Opposing The Confirmation of Charles W. Pickering, Sr. to The United States Court Of Appeals For The Fifth Circuit

Endnotes

[1] See 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.

[2] Transcript of Nominations Hearings, Senate Committee on the Judiciary, Oct. 18, 2001 (hereafter "2001 Hearings"), at 40-41.

[3] See, e.g., Theriot v. Parish of Jefferson, 185 F.3d 477, 489-90 (5th Cir. 1999); Clark v. Calhoun County, 88 F.3d 1393 (5th Cir. 1996).

[4] See Perkins v. Mathews, 400 U.S. 379, 385 (1971). Accord, Lopez v. Monterey County, 519 U.S. 9, 29 (1996); City of Lockhart v. United States, 460 U.S. 125, 129 n.3 (1983)(noting that district court “lacked jurisdiction to pass on the discriminatory purpose or effect” of proposed changes); United States v. Board of Supervisors, 429 U.S. 642, 645-47 (1977)(per curiam).

[5] See Seeley v. City of Hattiesburg, No.2:96-CV-327PG (S.D. Miss., Feb. 17, 1998) (slip op. at 12); Johnson v. South Mississippi Home Health, No. 2:95-CV-367PG (S.D. Miss., Sept. 4, 1996)(slip op. at 10).

[6] “Litigation NAACP Chapter: Discrimination Suit Against Dixie Co-Op is Precedential,” Electric Utility Week (Feb. 7 1994) at 5.

[7] Id.

[8] Id.

[9] Id.

[10] See Journal of the Senate of the State of Mississippi, Regular Session Commencing January 2, 1973 at 253 (vote on S.B. No. 1701); “Waller Signs Bills Reshuffling Districts,” The Clarion Ledger (Feb. 10, 1973); F. Parker, Black Votes Count 119 (1990).

[11] See Journal of the Senate of the State of Mississippi, Regular Session Commencing Jan. 7, 1975 at 1238, 1654 (vote on and approval of S.B. No. 2976); “Panels Working on 2 Measures to Reapportion,” The Clarion Ledger (March 6, 1975); F. Parker, Black Votes Count 119-20 (1990).

[12] Journal of the Senate of the State of Mississippi (1975) at 1241, 1242. Compare Fairley, supra, 814 F. Supp. at 1336, 1338 (complaining about court-approved reapportionment that is based on “[c]ensus workers” lines and that does not sufficiently consider “inconvenience to voters” and efforts to “avoid disruption”).

[13] One of those decisions was the Supreme Court’s ruling in Connor v. Finch, 431 U.S. 407 (1977), which Pickering as a judge has sought to limit, as discussed above.

[14] See 1975 Senate Journal at 124 (S.C.R. No. 549); F. Parker, Black Votes Count 190 (1990).

[15] See Journal of the Senate of the State of Mississippi, Regular Session Commencing Jan. 6, 1976 at 278, 1918 (S.B. Nos. 2732, 2733); Journal of the Senate of the State of Mississippi, Regular Session Commencing Jan. 2, 1979 at 182, 1911 (S.B. No. 2802); “Open Primary Bill Passes 1st Hurdle,” The Clarion-Ledger (March 16, 1976); F. Parker, Black Votes Count 35, 62-63 (1990)

[16] Confirmation Hearings on Federal Appointments: Hearings Before the Committee on the Judiciary of the United States, 101st Cong., 2d Sess. (1990) (hereafter “1990 Hearings”), at 656, 657.

[17] Id. at 656.

[18] Id. at 657.

[19] See Journal of the Senate of the State of Mississippi, Regular Session Commencing January 4, 1972, at 1165 (vote on H.B. No. 1294); Journal of the Senate of the State of Mississippi, Regular Session Commencing January 2, 1973, at 948 (vote on H.B. No. 1273). In 1973, the measure was vetoed by the Governor.

[20] Loving v. Virginia, 388 U.S. 1 (1967).

[21] Ratcliff v. State, 107 So.2d 728 (Miss. 1958).

[22] See Laws of the State of Mississippi (1960), at 356-57, listing Mississippi S.B. No. 1509 (approved Feb. 24, 1960), amending Section 2000, Mississippi Code of 1942.

[23] Perez v. Sharp (also called Perez v. Lippold), 198 P.2d 17 (CA 1948).

[24] The author of the dissent in the California case claimed that there was “not only some but a great deal of evidence to support the legislative determination (last made by our Legislature in 1933) that intermarriage between Negroes and white persons is incompatible with the general welfare and therefore a proper subject for regulation under the police power.” Perez, 198 P.2d at 45.

[25] 2001 Hearings at 64.

