Statement Of Senator Patrick Leahy,
Ranking Member, Senate Judiciary Committee,
On The Nomination Of Charles W. Pickering Sr.
To The United States Court Of Appeals For The Fifth Circuit
October 30, 2003
The Pickering Nomination
We are at a challenging time in our Nation’s
history. Over the last several days more than 200 people have been
killed or wounded in Baghdad. The number of unemployed Americans
has been at or near levels not seen in years, poverty is on the rise
in our country, and the current Administration seems intent on
saddling our children and grandchildren with trillions in deficits
and debt. For the first
time in a dozen years, charitable giving in this
country is down. That is not the type of compassion we heard about
just three short years ago.
While negative indicators are spiking, the
Republican leadership of the Congress now is choosing to abandon
work on very real problems in education, health care and national
security to turn the Senate’s attention to wheel-spinning exercises
involving the most controversial judicial nominees.
Ironically, in spite of the heated rhetoric on
the other side of the aisle, we have made progress on judicial
vacancies when and where the
Administration has been willing to work with the Senate. Indeed,
just the other day the Senate confirmed the 167th
of this President’s judicial nominees – 100 of them, confirmed by
the previous Democratic-controlled Senate.
In less than three years’ time, the number of President George W.
Bush’s judicial nominees confirmed by the Senate has exceeded the
number of judicial nominees confirmed for President Reagan in all
four years of his first term in office. Republicans acknowledge
Ronald Reagan as the “all time champ” at appointing federal judges,
and already the record compiled by the Senate in confirming
President George W. Bush’s nominees compares very favorably to his.
Since July 2001, despite the fact that the Senate majority has
shifted twice, a total of 167 judicial nominations have been
confirmed, including 29 circuit court appointments. One hundred
judges were confirmed in the 17 months of the Democratic Senate
majority, and now 67 more have been confirmed during the comparative
time of the Republican majority.
One would think that the White House and the Republicans in the
Senate would be heralding this landmark. One would think they would
be congratulating the Senate for putting more lifetime appointed
judges on the federal bench than President Reagan did in his entire
first term and doing it in three-quarters of the time. But
Republicans have a different partisan message. The truth is not
consistent with their efforts to mislead the American people into
thinking that Democrats have obstructed judicial nominations. Only
a handful of the most extreme and controversial nominations have
been denied consent by the Senate. Until today only three have
failed. One-hundred sixty-seven, to three. That record is in stark
contrast to the more than 60 judicial nominees from President
Clinton who were blocked by a Republican-led Senate.
Not only has President Bush been accorded more confirmations than
President Reagan was during his entire first term, but the Senate
also has voted more confirmations this year than in any of the six
years that Republicans controlled the Senate when President Clinton
was in office. Not once was President Clinton allowed 67
confirmations in a year when Republicans controlled the pace of
confirmations. Despite the high numbers of vacancies and
availability of highly qualified nominees, Republicans never
cooperated with President Clinton to the extent Senate Democrats
have. President Bush has appointed more lifetime circuit and
district court judges in 10 months this year than President Clinton
was allowed in 1995, 1996, 1997, 1998, 1999, or 2000.
Last year, the Democratic majority in the Senate proceeded to
confirm 72 of President Bush’s judicial nominees and was savagely
attacked nonetheless. Likewise in 1992, the last previous full year
in which a Democratic Senate majority considered the nominees of a
Republican President, 66 circuit and district court judges were
confirmed. Historically, in the last year of an administration,
consideration of nominations slows, the “Thurmond rule” is invoked,
and vacancies are left to the winner of the presidential election.
In 1992, however, Democrats proceeded to confirm 66 of President
Bush’s judicial nominees even though it was a presidential election
year. By contrast, in 1996, when Republicans controlled the pace
for consideration of President Clinton’s judicial nominees, only 17
judges were confirmed, and not a single one of them was to a circuit
court.
In fact, President Bush has now already appointed more judges in
his third year in office than in the third year of the last five
presidential terms, including the most recent term when Republicans
controlled the Senate and President Clinton was leading the country
to historic economic achievements. That year, in 1999, Republicans
allowed only 34 judicial nominees of President Clinton to be
confirmed all year, including only 7 circuit court nominees. Those
are close to the average totals for the six years from 1995 to 2000
when a Republican Senate majority was determining how quickly to
consider the judicial nominees of a Democratic President. By
contrast, the Senate to this point has confirmed 67 judicial
nominees, including 12 circuit court nominees, almost double the
totals for 1999.
