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

Pickering's Record as a Federal Judge

Pickering’s record as a federal judge reflects insensitivity and even hostility toward key principles and remedies that now safeguard civil rights. For example, Pickering has criticized the “one-person, one-vote” principle recognized by the Supreme Court under the 14th Amendment. This principle, which calls for election districts to be nearly equal in population in order to protect the equality of all voters in our democracy, has been called one of the most important guarantees of equality in our Constitution. Nonetheless, Pickering has called the principle “obtrusive,” and suggested that large deviations from equality in drawing legislative district lines, which the Supreme Court has held presumptively unconstitutional, were “relatively minor” and “de minimis.” See “Report of People For the American Way Opposing the Confirmation of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit (Jan. 24, 2002) (hereafter “PFAW Report”), at 4-5.

Judge Pickering has also criticized or sought to limit important remedies provided by the Voting Rights Act. In order to redress serious problems of discrimination against African American voters, the courts (including the Supreme Court and the Fifth Circuit) have clearly recognized the propriety and importance of creating majority-black districts as a remedy under appropriate circumstances. Judge Pickering, however, has severely criticized this significant form of discrimination relief, calling it in one opinion “affirmative segregation.” He has also suggested a narrow interpretation of a key provision of the Voting Rights Act, contrary to Supreme Court precedent. PFAW report at 5-6.

In cases involving claims of employment discrimination, Judge Pickering has repeatedly inserted into his rulings severe criticisms of civil rights plaintiffs and the use of civil rights laws to address alleged discrimination. For example, he has disparagingly stated that the courts “are not super personnel managers charged with second guessing every employment decision made regarding minorities.” He has also demonstrated a propensity to make it harder for some people to obtain access to justice, especially less powerful litigants, including prisoners and people raising civil rights and civil liberties claims. PFAW Report at 6-7; 12-17; 18-20.

In addition, Judge Pickering has been reversed more than a dozen times by the Fifth Circuit in unpublished opinions, used by the Court of Appeals to decide cases in which the district court judge has ignored or violated “well-settled principles of law.” Many of these Pickering cases involved constitutional or civil rights, criminal procedure, or labor issues. In this regard, it is worth noting that Pickering was one of two district court judges within the Fifth Circuit nominated by President Bush to the Court of Appeals. The other, conservative Edith Brown Clement, who was elevated to the Fifth Circuit after serving as a district court judge for a slightly shorter period than Pickering, was never reversed in an unpublished opinion by the Fifth Circuit, according to the information that she provided to the Senate. PFAW Report at 12-17.

At his Feb. 7, 2002 confirmation hearing, while Judge Pickering pointed out that, as with most federal trial judges, only a small percentage of his decisions overall have been reversed, he did not explain his reversals for violating “well-settled principles of law.” In one such case involving a First Amendment claim by a prisoner and in which Judge Pickering was effectively acting in an appellate capacity reviewing the recommendation of a magistrate, the magistrate had missed or ignored a controlling Fifth Circuit precedent which would have required Pickering to rule in the prisoner’s favor. Pickering relied entirely on the magistrate, conducted no research of his own, and essentially rubber stamped what the magistrate had recommended, which was to rule against the prisoner. The Fifth Circuit reversed, citing the decision that the magistrate and Pickering had not even mentioned. When Senator Leahy questioned Judge Pickering about this case at the Feb. 7, 2002 hearing, Pickering’s response was that he and the magistrate had “goofed.” This was only one of a number of such “goofs” –- failure to follow controlling law –- as we have previously documented. PFAW Report at 12-17. 3

This aspect of Judge Pickering’s record bears not only on his approach to judging but on the quality of his judicial work. As Senator Leahy stated on March 14, 2002 in explaining why Judge Pickering lacked the qualifications to be promoted to the Court of Appeals, Judge Pickering’s “record on the United States District Court bench over the last 12 years, as reflected by a number of distressing reversals, does not commend him for elevation. Instead, it demonstrates a habit of somewhat inattentive judging, of relying to his detriment on magistrates and of misstating and missing the law.”3 And as Senator Biden stated in explaining why Judge Pickering should not be confirmed, “A judge who fails to rule correctly on principles of law that are well-settled should not be elevated to a bench where he would be frequently called upon to address unsettled, complex and difficult legal questions.”4




2  Subsequent research by the Judiciary Committee found one such reversal of a Clement ruling that she had apparently overlooked.
3  Statement of Chairman Patrick Leahy, Senate Judiciary Committee, On the Nomination of Charles W. Pickering to be a Judge on the United States Court of Appeals for the Fifth Circuit, Executive Business Meeting, at 3 (Mar. 14, 2002).
4  Statement of Senator Joseph R. Biden, Jr. on the Nomination of Judge Charles W. Pickering, Sr., Committee on the Judiciary, at 2 (Mar. 14, 2002) (emphasis in original).

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