Why the Senate Judiciary Committee Was Right to Reject the Confirmation of Charles W. Pickering, Sr. to the United States Court of Appeals for the Fifth Circuit

Introduction

On March 14, 2002, the Senate Judiciary Committee rejected President Bush’s nomination of Mississippi federal district court judge Charles W. Pickering, Sr., championed by Senator Trent Lott, to the United States Court of Appeals for the Fifth Circuit. The Committee’s decision to reject Pickering’s lifetime elevation to the powerful Court of Appeals followed an exhaustive examination of Pickering’s record, scrutiny that produced disturbing conclusions. Pickering’s record, both before and since he became a judge, demonstrates insensitivity and hostility toward key legal principles protecting the civil and constitutional rights of minorities, women, and all Americans. As a judge, Pickering in a number of instances has allowed his own beliefs to trump his responsibility to follow the law. And his decisions as a judge have been reversed on a number of occasions by conservative appellate court judges for disregarding controlling precedent on constitutional rights and for improperly denying people access to the courts.

Pickering’s confirmation hearings served to strengthen the case against elevating him to the Court of Appeals. Not only did his testimony fail to answer the serious concerns that had been raised about his record, but it also raised additional concerns. In particular, the Committee’s February 2002 hearing revealed that Judge Pickering had gone to extraordinary lengths and engaged in unethical conduct, according to several legal ethics experts, in order to achieve a more lenient sentence for a defendant convicted in a cross-burning case. Also, Judge Pickering’s efforts to explain the discrepancy between his earlier testimony that he had never had “any contact” with the infamous Mississippi Sovereignty Commission, and the documented fact that he had, raised questions about his credibility. And Judge Pickering’s solicitation of letters in support of his confirmation from lawyers who may appear before him and his request that they send such letters to him raised additional ethical concerns.

Numerous state and national organizations opposed Pickering’s confirmation, including every chapter of the NAACP in his home state, the national NAACP, the Magnolia Bar Association (Mississippi’s African American bar group), and a wide coalition of other civil rights and public interest organizations, including People For the American Way. Many newspaper editorials also urged the Judiciary Committee not to confirm Pickering. For all of the reasons discussed below and previously addressed by us and by others opposed to Pickering’s confirmation, the Judiciary Committee unquestionably made the right decision not to give him a lifetime seat on the Court of Appeals.

Despite President Bush’s frequent claim that he is a “uniter, not a divider,” he has re-nominated Judge Pickering to the Fifth Circuit. He has done this despite the troubling information that has come to light about Judge Pickering’s record and his conduct. He has done this despite the fact that, to our knowledge, no federal judicial nominee who has been rejected in one Congress has ever been re-nominated by the President to the same position. Perhaps most disturbing, President Bush has re-nominated Judge Pickering despite the fresh wounds that remain from Trent Lott’s recent reopening of the scars of this country’s segregated past. This is all the more disturbing given Pickering’s present day insensitivity and hostility toward key civil rights principles and protections.

Without repeating all of the many arguments against Judge Pickering’s confirmation, this report summarizes the most significant reasons why the Judiciary Committee was right to reject Judge Pickering’s confirmation and why it should do so again. It is drawn from the more comprehensive reports that we issued last year and that are listed in the Appendix along with other resources concerning Judge Pickering. As those materials and this report confirm, and as the Los Angeles Times has recently stated, Judge Pickering “now has been nominated two times too many.” Editorial, “Bush’s Full-Court Press,” Los Angeles Times (Jan. 13, 2003).

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