These facts stand in stark contrast to the false partisan
rhetoric by which Republican partisans have sought to demonize the
Senate for having blocked seemingly all of this President’s judicial
nominations. The reality is that the Senate is proceeding at a
record pace and achieving record numbers. We have worked hard to
balance the need to fill judicial vacancies with the imperative that
federal judges need to be fair.
In so doing, we have reduced the number of judicial vacancies to
39, according to the Republican website for the Judiciary Committee.
Had we not added more judgeships last year, the vacancies might
well stand below 25. More than 95 percent of the federal judgeships
are filled. After inheriting 110 vacancies when the Senate
Judiciary Committee reorganized under Democratic control in 2001, I
helped move through and confirm 100 of the President’s judicial
nominees in just 17 months. With the additional 67 confirmations
this year, we have reached the lowest number of vacancies in 13
years. There are more federal judges on the bench today than at any
time in American history.
But despite this record of progress, made
possible only through good faith effort by Democrats on behalf of a
Republican President’s nominees, and in the wake of the years of
unfairness shown the nominees of a Democratic President, the
Republican leadership has decided to use partisan plays out of its
playbook as this year winds down.
Today we discuss the nomination of a candidate
for a judgeship whose record already has been thoroughly examined
and rejected by the Senate Judiciary Committee. The Senate is being
asked to devote its time to the nomination of a candidate for a
judgeship who has demonstrated that his record as a lower court
judge is not deserving of a promotion. Instead of putting
partisanship aside and bridging our differences for the sake of
accomplishing what we can for the American people, we are asked to
participate in a transparently political exercise initiated by a
President who claimed to want be a uniter, not a divider. With
respect to his extreme judicial nominations, President George W.
Bush is the most divisive President in modern times. Through his
extreme judicial nominations, he is dividing the American people and
he is dividing the Senate.
The nominee we are being asked by the majority
to consider today is Charles W. Pickering Sr., currently a lifetime
appointee on the federal trial court in Mississippi. Originally
nominated in 2001 by President Bush, this nominee’s record underwent
a thorough examination by the Senate Judiciary Committee and was
found lacking. Rejected for this promotion by the Committee last
year because of his poor record as a judge and the ethical problems
raised by his handling of his duties in specific instances, Judge
Pickering’s nomination was nonetheless sent back to the Senate this
year by a President who is the first in our history to reject the
judgment of the Judiciary Committee on a judicial nominee. This is
the only President who has renominated someone rejected on a vote by
the Judiciary Committee for a judicial appointment.
For awhile this year this re-nomination lay
dormant while Republicans planned a follow up hearing in their
effort to reinterpret the facts and the record. Every once in a
while we would read a news account reporting that some Republican
official or other would insist that the nomination was to
resurface. Judge Pickering himself told an audience at a recently
delivered speech that several hearings on his nomination were
scheduled and cancelled over the last year by the Republicans.
Recently, however, Republicans decided to
forego any pretense at proceeding in regular order. They simply
placed the name of Judge Pickering on the Committee’s markup agenda
and voted him out by means of their one-vote majority. There was no
reason given for suddenly bringing this nomination to the fore
again. There are plenty of nominees for the Committee to consider
whom it has not previously rejected. The Committee had been told
since January that a new hearing would first be held, but none was.
So the timing has begged the question: Why
Judge Pickering, and why now? Why not move ahead to confirm
well-qualified candidates, such as Roger Titus or Gary Sharpe? Why
expend the Senate’s valuable time rehashing arguments about a
controversial nomination that has already been rejected once before?
Some have charged that the timing of this vote
has been arranged to coincide with the gubernatorial election next
Tuesday in Mississippi. That is because for month, after month,
after month – ten months, in fact – this re-nomination lay dormant,
and Republicans seemed reluctant to bring it back to the Committee,
let alone to the Senate Floor, for votes. Next Tuesday, the people
of Mississippi will be voting for their Governor in what newspapers
report may be a pretty tight race. So now that this nomination is
back, coinciding so neatly with an election in which Haley Barbour,
a savvy Republican political operative, is challenging an incumbent
Democratic Governor, Ronnie Musgrove, it does make you wonder.
Especially when Governor Musgrove supports the Pickering
nomination. Let us hope that the Senate is not being used for that
partisan purpose.
Here we have a nominee defeated by the
Judiciary Committee entirely on the merits – a nominee who, as
Democratic Senators have shown, has a record that does not merit
this promotion, who injects his personal views into judicial
opinions, and who has made highly questionable ethical judgments.
