate missed or ignored a controlling Fifth Circuit precedent, one involving a First Amendment violation by the jail, and Pickering relied entirely on the magistrate, conducted no research of his own, and essentially rubber stamped what the magistrate had recommended. At the hearing, Pickering's response was that he and the magistrate had "goofed" in this case. This was only one of a number of such "goofs" -- failure to follow controlling law -- as the various reports issued about Pickering's judicial record demonstrate.

Indeed, even more troubling were Judge Pickering's responses to Senator Leahy's questions about another Fifth Circuit reversal for failure to follow "well-settled principles of law" in Abram v. Reichold Chemicals. In that case, Judge Pickering threw out of court permanently the claims of eight "toxic tort" plaintiffs because they had not complied with a case management order. (See PFAW Report at 15.) The decision was reversed because Judge Pickering had violated settled law that a trial judge must first try to use lesser sanctions before permanently throwing someone out of court. Senator Leahy was particularly concerned because the Fifth Circuit had reversed Pickering based on the same legal principle three years earlier, in another case in which Pickering had abused his discretion by permanently throwing out a case without trying other alternatives. Judge Pickering responded that he felt he had acted properly, although the Fifth Circuit clearly disagreed.

In short, it is clearly inaccurate to claim that the criteria relevant to Pickering's confirmation have been largely ignored, either by organizations opposed to his confirmation or by the Democrats on the Judiciary Committee.

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