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

The Nominee's Record

Charles W. Pickering, Sr., was appointed to his present position as a judge on the United States District Court for the Southern District of Mississippi in 1990 by President George H.W. Bush. A lifetime Mississippi resident, Pickering practiced law in Laurel, Mississippi until he became a judge. During that time, and while still in private practice, he served in various appointed and elected positions as well, including as a Mississippi state senator from 1972-80, chair of the Mississippi Republican Party in 1976, and President of the Mississippi Baptist Convention from 1983-85.

In his 11 years on the bench, Judge Pickering has published fewer than 100 of the approximately 1,100 opinions that he has estimated he has written in that time.[2] In contrast, Judge Edith Brown Clement, who was a federal District Court judge before her confirmation to the Fifth Circuit in 2001, has more than 14 times as many published opinions during a ten-year period. Recognizing the importance of reviewing Judge Pickering's complete record as a District Court judge when considering him for a lifetime appointment to the Court of Appeals, the Senate Judiciary Committee requested that Pickering provide copies of all of his unpublished decisions, which represent the bulk of that record. Unfortunately, Judge Pickering has been able to provide only approximately 600 of his estimated 1000 unpublished decisions, and has indicated that the remainder, approximately 40% of the rulings that he estimated he has issued as a judge, are not available.

Obviously, neither we nor the public in general can know what is in those hundreds of decisions by Judge Pickering that he has not provided. We cannot know what aspects of Judge Pickering's record as a judge will now go unreviewed during the confirmation process. Most important, the Senate, charged by the Constitution with examining Judge Pickering's qualifications and fitness to be elevated to a lifetime position on the Fifth Circuit, does not have available to it some of the material most relevant to that decision. This is deeply troubling in the context of an appellate nomination of a district court judge. The Judiciary Committee should continue to pursue the issue of access to all of Judge Pickering's rulings.

We have reviewed that portion of Judge Pickering's judicial record that is available, as well as important aspects of his record before becoming a judge. That review leads to the conclusion that his record does not meet the criteria that should be demanded of a federal appellate court nominee. This conclusion is based on his record in several specific areas: civil rights, the pattern of appellate reversals of some of his decisions, access to justice, church-state separation and religion, and reproductive freedom.

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