We also have a record of misleading and unfair arguments made by the
nominee’s supporters in the Senate in the wake of his first defeat,
examples of Republican Senators implying that Democrats opposed the
nominee because of his religion or region. Some believe that the
political calculation has been made to ignore the facts, to pin some
unflattering characterization on Democratic candidates in
Mississippi, and to count on cynicism and misinformation to rule the
day. Introduce the red herring that opposition to Judge Pickering’s
confirmation is tantamount to some kind of insult to the South, and
hope nobody sees through that deception.
The poorly named “Committee for Justice,” an
organization created to make the ugliest and most partisan political
arguments in favor of President Bush’s nominees, and an organization
run by the first President Bush’s White House Counsel, Boyden Gray,
has already produced television advertisements in support of Judge
Pickering, designed to put pressure on Democratic Senators. How
long before we see those ads running on Mississippi television
stations? And out of whose offices does the “Committee for Justice”
do its business? None other than the Washington lobbying firm still
controlled by and named after the Republican nominee himself, Mr.
Haley Barbour. And now, as part of an orchestrated campaign,
Republican partisans in the House have also been pressed into
service for this mis-information campaign.
Distortions About Filibusters
Another
shameful thing we will hear today is a distortion of the history of
the filibuster. Some Republicans would now have the public
believe that a filibuster of a nominee is, in their words,
“unprecedented.” This is another deception. As some of these same
Republicans well know, they filibustered the nominations of Judge
Paez and Judge Berzon on the floor of the Senate in 1999 and 2000,
as they conceded at that time. By way of example, I note that
several Republicans currently serving voted against cloture,
the motion to close debate, after the Paez nomination had been
pending before the Senate for more than four years. I have already
noted that even after losing the cloture
vote, Republicans led by Senator Sessions moved to indefinitely
postpone a vote on Judge Paez’s nomination, and a number of
Republican Senators currently serving voted to continue to block
action on the Paez nomination in 2000. Yet some Republican Senators
now claim that it is unprecedented to filibuster or deny a circuit
court nominee an up or down confirmation vote on the Senate floor.
Their filibuster of Judge Paez’s
nomination is just one example of Republican filibusters of
Democratic nominees. Others include Dr. David Satcher to be Surgeon
General in 1998; Dr. Henry Foster to be Surgeon General in 1995;
Judge H. Lee Sarokin to the Third Circuit in 1994; Ricki Tigert to
the Federal Deposit Insurance Corporation in 1994; Derek Shearer to
be an Ambassador in 1994; Sam Brown to an ambassador-level position
in 1994; Rosemary Barkett, a Mexican-American attorney, nominated to
the 11th Circuit, 1994; Larry Lawrence, to be ambassador
in 1994; Janet Napolitano at the Justice Department in 1993; and
Walter Dellinger to be Assistant Attorney General for the Office of
Legal Counsel at the Justice Department in 1993.
The nominations of Dr. Foster and Mr.
Brown were successfully filibustered on the Senate floor by
Republicans. Similarly, the nomination of Abe Fortas by President
Lyndon B. Johnson to the Supreme Court of the United States was
successfully filibustered by Republicans with help from some
Southern Democrats.
In addition to the nominees of Democratic
Presidents whose nominations were subject to sometimes fatal delay
on the floor, Republicans made an art form of killing nominations in
Committee so that they would never even have a vote on the floor.
According to the public record, more than 60 of President Clinton’s
judicial nominees were defeated by willful refusal to allow them a
vote, and more than 200 Executive Branch nominees, including several
Latinos, of President Clinton met the same fate, with their
nominations nixed in the dark of night without any accountability.
They were filibustered and never allowed votes on the Senate Floor.
I discussed this history in more detail on February 26, 2003, in the
Congressional Record.
In
addition, in the Congressional Record on March 5, 2003, March 11,
2003, and March 13, 2003, I summarized the history of filibusters of
nominees. I also spoke on May 19, 2003, about the history of Senate
debate and the constitutionality of Rule XXII of the Senate rules.
The fact of the matter is that many nominees have been blocked from
receiving votes throughout the Senate’s history. For example, 25
Supreme Court nominees were not confirmed in the Senate’s history.
Eleven of those nominations were defeated by delay, not by
confirmation votes on the Senate floor, including the nomination of
Justice Fortas. Since the early 19th Century, nominees
for the highest court and to the lowest short-term posts have been
defeated by delay, while others were voted down. Not even all of
President Washington’s nominees were confirmed nor were many of
other presidents, often for political or ideological reasons.
Filibusters and other parliamentary practices to delay
matters were known to the Framers. There was even a filibuster in
the first Congress over locating the capital.
It is too bad that it has come to a filibuster
on Judge Pickering’s nomination, but the White House’s refusal to
accept the Senate’s advice has made it inevitable.
Let me clearly outline, once again, the reasons
why I cannot support this nomination.