[26] 1990 Hearings at 652.

[27] 2001 Hearings at 64.

[28] In other cases apparently not considered by the Fifth Circuit on appeal, Judge Pickering has clearly misinterpreted Supreme Court precedent on several constitutional issues. In one case, Pickering wrote that the Supreme Court had “acknowledg[ed]” that “the Miranda warning is not a constitutional mandate” in Withrow v. Williams 507 U.S. 680, 690 (1993). See Barnes v. Mississippi Dep’t of Corrections, 907 F.Supp. 972, 975 (S.D. Miss. 1995). In fact, the Court clearly did not so acknowledge this in Withrow, but simply assumed the proposition for purposes of evaluating the petitioner’s arguments, and then rejected those arguments in any event. Withrow, 507 U.S. at 690. In fact, the Supreme Court recently reaffirmed that the Miranda warning is a constitutional mandate. See Dickerson v. United States, 530 U.S. 428 (2000).

Judge Pickering has also expressed troubling views about judicial precedent generally. In one case concerning the Fourteenth Amendment he stated, “While judicial interpretations should always begin, and in the opinion of this Court should usually end, after determining the literal meaning of a constitutional provision or statute, nevertheless, when judicial precedents have gone beyond literal meaning, the past legislative as well as judicial history should be considered as well as the potential consequences and effect of what another judicial extension would entail.” Randolph v. Cervantes, No. 2:95-CV-259PG (S.D. Miss., Dec. 30, 1996) (slip op. at 12). This has potentially disturbing implications for recognized constitutional protections, such as the right of privacy, that do not appear “literally” in the Constitution.

[29] The spelling of the parties’ names is different in Judge Pickering’s ruling and in that of the Fifth Circuit.

[30] See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)(unanimously reversing Fifth Circuit decision making it significantly more difficult to prove intentional employment discrimination); Houston Lawyers’ Association v. Attorney General, 501 U.S. 419 (1991)(reversing Fifth Circuit decision ruling that Section 2 of the Voting Rights Act did not apply to state district judge elections).

[31] A news article about Pickering’s speech suggests that in delivering the address Pickering went even further than his subsequently published, written text in condemning various aspects of society based on his interpretation of the Bible. According to the article, Pickering “called on Baptists to be about ‘God’s work’ in helping influence morality. ‘We as Southern Baptists should lead the way in strengthening traditional moral values,’ he said, adding that society has been degraded by such things as pornography, homosexuality and divorce.” “Baptist Head Urges Moral Values,” The Clarion-Ledger, (Nov. 13, 1984).

[32] 1990 Hearings at 658.

[33] Associated Press, “Pickering Gives Gillich Mother of All Lectures” (Sept. 29, 1997).

[34] At the time of the defendant’s trial, someone had circulated a leaflet in Jackson County, Mississippi, accusing Judge Pickering and the prosecutors of being racist. At the resentencing hearing, Judge Pickering asked who had been responsible for the leaflet and was told it was the defendant’s mother. Upon learning this, Pickering told the defendant: “[I]f your mama hasn’t prayed for forgiveness and if she hasn’t apologized for it, she ought to.” Id. at 13 (emphasis added).

[35] Richard L. Madden, “G.O.P. Panel Backs Anti-Abortion Plank,” The New York Times, Aug. 11, 1976, at A1.

[36] Fredric N. Tulsky, “Pickering’s Panel Avoids ERA Stand, Opposes Abortion,” The Clarion-Ledger, Aug. 12, 1976.

[37] “Pickering Will Chair GOP Panel,” The Clarion-Ledger, Aug. 10, 1976, at A16. Pickering’s Subcommittee, also with his approval, refused to support a plank endorsing the Equal Rights Amendment. Fredric N. Tulsky, “Pickering’s Panel Avoids ERA Stand, Opposes Abortion,” The Clarion-Ledger, Aug. 12, 1976. The platform committee, however, endorsed the ERA, rejecting the recommendation of Pickering’s subcommittee that it “duck the issue.” “Pickering Loses ERA Battle As Platform Backs Amendment,” The Clarion-Ledger, Aug. 13, 1976.

[38] See Journal of the Senate of the State of Mississippi, Regular Session 1979, at 436 (vote on H.C.R. No. 3). See also, “Proposal on Abortion Approved,” The Clarion-Ledger, Feb. 8, 1979.

[39] Michael Culbreth, “Baptists End Annual Session With Resolution Approvals,” The Clarion-Ledger, Nov. 13, 1984.

[40] Michael Culbreth, “Baptists Avoid Fight Over Bible Interpretation,” The Clarion-Ledger, Nov. 15, 1984.

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