Because the Supreme Court hears fewer than 90 cases a year, the protection of civil and constitutional rights by the judiciary depends in large measure on the appellate courts, which are the courts of last resort for most Americans. Indeed, at Pickering’s confirmation hearing on Feb. 7, 2002, Senator Feinstein said that the seat to which Pickering had been nominated is, in a sense, “as important as a Supreme Court seat.” She observed that while the Fifth Circuit during the 1960s and 1970s was considered a trailblazer in protecting individual rights and dismantling systemic segregation, the Fifth Circuit today dismally fails to live up to the legacy of its predecessors.
As the Senate Judiciary Committee recognized, Judge Pickering’s record did not support his elevation to the Court of Appeals. Far from meeting the burden to demonstrate a history of commitment to civil and constitutional rights, Pickering’s record shows insensitivity and hostility toward key legal principles protecting the civil and constitutional rights of minorities, women, and all Americans. Especially in the Fifth Circuit, which has the largest minority population of any circuit –- 42 percent –- and which has already issued a number of troubling decisions on civil and constitutional rights, adding another judge like Charles Pickering would pose a grave danger to the rights and liberties of ordinary Americans. In addition, the ethically questionable conduct in which Judge Pickering has engaged as well as the concerns about the quality of his judicial work serve to underscore the conclusion that he should not be promoted. The Judiciary Committee was right to reject Judge Pickering’s lifetime elevation to the Court of Appeals. If President Bush does not withdraw this nomination, it should be rejected again.