Chronicle Of The Pickering Nomination
Judge Pickering was nominated to a vacancy on
the Fifth Circuit on May 25, 2001. Unfortunately, due to the White
House’s change in the process that had been used by Republican and
Democratic Presidents for more than 50 years, his peer review
conducted by the ABA's Standing Committee on the Federal Judiciary
was not received until late July of that year, just before the
August recess. At that point the Committee was concentrating on
expediting the confirmation hearing of the new Director of the
Federal Bureau of Investigation, who was confirmed in record time
before the August recess, and of other nominations.
As a result of a Republican objection to a
Democratic leadership request to retain all judicial nominations
pending before the Senate through the August recess, the initial
nomination of Judge Pickering was required by Senate Rules to be
returned to the President without action. Judge Pickering was
renominated in September, 2001.
Although Judge Pickering's nominations was not
among the first batch of nominations announced by the White House
and received by the Senate, in an effort to accommodate the
Republican Leader, I included this nomination at one of our three
October hearings for judicial nominations. The day before his
hearing, held on October 18, the three Senate office buildings were
evacuated because of the threat of anthrax contamination. Rather
than cancel the hearing in the wake of the September 11 attacks and
the dislocations due to the anthrax letters, we sought to go
forward.
Senator Schumer chaired the session in a room
in the Capitol, but only a few Senators were available to
participate. Security and space constraints prevented all but a
handful of people from attending. In preparation for the October 18
hearing, we determined that Judge Pickering had published a
comparatively small number of his district court opinions over the
years. In order to give the Committee time to consider the large
number of unpublished opinions that Judge Pickering estimated he had
written in his 12 years on the bench, and because of the constraints
on public access to the first hearing, the Committee afforded the
nominee an opportunity for a second hearing.
I continued to work with Senator Lott and, as I
told him in response to his inquiries that December, I proceeded to
schedule that follow-up hearing for the first full week of the 2002
session. There was, of course, ample recent precedent for
scheduling a follow-up session for a judicial nominee. Among those
nominees were participated in two hearing over the last few years
were Marsha Berzon, Richard Paez, Margaret Morrow, Arthur Gajarsa,
Eric Clay, William Fletcher, Ann Aiken and Susan Mollway, among
others. Unlike those hearings, some of which were held years after
the initial hearings, Judge Pickering's second hearing was held less
than four months after the first one and, as promised, during the
first full week of the following session.
I should note that the Committee worked with
Senators Lott and Cochran from the time of the change in the
majority to ensure swift confirmation of other consensus candidates
to the federal bench, and as United States Attorneys and United
States Marshals. On October 11, 2001, the Senate confirmed United
States District Court Judge Michael Mills for the Northern District
of Mississippi; on October 23, James Greenlee was confirmed as the
U.S. Attorney for the Northern District of Mississippi; and on
November 6, Dunn Lampton received Senate approval to be the U.S.
Attorney for the Southern District of Mississippi; Nehemiah Flowers
was confirmed as the U.S. Marshal for the Southern District of
Mississippi on February 8 although he was not nominated until the
week before adjournment last session; and Larry Wagster was
confirmed as the U.S. Marshal for the Northern District of
Mississippi on February 8 although he was not nominated until the
day before adjournment the session before. We moved forward
quickly that year to fill all these crucial law enforcement
vacancies in Mississippi.
Production of Unpublished Opinions
After determining that the number of Judge
Pickering's published opinions was unusually low, and within a week
of the first hearing, the Committee made a formal request to Judge
Pickering for his unpublished opinions. Judge Pickering produced
copies of those opinions to us. They came to the Committee in sets
of 100 or more at a time, including a delivery of more than 200 the
day before Judge Pickering's second hearing, and another 200 or more
nearly a week after. It took three written requests from the
Committee and more than three months, but eventually we were assured
that all available computer databases and paper archives for all
existing unpublished opinions had been searched.
We appreciated Judge Pickering and his clerks
providing the requested materials. Other nominees had been asked by
this Committee to fulfill far more burdensome requests than
producing copies of their own judicial opinions. For example, four
years after he was nominated to the Ninth Circuit, Judge Richard
Paez was asked to produce a list of every one of his downward
departures from the Federal Sentencing Guidelines during his time on
the federal district court. That request required three people to
travel to California and join the judge's staff to hand-search his
archives. Margaret Morrow, who was nominated to a district court
judgeship, was asked to disclose her votes on California referenda
over a number of years and required to collect old bar magazine
columns from years before. Marsha Berzon, who was nominated to the
Ninth Circuit, was asked to produce her attendance record from the
ACLU of Northern California. She was also asked to produce records
of the board meetings and minutes of those meeting so that Senators
could determine how she had voted on particular issues. Timothy Dyk,
nominated to the federal circuit, was asked for detailed billing
records from a pro bono case that was handled by an associate he
supervised at his law firm.
