Judiciary Committee Should Reject Pickering On His Record as a Judge and an Elected Official
Today President Bush, Senate Majority Leader Trent Lott, and their allies are launching a final public relations push on behalf of circuit court nominee Charles Pickering. If recent rhetoric by Lott, the White House, the Wall Street Journal editorial board, and others is any indication, the goal of this campaign will be to portray Pickering as a decent man who has been smeared by irresponsible Washington insiders.
Members of the Senate Judiciary Committee must reject the false premise and faulty logic behind this campaign, and remain focused on the record of Charles Pickering as a federal judge and as a state senator. Based on that record, and the issues that arose during his confirmation hearings, Pickering does not merit promotion to the appeals court.
Pickering’s Record, Not his Heart, is the Issue
Contrary to the disinformation campaign being waged by right-wing leaders, opposition to Pickering’s promotion to the appeals court has not been a personal attack on him as an individual but rather a substantive critique of his judicial philosophy and record as a public official on civil rights principles and other important issues. People For the American Way has not said, and does not believe, that Charles Pickering is a racist.
We acknowledge that some of Pickering’s actions during his 40-year public career are commendable and have won him praise from people in his hometown. But those actions are far less relevant to his potential role as a 5th Circuit judge than his judicial philosophy and his record on the federal bench and as a state senator.
It is Charles Pickering’s public record – as examined by senators at his confirmation hearing and by People For the American Way and other public interest organizations in carefully documented reports – that provides the best evidence that Charles Pickering embraces a right-wing judicial philosophy that would turn back the clock on civil rights, reproductive rights, and many other important issues.
The notion that only deliberate racism can threaten civil rights is false. It is quite possible for judges to treat individuals decently and to approach broader constitutional and legal questions in ways that threaten the enforcement of civil rights protections. Saying, for example, that the "states’ rights" approach to the Constitution undermines the federal government’s ability to protect civil rights is not the same as personally attacking judges and lawyers who promote that judicial philosophy. Judge Pickering’s record on these key principles is at the core of the case against his confirmation. And it is why his promotion to the appeals court is opposed by such a broad coalition of local and national civil rights and other public interest organizations, including every chapter of the NAACP in his home state.
Here is a summary of some issues raised by Pickering’s record. For more details, see attached resource list:
As a federal judge during the past decade, Charles Pickering has:
criticized the "one-person, one-vote" principle recognized by the Supreme Court.
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."
criticized or sought to limit important remedies provided by the Voting Rights Act.
repeatedly inserted into his rulings, in cases involving claims of employment discrimination, severe criticisms of civil rights plaintiffs and the use of civil rights laws to address alleged discrimination.
demonstrated a propensity to make it harder for some people to obtain access to justice, especially less powerful litigants, such as people raising civil rights or liberties claims and prisoners.
been reversed 15 times by the 5th Circuit for ignoring or violating "well-settled principles of law" – 11 of those 15 in cases involving constitutional, civil rights, criminal procedure, or labor issues; in contrast, another Bush nominee who was recently confirmed to the 5th Circuit, Edith Brown Clement, reported no reversals of this type during a slightly shorter tenure as a district court judge.
As a state senator, Charles Pickering:
co-sponsored a Mississippi Senate resolution calling on Congress to repeal Section 5 of the Voting Rights Act (federal oversight over jurisdictions with a history of discrimination in voting) or to apply it to all states regardless of their discrimination history, widely seen as an effort to gut the Act.
supported "open primary" legislation that was blocked by the Justice Department over concerns about discrimination against black voters.
supported a resolution calling for a constitutional convention to propose an amendment to ban abortion.
At his confirmation hearing, Charles Pickering’s record raised ethical related issues:
Senators questioned Pickering about extraordinary steps he took to obtain a more lenient sentence for a defendant in a cross-burning case. Unhappy with sentencing disparities between two defendants who agreed to plea bargains and one who was convicted at trial, Pickering ordered prosecutors to raise the issue with the Attorney General and called a Justice Department official to complain. Following the hearing, independent ethics experts confirmed the impropriety of his conduct, concluding that Pickering violated both the Code of Conduct for U.S. judges and the Federal Rules of Criminal Procedure. (See resource list for letters from ethics experts.)
Senators also questioned Pickering about the fact that he asked lawyers, some of whom come before his court, for letters of support for his nomination to the 5th Circuit. He asked that those letters be sent to him and reviewed "most of them" before forwarding them to the Justice Department. At his hearing, Pickering failed to recognize to the potential for coercion in that kind of request, which legal ethics experts have concluded violated ethical standards. (See resource list for letters from ethics experts.)
Pickering said he believes most "good" job bias cases are resolved by the EEOC and thus that cases coming before his court are likely to be without merit. (This is incorrect on the facts and inexcusable as a reflection of his predisposition against people bringing this kind of case to his courtroom.)
The Demand for a Floor Vote
Senate Judiciary Committee members should reject Pickering’s nomination and not send it to the Senate floor. The Committee has closely examined thousands of pages of documents and conducted two hearings into the judge’s record. The full Senate has never overturned a decision by the Senate Judiciary Committee not to report a lower court nominee to the full Senate. When control of the Senate shifted into Democratic hands, an agreement was reached that all Supreme Court nominees would get a floor vote, as has been Senate tradition.
But that did not apply to lower court nominees. The Senate has respected Judiciary Committee decisions to reject lower court nominees such as Pickering.
Resources on the Record of Judge Charles Pickering
PFAW Report Opposing The Confirmation of Charles W. Pickering, Sr. to The United States Court of Appeals for the Fifth Circuit
PFAW Editorial Memorandum: Hearing Strengthens Case Against Judge Charles Pickering’s Confirmation; Testimony Highlights Problems with Nominee’s Record as Judge and State Senator
PFAW Response to Wall Street Journal Editorial Board
PFAW Editorial Memorandum: Opposition to Judge Pickering and Charges of Irresponsibility and Race-Baiting
NARAL Report: Charles Pickering, Nominee for the United States Court of Appeals for the Fifth Circuit
National Women’s Law Center Report: Women’s Rights at Stake in Senate Confirmation of Judges: The Nomination of Charles Pickering to the Fifth Circuit
Alliance for Justice Report: The Case Against the Confirmation of Charles W. Pickering Senior to the U.S. Court of Appeals for the Fifth Circuit
Post-Confirmation Hearing Letters by Ethics Experts
A clearinghouse of information on Judge Pickering’s record is available at www.fairjudges.org