Last week we were able to consider and report 20 of President Bush’s nominees. On our agenda today are several more.

Last week, at the request of Senator Hatch, the Committee delayed for another week consideration of the nomination of Charles W. Pickering to be a judge on the United States Court of Appeals for the Fifth Circuit. Judge Pickering’s nomination is the 43rd nomination the Committee has considered since the change in majority last summer. Each of the previous 42 nominees has received the unanimous, bipartisan backing of the Committee.

Judge Pickering’s nomination was to be on the agenda for a business meeting two weeks ago, but at the request of the majority leader, I agreed to postpone the meeting for a week. When we convened last week, the Ranking Member exercised his right to hold consideration of Judge Pickering’s nomination over for one week. Despite recent accusations that Democrats on the Judiciary Committee have been using tactics of delay, my colleagues on this side of the aisle and I have now been prepared for some time to vote on the nomination of Judge Pickering, perhaps today the Committee will be allowed to proceed to that vote.

Among the many "better practices" we have been trying to build into our procedures since the change in majority to make the confirmation process for federal judges more fair and orderly is proceeding to vote on judicial nominations after their hearings and an opportunity to complete the record and consider it. Unfortunately, that practice was not always adhered to in the last several years. Several highly qualified nominees for vacancies on Courts of Appeals and on our federal trial courts were never considered by this Committee, even after having completed the hearing process.

We have worked to remedy problems from the past, and I have also tried to propose constructive ways to move ahead. We are restoring steadiness in the hearing process. The Committee is holding regular hearings at a pace that is exceeding the pace of the previous six and one-half years. Next week the Committee will be holding its 15^th hearing for judicial nominees since the change in majority less than nine months ago. We have ended the era of secret holds that plagued so many of President Clinton’s judicial nominations, keeping them from ever getting a hearing or a Committee vote and delaying Senate consideration for months and years of so many who had been considered and reported favorably by a majority on this Committee.

I have taken a number of actions to seek cooperative and constructive working relationships with all Senators on both sides of the aisle and with the White House in order to make the confirmation process more orderly, less antagonistic, and more productive. Not all of my efforts have been successful and very few of my suggestions to the Administration have yielded results, but I have continued to make the effort in the best interests of the country, the Senate and this committee.

Since the shift in majority last summer, I have worked with Republicans and Democrats on this Committee and throughout the Senate to confirm as many of President Bush's judicial nominees as fast as possible. In the last nine months we have already confirmed 40, which is more than full year totals in 1996, 1997, 1999 and 2000 when the Senate and Committee were under Republican leadership. In January, I extended an olive branch to the Administration and suggested that we find ways for the Senate and the White House to work together more closely and efficiently with respect to filling judicial vacancies that had been perpetuated since 1996. I am disappointed that, instead, the President chose yesterday to attack the Members of the Judiciary Committee.

I am extremely proud of the work this Committee has done since the change in the majority. I am proud of the way we have considered nominees fairly and expeditiously and the way we have been able to report to the Senate so many qualified, non-ideological, consensus nominees to the Senate.

We also have included a number of controversial nominees in our hearings. Controversial nominations take more time and effort, but we are making that effort and taking that time to be fair and thorough in our consideration of those nominations, as well.

The constitutional responsibility to advise and consent to the President’s selection of lifetime tenured judicial nominees should not be devalued to ‘advise and rubber stamp.’ When the President sends us a nominee who raises concerns over qualifications or who has a misunderstanding of the appropriate role of a federal judge, I intend to make my concerns known. This is one of those times. The nomination of Judge Charles Pickering raises several areas of serious concern to me.

The issue is whether Judge Pickering’s record justifies this promotion to a court that is one step below the Supreme Court. Appellate judges in the circuit courts write opinions that eventually can become law affecting all of us, no matter where we live. I have concluded that Judge Pickering’s record does not justify this promotion.

I set forth background and detail in my statement for the record to ensure that no one misunderstands how the Committee has gone about evaluating Judge Pickering’s record. We have not engaged in a game of tit-for-tat for past Republican practices, nor have we delayed proceedings on this nomination, as so many nominations were delayed in recent years. Instead, the Committee has seriously considered the nomination, worked hard to complete the Committee’s record of information about this nomination, has given the nominee two opportunities to be heard, and has promptly scheduled a Committee vote. This is far more fairness, courtesy and orderly process than was provided so many nominees during prior years.

The responsibility to advise and consent on the President’s nominees is one that I take seriously and that this Committee takes seriously. I firmly believe that Judge Pickering’s nomination to the Court of Appeals have been given a fair hearing and a fair process before this Committee. I thank Senator Schumer for chairing the October 18 hearing and for his fairness then and, again, at the February follow-up hearing. I commend Senator Feinstein for her fairness in chairing the follow-up hearing last month. I said at the time that I could not remember anyone being more fair than she was that day and I reiterate that today.