The Judiciary Committee only asked Judge
Pickering to produce a record of his judicial rulings. They are
public documents but were not readily available to the public or the
Committee. Given the controversial nature of this nomination and
the disproportionately high number of unpublished opinions, this
request was appropriate as part of our efforts to provide a full and
fair record on which to evaluate this nomination, as some Republican
Senators have conceded.
I set forth this background, for the record, to
ensure that no one misunderstands how the Committee went about
evaluating Judge Pickering's record. We did not engage in a game of
tit-for-tat for past Republican practices, nor did we delay
proceeding on this nomination, as so many nominations were delayed
in recent years. Rather, the Senate Judiciary Committee seriously
considered the nomination, gave the nominee two opportunities to be
heard, and promptly scheduled a Committee vote. I also postponed a
business meeting of the Committee one week at the request of the
Republican leader, out of deference and courtesy to him.
The responsibility to advise and consent on the
President's nominees is one that I take seriously. I firmly believe
that Judge Pickering's nomination to the Court of Appeals was given
a fair hearing and a fair process before the Judiciary Committee.
Those Members who had concerns about the nomination raised them and
gave the nominee the opportunity to respond, both at his hearing and
in written follow-up questions. In particular, 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 that follow-up
hearing. 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
the Judiciary Committee were subjected to unfair criticism and
attacks on their character and judgment after last year’s Committee
vote defeating the nomination. I was distressed to hear that
Senator Feinstein received calls and criticism, as have I, that were
based on our religious affiliations. That was wrong. I was
disappointed to see Senator Edwards subjected to criticism and
insults and name-calling for asking questions. That was
regrettable. While Democrats and most Republicans have kept to the
merits of this nomination, it is most unfortunate that others chose
to vilify, castigate, unfairly characterize and condemn without
basis some Senators who were working conscientiously to fulfill
their constitutional responsibilities.
Judge Pickering's Performance As A Judge: Reversals
I would like to explain exactly what it is
about Judge Pickering’s record as a judge that so clearly argues
against his confirmation. My first area of concern, which I raised
at his hearing, is that Judge Pickering's record on the United
States District Court bench, as reflected by several troubling
reversals, does not commend him for elevation. Instead it indicates
a pattern of not knowing or choosing not to follow the law, of
relying to his detriment on magistrates and of misstating and
missing the law.
At his hearing, I asked Judge Pickering about
many of these reversals. Looking at his record, I saw that he had
been reversed by the 5th Circuit at least 25 times. And in 15 of
those cases, the 5th Circuit reversed him without publishing their
decisions, which according to their rules and practice indicates
that the appellate court regards its decision as based on
well-settled principles of law. Those 5th Circuit reversals on
well-settled issues indicated that Judge Pickering had committed
mistakes as a judge in either not knowing the law or in not applying
the law in the cases before him. That is fundamental to judging.
I asked Judge Pickering about a toxic tort
case, Abram v. Reichhold Chemicals. There he dismissed with
prejudice the claims of eight plaintiffs because he held that they
had not complied with a case management order. That means he
dismissed them and denied them all rights to bring the case. Again,
the 5th Circuit reversed Judge Pickering's dismissal, holding he had
abused his discretion because he had not tried to use lesser
sanctions before throwing the plaintiffs out of court permanently,
without hearing the case on the merits. Again, the 5th Circuit did
not publish its reversal, indicating that it was settled law that a
dismissal with prejudice was appropriate only where the failure to
comply was the result of purposeful delay or contumaciousness, and
the record reflects that the district court employed lesser
sanctions before dismissing that action. The 5th Circuit found none
of those conditions existed.
Approximately three years before reversing
Judge Pickering in the Abram case, it had reversed him on the
same legal principle in a case called Heptinstall v. Blount.
There the 5th Circuit held that he had abused his discretion in
dismissing a case with prejudice for a discovery violation without
any indication that he had used this extreme measure as a remedy of
last resort. And in its ruling in Heptinstall, the Court
cited to another of its previous rulings which stated the same
principle of law. Thus, this was not a principle with which Judge
Pickering was unfamiliar, he had been reversed on that basis one and
committed the same error again. This was binding 5th Circuit
authority of which he was aware but chose not to follow.
At his hearing, I asked Judge Pickering to
explain his ruling in Abram, especially in light of the prior
reversal by the 5th Circuit on the same principle of law in another
of his earlier cases. And while he offered his recollection of the
facts of the case, he offered no satisfactory explanation of why he
ruled in a way contrary to settled and binding precedent.
