As discussed above, prior to Judge Pickering’s Feb. 7, 2002 hearing, People For the American Way and other public interest organizations opposed to Pickering’s confirmation had documented that his public record as a state Senator and federal judge demonstrates insensitivity and hostility to basic civil rights principles and laws, including voting rights and access to the courts. At that hearing, Pickering raised even more concerns about his views as a judge on civil rights cases. Senator Kennedy and others questioned Pickering closely about disparaging remarks he has injected into cases about anti-discrimination laws and the people who file employment discrimination cases. As part of his response, Pickering stated his belief that the EEOC through its own mediation efforts resolves most of the “good” job bias cases and that cases that come to court generally have already been investigated by the EEOC and determined to have no basis.
Essentially, Pickering admitted that when a case of employment discrimination brought under Title VII comes before him, he is predisposed to believe that it does not have merit because he thinks that, if it did, the EEOC would have taken care of it. As Senator Durbin observed on March 14, 2002 in citing Judge Pickering’s presumptions about employment discrimination cases as one of the reasons why he should not be confirmed, this was “a startling admission by a Federal judge who should know better.”5
Not only is it improper for a judge to be predisposed to believe that a particular type of case lacks merit, but also the premise on which Pickering’s preconception rests is plainly inaccurate. As Senator Durbin further observed, “the EEOC lacks the legal authority to impose mediation and lacks the resources to investigate the vast majority of discrimination cases.”6 Indeed, the EEOC is overburdened, with a backlog of nearly 35,000 cases.7 In addition, almost two-thirds of employers decline to participate in EEOC mediation of discrimination complaints, leaving employees with little option but to go to court.8 And the EEOC is so lacking in resources that it typically litigates only 3.5 percent of the charges (complaints) in which it finds reason to believe discrimination has occurred.9 Because of these delays and limitations, victims of discrimination often obtain "right to sue" letters from the EEOC after months of EEOC inaction, enabling them to pursue their claims in court rather than have their claims languish in administrative limbo. Indeed, federal law specifically allows victims of discrimination to do this. As Senator Kennedy stated on March 14, 2002, “Congress has always contemplated that the federal court would be a central place for enforcing the rights of employees facing discrimination. . . [I]t is deeply troubling that Judge Pickering fails to understand the role of the EEOC and of the courts.”10
The misguided predisposition against discrimination cases reflected in Judge Pickering’s opinions and testimony strongly supported the decision by the Judiciary Committee to reject his confirmation and warrants the same decision now.
5 United States Senate, Committee on the Judiciary, Committee Business, Unofficial Transcript at 74 (Mar. 14, 2002).
7 Letter to the Editor of Marcia D. Greenberger, Co-President, National Women’s Law Center, Washington Post, A32 (Feb. 14, 2002).
10 Statement of Senator Edward M. Kennedy Regarding the Nomination of Judge Charles W. Pickering to the Fifth Circuit Court, at 2 (Mar. 14, 2002).