My regret is that she and so many Democrats on this Committee have been subjected to unfair criticism and attacks on their character and judgment over the last several weeks. I was distressed to hear that Senators was receiving calls and criticism, as have I, that are based on our religious affiliations. That is wrong. I was disappointed to see Senator Edwards subjected to criticism for asking questions and being insulted and called names. That is regrettable. There are strongly held views on both sides. But while Democrats and most Republicans have kept to the merits of this nomination, it is most unfortunate that others have chosen to vilify, castigate, unfairly characterize and condemn without basis Senators working conscientiously to fulfil their constitutional responsibilities.

My first area of concern, which I raised at his hearing, is the quality of Judge Pickering’s judging. His 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.

In addition to the many times that Judge Pickering has been reversed by the Court of Appeals for not knowing or not following the law, there are numerous instances of Judge Pickering misstating the law in cases that were not appealed to a higher court and other cases in which he stated a conclusion without any legal support.

Additional questions arise when I examine yet another disturbing trend in Judge Pickering’s opinions, published and unpublished: his habit of inserting his personal views into written decisions in such a way as to create a terrible impression of bias to categories of plaintiffs and hostility to entire types of claims before the federal courts.

While fair treatment in employment on the basis of race, sex, national origin, age and disability is fundamental to the American dream, and crucial to a free and thriving economy, due process in criminal proceedings can be a matter of life and death. Here, too, Judge Pickering has misunderstood the law and inserted his personal views.

As I review my objections to Judge Pickering’s elevation to the Fifth Circuit, I have asked, in a number of different cases and areas of the law, whether Judge Pickering was unaware of the law in different areas, or whether he was trying to impose his own views in spite of the law. Another area of great concern to me – Judge Pickering’s intervention on behalf of a convicted criminal – raises this same fundamental question. What Judge Pickering did was to inappropriately and intensely lobby the Government to agree to dismiss the arson charge against Mr. Swan.

The ethics concerns raised by the judge’s behavior in the cross burning case is not the only ethical problem Judge Pickering’s nomination presents. There is also the matter of his having solicited letters of support and having asked to review them before forwarding them to the Justice Department and to the Senate. As the letter from Professor Stephen Gillers, a noted expert on legal ethics and professor of law at New York University, to Senator Feingold, makes clear, this is a matter of legitimate concern.

I should note that Judge Pickering’s behavior in this matter echoes that of a nominee from more than 20 years ago, Charles Winberry. Nominated to the U.S. District Court in North Carolina by Democratic President Jimmy Carter, Mr. Winberry’s nomination was defeated in the Judiciary Committee in 1980. Among the grounds on which I opposed this nomination sent by a President of my party, were my objections to Mr. Winberry’s having solicited letters from lawyers who would be appearing before him, if confirmed, and asking for blind copies of those letters.

The campaigning for confirmation as a federal judge that has grown over the years is a troubling development and one that risks undercutting the independence of our judiciary. I was concerned about it in 1980, and I remain concerned about it in 2002.

Respectfully, I have concluded that the Pickering nomination fails the President’s own stated standard of wanting nominees who will enforce instead of make the law. Judge Pickering repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights.

During the course of these proceedings, many have criticized Democratic Senators, mistakenly saying that some have called Judge Pickering a racist. That did not happen, and that criticism is a smokescreen. That did not occur. I attended the Committee hearings on this nomination and witnessed Democratic Senators asking questions and the nominee being given opportunity after opportunity to make his best case for elevation to the Fifth Circuit. The talking points distributed by the other side are partisan, political and not well-meaning. They have been accepted by some who have failed to review the record. That is unfortunate.

The nominee’s past views and actions during a difficult time in Mississippi’s history are not irrelevant, but I based my decision on his record as a judge and on the record established at our hearings. That record is replete with examples of bad judging and littered with cases demonstrating a misunderstanding of the law in many crucial and sensitive areas. That record shows a judge inserting his personal views into his judicial opinions, and putting his personal preferences above the law. The record – Judge Pickering’s own record of performance – does not merit his promotion to one of the highest courts in the land. Based on that record, I will vote against confirmation.

Finally, let me say that last week when we met, there was some pretty tough language used to describe the actions and views of so-called "outside groups" in connection with the Committee’s consideration of judicial nominations. Some words were used and characterizations made that I will not repeat. But I would like to say that I agree with Senator Schumer that such rhetoric is not helpful to the process. There is no purpose in denigrating the work of bona fide public interest groups, on both sides of the partisan aisle and all parts of the political spectrum. These groups represent millions of citizens who have every right to free assembly and free speech to make their views on all sorts of issues known to their government. We can celebrate that opportunity and respect their right to state opinions in a civil manner, and still not accept every statement made or position taken.

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