I asked Judge Pickering about a First Amendment
case, Rayfield Johnson v. Forrest County Sheriff's Department.
This was a case in which a prison inmate filed a civil rights
lawsuit claiming that a jail's rules preventing inmates from
receiving magazines by mail violated his First Amendment rights. In
an unpublished one-paragraph judgment, Judge Pickering adopted the
recommendation of a magistrate and granted the jail officials'
motion to grant them summary judgment. In other words, he said that
the petitioner's claim of a First Amendment right to religious
materials which he wanted to get through the mail would be denied
without further proceedings.
In its unpublished opinion, the 5th Circuit
Court of Appeals, not considered by many a liberal circuit or one
that coddles prisoners, reversed Judge Pickering and said that the
inmate's First Amendment rights had been violated. In explaining
why he was wrong, the 5th Circuit relied on and cited a published
decision of its own from several years before, Mann v. Smith.
In that case, they struck down a jail rule prohibiting detainees
from receiving newspapers and magazines, holding that it violated
the First Amendment
What was of concern here was that in the
Mann case, the prison officials had made much the same argument
about fire hazards and clogged plumbing that were made by prison
officials and accepted by Judge Pickering in the Johnson
case. This was a case with almost identical facts in his own
Circuit, what we call in the law a case "on all fours" with the
Johnson case, and he did not cite it. Indeed, he turned his
back on it and ruled the other way. We do not know whether he did
not know the law or did not follow it. At the hearing, Judge
Pickering admitted that the magistrate who had worked on the matter
and he had "goofed" and that he was unaware of the law and the
recent, binding precedent in his own circuit.
There are many other reversals, which continue
to concern me for the same reasons that I remain concerned about the
Johnson case and about the Abram case.
One of them is a case called Arthur Loper v.
United States. This is another case in which Judge Pickering
was reversed in an unpublished 5th Circuit opinion, which again
means that he violated "well-settled principles of law." This case
dealt with an enhanced sentence that the 5th Circuit found he had
imposed improperly on a criminal defendant. When the defendant made
a motion for the sentence to be corrected or set aside, Judge
Pickering denied the inmate's motion without giving him a hearing
but without even waiting for the government to respond. On appeal,
the 5th Circuit reversed Judge Pickering's denial of the motion,
noting that the government conceded that the defendant was
correct, and that an error had been made that prohibited the Judge
from imposing the sentence that he did. The 5th Circuit also cited
the statute under which the inmate filed his motion, which requires
that under ordinary circumstances, the trial judge "shall ... grant
a prompt hearing" and "make findings of fact and conclusions of law"
on the petitioner's claims. The 5th Circuit criticized Judge
Pickering for denying the motion in a "one-page order that did not
contain his reasoning." And then the Court went on to remind him
that "[a] statement of the court's findings of fact and conclusions
of law is normally 'indispensable to appellate review.'" Reading
this case, I can only wonder why Judge Pickering did not abide by
the statute and follow the law. Was he unaware of the requirements
of the law or had he decided to follow his own view of what the law
should be on the matter?
There is another case in which Judge Pickering
denied a petitioner's motion for a hearing and missed controlling
Fifth Circuit precedent. The case was U.S. v. Marlon Johnson,
in which a prisoner claimed that his rights had been violated
because of ineffective assistance of counsel and asked that his
guilty plea be set aside. The inmate claimed that he had asked his
counsel to file a direct appeal of his conviction.
Once again, in another unpublished opinion, the
Fifth Circuit reversed Judge Pickering's denial of the inmate's
motion, explaining that the inmate's "allegation that he asked his
counsel to file a direct appeal triggered an obligation to hold an
evidentiary hearing." This time the Court of Appeals relied on two
of its own published decisions for its conclusion, neither of which
Judge Pickering mentioned in his ruling. Again, there was settled
law in the Circuit of which Judge Pickering was unaware of that he
chose not to follow.
I know that something will likely be made of
statistics purporting to show that Judge Pickering does not have an
unusually high Areversal
rate,@ and
that other judges, some appointed by Democrats, have higher numbers
of unpublished reversals. Whatever these numbers purport to
represent about the quantity of Judge Pickering=s
reversals -- and I cannot vouch for them one way or another, not
knowing their source or meaning -- they do not in any way excuse the
poor quality of his underlying opinions.
Judge Pickering's Performance As A Judge: Misstating the Law
In addition to the many times that Judge
Pickering has been reversed by the Court of Appeals for not knowing
or 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.
An example is a statement by Judge Pickering in
a case called Barnes v. Mississippi Department of Corrections.
