Additional concerns about Judge Pickering’s conduct as a judge were raised at his Feb. 7, 2002 hearing in connection with his efforts to obtain letters in support of his elevation to the Fifth Circuit. At the hearing, Senator Feingold questioned Judge Pickering about his conduct the previous October in contacting 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 contacted a number of attorneys with that request, but also that he had asked that those letters be sent directly to him. He testified that he read most of the letters before sending them on to the Justice Department. In responding to Senators’ written questions after the confirmation hearing, Judge Pickering stated that the Department of Justice had told him that he should have the lawyers fax their letters to his chambers and that he should then fax them to the Department. Response of Judge Charles W. Pickering, Sr. to written questions of Senator Feingold, Ans. 1 (Mar. 6, 2002).
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 was then and remains 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. Whether or not Pickering is ultimately elevated to the Fifth Circuit, he will remain a federal district court judge.
After the hearing, legal ethics expert Stephen Gillers of New York University Law School concluded that Pickering’s conduct had violated ethical standards, regardless of whether he had the subjective intent to “coerce” lawyers into writing letters supporting his confirmation. Letter of Prof. Stephen Gillers to Hon. Russell D. Feingold (Feb. 20, 2002). And ethics expert Steven Lubet of Northwestern University Law School, cited by Legal Times, likewise suggested that Pickering’s actions could 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 federal judges. J. Groner, “New Line of Questioning at Pickering Hearing,” Legal Times (Feb. 11, 2002).
In a post-hearing letter to Senator Hatch, Professor Richard W. Painter of the University of Illinois Law School responded to Senator Hatch’s request for his opinion as to whether “rules of judicial conduct prohibit a federal judge who has been nominated for a higher federal judgeship from soliciting lawyers to write letters in support of his confirmation.” Letter of Prof. Richard W. Painter to Senator Orrin Hatch, at 1 (Mar. 5, 2002). In Prof. Painter’s opinion, “[e]xisting rules on this subject do not impose a blanket ban on solicitation of such letters. Although some solicitations might violate existing rules of judidial conduct, other solicitations would not.” Id. However, as Senator Feingold observed on March 14, 2002 in citing Judge Pickering’s conduct as one of the reasons why Pickering should not be confirmed, Prof. Painter’s letter failed to take into account the fact that Judge Pickering had asked that the letters be sent directly to him.17 This meant that Pickering would know which lawyers had taken him up on his request and what they had written about him, facts important to the “coercion” implicit in his solicitation of the letters. As Senator Feingold recognized, Professor Painter’s failure to address a salient part of Judge Pickering’s conduct undermined the relevance of his views.18
Senator Feingold summarized his concerns about Judge Pickering’s conduct by saying: “We should want judges who are beyond reproach, who know that ethical conduct is at the core of their responsibilities, because such conduct helps ensure that the public will respect their decisions. I believe that Judge Pickering’s conduct fell far short in this instance.”19
17 Statement of U.S. Senator Russ Feingold on the Nomination of Judge Charles Pickering Before the Senate Committee on the Judiciary, at 4 (Mar. 14, 2002).
18 Id. Responding to Senator Feingold, Senator Sessions said that the reason the “ethics inquiry” to Prof. Painter did not include the fact that Judge Pickering had asked that the letters be faxed directly to him was that the Department of Justice had requested he do this. United States Senate, Committee on the Judiciary, Committee Business, Unofficial Transcript at 111 (Mar. 14, 2002). However, the Department of Justice cannot create exceptions to the rules of judicial ethics; it is up to each individual judge to know what judicial conduct is proper and what is not.
19 Statement of U.S. Senator Russ Feingold on the Nomination of Judge Charles Pickering Before the Senate Committee on the Judiciary, at 5 (Mar. 14, 2002).