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

Judge Pickering's Promotion of Religion From the Bench

In 1984, Pickering, then President of the Mississippi Baptist Convention, gave the President's Address before the annual meeting of the Convention in which he stated, according to the written text he has provided to the Senate Judiciary Committee, that the Bible should be "recognized as the absolute authority by which all conduct of man is judged . . . ." Charles W. Pickering, "God Will Hold Us Accountable," Mississippi Baptist Record (November 29, 1984).[31]

At his 1990 confirmation hearing before the Senate Judiciary Committee, Pickering was expressly reminded of his statement about the "absolute authority" of the Bible and asked how, if confirmed, how he would separate his "religious beliefs from [his] duties as a judge," and whether he would "have any problems in doing so."[32] Pickering assured the Committee that he did not think he would have any problems in this regard. Id. There is disturbing evidence, however, that Pickering has had difficulty doing just that and has in fact used his position as a federal judge to promote specific religious beliefs and to urge specific religious conduct by litigants appearing before him. For example, the Almanac of the Federal Judiciary, an independent publication that profiles all federal judges, includes this statement from one lawyer who has practiced before Judge Pickering:

He is the judge who concerns me the most. He's a fine person, but he's almost so pious that it interferes with his assignment as a judge.
Vol. I, Almanac of the Federal Judiciary, Fifth Circuit, at 46 (2001).

For more than 20 years, People For the American Way has worked vigorously to defend the constitutional right of every American to freedom of religion and freedom of conscience. There is no question that Judge Pickering, like every person, is entitled to hold and practice his religious beliefs. The information in the Almanac of the Federal Judiciary, however, and Pickering's uncompromising statement that the Bible should be "recognized as the absolute authority by which all conduct of man is judged," raise legitimate concerns about whether Pickering, as a judge, is able to separate his own personal religious beliefs from his role as a judge, as asked by the Senate Judiciary Committee in 1990. While it would be impossible to review the entirety of the actions of a judge who has been on the bench for more than ten years, reports in the press and elsewhere have led us to a number of court proceedings in which Judge Pickering has specifically used his judicial position to promote the role of religion in a person's life and urged litigants to undertake particular religious practices. In particular, this has occurred in cases involving perhaps the most vulnerable category of litigants before a judge -- people being sentenced after conviction of a crime. For example, in sentencing one criminal defendant to 18 years in prison following his conviction in a conspiracy case involving murder, Pickering told him:
It's too late for you not to pay a price for what you've done. However, it is not too late for you to form a new beginning. For yourself and others, I hope you will do that. You have a lot to offer. You can become involved in Chuck Colson's prison fellowship or some other such ministry, and be a benefit to your fellow inmates and to others and to their families. I hope you will have a new beginning even in prison; that you will make a positive contribution to society. It won't be easy, but it can be done.
United States v. Halat, No. 2:96cr30PG, Transcript of Sentencing Hearing, at 93 (Sept. 22, 1997) (emphasis added).

Pickering made a similar statement when he imposed an 18-month prison sentence on a lawyer who had been convicted of receiving and sending child pornography over the Internet:
[I]n the penitentiary, there are many ways to become involved. There are many areas of service and ministry that you can engage in in the penitentiary...[T]here are many other good programs and missions and -- you know, you have indicated spiritual growth. Some of those in their letters that have written to me have indicated spiritual growth. I hope that you will continue and that you will find meaning and purpose in life.
United States v. Holleman, No. 1:97cr51PG, Transcript of Sentencing Hearing, at 83-4 (Mar. 18, 1998) (emphasis added).

In another sentencing hearing, Judge Pickering told a defendant who had been convicted of conspiracy in a murder case that his life "has indeed epitomized the work of the devil." United States v. Gillich, No. 1:90cr77PR, Transcript of Hearing on Motion to Reduce Sentence, at 32 (Sept. 23, 1997). In what one news article described as a "move true to his religious connections,"[33] Pickering then ordered that upon the defendant's release from prison, during a period of supervised release and/or probation:
you will involve yourself in some type of systematic program whereby you will be involved in the study and consideration of effects and consequences of crime and/or appropriate behavior in a civilized society. This may be a program through your church or some other such agency or organization so long as it is approved in advance by the probation service.
United States v. Gillich, No. 1:90cr77PR, Transcript of Hearing on Motion to Reduce Sentence, at 38 (Sept. 23, 1997) (emphasis added).

Last summer, Judge Pickering reduced to ten years the sentence of a criminal defendant who had served five years of a life sentence for a drug-related crime. According to the defendant, he had spent time in prison "seeking God, reading and studying God's word," and learned he had to change. United States v. Edmond C. Brown, No. 1:96cr57PG, Transcript of Hearing on Motion for Reduction of Sentence, at 16 (Aug. 13, 2001). Apparently, he then provided substantial cooperation to the government, which supported his motion for a reduced sentence. At the resentencing hearing, Judge Pickering told the defendant:
[L]et me share an impression that I have. You know, whenever your case first came before me, I was saddened and impressed with the fact that I thought: What a loss. What a waste. Two or three reasons. You obviously had considerable talent as a baseball player. Physically, you're blessed beyond what most young men have. You're nice looking. You're neat. . . You're not overweight. You were a good physical specimen. That was evidenced by your ability to play ball. But I got the distinct impression that you thought you were going to have a professional ball career in your future. And that didn't materialize. And that when you didn't have the big cars and the big money that you had expected from being a professional ballplayer, that that caused you to change your direction and to become dishonest and to deal drugs. And I thought that was a tragedy. What a waste when there's such a great need for role models, for Christian examples.
United States v. Edmond C. Brown, No. 1:96cr57PG, Transcript of Hearing on Motion for Reduction of Sentence, at 17-18 (emphasis added).[34]

It should also be noted that in another case, Pickering cited the Bible as recorded law on par with the Supreme Court. In Barnes v. Mississippi Dept. of Corrections, 907 F. Supp. 972 (S.D. Miss. 1995), Pickering denied a habeas corpus petition by a defendant who had received a life sentence. In his ruling, Pickering criticized the availability and extent of habeas corpus relief. He wrote that jurists with law clerks have ample time to spend second-guessing law enforcement officers, and noted that these decisions affect "real people and the way they live their lives and the way they are protected or not protected." 907 F. Supp. at 981. Pickering then continued: "Judges and legal scholars throughout the ages have warned against what we are doing now. One of the oldest recorded codes of law provides: 'The innocent and the just you shall not put to death, nor shall you acquit the guilty.' [Fn. 15: The Bible, Exodus 23:7]." Id. Pickering then proceeded to cite English jurist Sir Edward Coke (a 17th century authority on common law) as well as a decision of the Supreme Court. His reference to the Bible placed the Bible on the same plane as Coke and the Supreme Court in terms of sources of jurisprudence.

It should be emphasized again that our concern does not relate to Judge Pickering's personal religious beliefs. Judge Pickering, like every American, is entitled to hold and to practice his religious beliefs. But it is of great concern when a federal judge, acting in that capacity, attempts to promote those beliefs or suggest to those appearing before him that they should undertake particular religious practices or bring religion into their own lives.

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