In an earlier go-round in this case, the 5th Circuit had
reversed Judge Pickering on one point, and in this later opinion, he
tried to explain that they did so, in part, on the basis of a 1993
Supreme Court case called Withrow v. Williams. In
particular, Judge Pickering wrote that the Supreme Court, "acknowledg[ed]
in Withrow that the Miranda warning is not a constitutional
mandate." This was clearly a misreading of Withrow. I trust
that Judge Pickering would now acknowledge that the Supreme Court
recently made clear in Dickerson v. United States that the
Miranda warning is indeed derived from a constitutional mandate.
An example of an entirely unsupported
conclusion comes in a case called Holtzclaw v. United States,
where Judge Pickering presided over a habeas corpus petition by a
federal petitioner whom he had convicted. Although this was the
first habeas petition the prisoner had filed, Pickering termed the
petition frivolous. He regarded the petition as restating claims
that had already been made at trial. He dismissed it, and stated
that he would order prison officials to punish the petitioner if he
filed another frivolous petition. Judge Pickering also conducted a
"survey" of cases within his district to determine how many
frivolous habeas petitions had been filed. However, in the section
of his opinion dealing with the sanctions, he did not cite a single
statute, rule of procedure, local rule or case as support for his
decision. He stated:
In the future, this Court will give serious consideration to
requiring prison authorities to restrict rights and privileges of
prison inmates who file frivolous petitions before this Court.
Specifically, this Court gives notice to Roger Franklin Holtzclaw
that should he file another frivolous petition for habeas corpus in
the future, that the Court will seriously consider and very likely
order the appropriate prison officials to restrict and limit the
privileges and rights of Petitioner for a period of from three to
six months and/or that the Court will also consider other
appropriate sanctions. Petitioner Roger Franklin Holtzclaw is
instructed not to file further frivolous petitions.
Judge Pickering relied on no authority when he
threatened to impose sanctions. This sort of action by a federal
judge is disturbing. Through consideration and passage of habeas
corpus reforms in 1996, Congress has made very deliberate decisions
about what sanctions ought to be imposed for frivolous and
repetitious petitions. In Holtzclaw, Judge Pickering went
beyond Congress' intent, and in what could be described as judicial
activism, threatens sanctions not contemplated by the statute.
Another example of Judge Pickering's
misunderstanding the basics of federal practice and due process
occurred in a case called Rudd v. Jones, where he presided
over a prisoner's civil rights claim before the enactment of the
Prisoner Litigation Reform Act. He properly noted that the Supreme
Court required that a pro se plaintiff is "entitled to have
his complaint liberally construed" and admitted that, under this
rule, the complaint "could be construed to state a cause of
action." Nevertheless, he claimed that the complaint was stated in
only conclusory terms and decided that, "based upon previous
experience with complaints that are couched in such a highly
conclusory fashion, this Court is aware that plaintiffs in such
cases are very rarely successful and very seldom come forward with
any facts that would even justify a trial." Therefore, on his own
motion, the Judge ordered the plaintiff to refile the complaint with
more specific allegations or have the case dismissed before
defendant had to respond. He also did another "survey" to prove
that federal courts were wasting their resources on frivolous
prisoner civil rights claims.
In forcing the plaintiff to refile, Judge
Pickering entirely disregarded Federal Rule of Civil Procedure 8,
which requires only notice pleading. This is a basic tenet of the
American system of jurisprudence, laid out by the Supreme Court in
1957 in Conley v. Gibson.
In yet another case, Judge Pickering disregards
the applicable law. In United States v. Maccachran, he
denied a habeas corpus petitioner's motion for recusal without
referring the matter to another judge. The petitioner filed
affidavits stating that the Judge had a personal bias against him.
The relevant statute, 28 U.S.C.
' 144,
states:
Whenever a party to any proceeding in a district court makes and
files a timely and sufficient affidavit that the judge before whom
the matter is pending has a personal bias or prejudice either
against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to
hear such proceeding.
According to the statute, the Judge had to
allow another judge decide whether he should be recused or not.
However, Judge Pickering did not follow the law, and he decided the
case himself, stating that the affidavit was false. In support of
his decision, he cited the dissent in a Fifth Circuit case.
Judge Pickering=s
Performance as a Judge: Voting Rights Cases
I am also concerned about Judge Pickering=s
rulings and the attitude they signal on one of the most precious
rights we have as Americans: voting rights. In Fairly v. Forrest
County, a 1993 case, Judge Pickering rejected a
Aone-person,
one-vote@
challenge to voting districts that deviated in population by more
than the amount deemed presumptively unconstitutional by the Supreme
Court. He called the doctrine of one-person, one-vote
Aobtrusive,@
expressing skepticism about the role of the federal courts in
vindicating rights under the Voting Rights Act in order to ensure
meaningful participation by all citizens in elections. In that case
he is also denigrates the value of each citizen=s
vote, arguing that the impact of any malapportionment
Ais almost
infinitesimal@
because an individual voters holds so little power. While we have
always known about the power and value of individual votes, the last
Presidential election has certainly taught all of us a new respect
for the impact of each citizen. Judge Pickering=s
disregard for such a vital American right and for the worth of each
American=s
vote is extremely troubling.
Appropriate Role of a Judge: Inserting Personal Opinion, Creating
Impression of Bias
Additional questions arise from another
disturbing trend that emerges from a review of 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.
Employment Discrimination Cases
One entire category of claims in which Judge
Pickering demonstrates hostility and bias is employment
discrimination actions. This is also a category of cases where an
examination of the judge's unpublished opinions was crucial, because
over the last 12 years on the federal bench, he chose to publish
only one of his employment discrimination decisions. The remaining
12 were all among the unpublished decisions he produced to the
Committee upon request after his first hearing last October.
What is significant in these cases are the
times in the unpublished opinions that Judge Pickering went beyond
merely ruling against the plaintiff to make unnecessary,
off-the-cuff statements about all the reasons he believes plaintiffs
claiming employment discrimination should not be in court, and about
the general lack of substance of claims brought under the federal
anti-discrimination statutes.
For example, in a 1996 case, Johnson v.
Southern Mississippi Home Health, Judge Pickering did not limit
his opinion to a legal conclusion based on the facts presented.
Instead he made sure to note that:
"The fact that a black employee is terminated does not automatically
indicate discrimination. The Civil Rights Act was not passed to
guarantee job security to employees who do not do their job
adequately."
In a case called Seeley v.Hattiesburg,
No. 2:96-CV-327PG, (S.D. Miss. Feb. 17, 1998), where he should have
limited himself to the facts and the law, Judge Pickering went on to
comment about other matters relating to race discrimination lawsuits
apparently on his mind at the time, writing that:
"[T]he Courts are not super personnel managers charged with second
guessing every employment decision made regarding minorities. . .
The federal courts must never become safe havens for employees who
are in a class protected from discrimination, but who in fact are
employees who are derelict in their duties."
In a credit discrimination case, Judge
Pickering ruled on the case before him, and then included a lengthy
lecture giving his very personal views on anti-discrimination laws.
He wrote:
"This case
demonstrates one of the side effects resulting from
anti-discrimination laws and racial polarization. When an adverse
action is taken affecting one covered by such laws, there is a
tendency on the part of the person affected to spontaneously react
that discrimination caused the action. Sometimes this is true and
sometimes it is not true. All of us have difficulty accepting the
fact that we sometimes create our own problems. When expectations
are created that are incapable of fulfillment. . . Plaintiffs fail
to recognize that whatever your race - black, white, or other -
natural consequences flow from one's actions. The fact that one
happens to be protected from discrimination does not give one
insulation from one's own actions."
All of this unnecessary editorializing is
ironic given Judge Pickering's testimony at his first hearing in
October of last year, when he explained to the Committee why he has
chosen to publish so few of his opinions over the years. He
explained that, "Americans were drowning in information," and that
there is, "absolutely too much," law written down. He testified
that his view is, "[i]f you are not establishing precedent, why make
lawyers have to read," and that, "there is too much being written
out there." "If you don't have anything to add. . . that is going
to be helpful to somebody," he said, "you are just cluttering up the
information." Tr. at 41, 54.
After reading statements like those I have just
read, it seems to me that a plaintiff with a discrimination claim,
reading or knowing about Judge Pickering's hostile position toward
anti-discrimination laws and claimants, would be justified in
fearing that the Judge had already made up his mind.
Such blatant editorial comments, reflecting
such a narrow view of the important goals of our nation's civil
rights law, and coming from the pen of the one person who is
supposed to guarantee a fair hearing and a just result, are
troubling. Judges are not appointed to inject their own personal
beliefs into a case.
Judge Pickering voiced another disturbing
aspect of his views on employment discrimination cases almost as an
afterthought at his second hearing. In an attempt to explain his
statements on the weakness of many of these cases in response to
Senator Kennedy, Judge Pickering demonstrated a troubling
misunderstanding of the role of Equal Employment Opportunity
Commission in reviewing employment cases. He stated that he
believed that, "the EEOC engages in mediation and it is my
impression that most of the good cases are handled through mediation
and they are resolved. The cases that come to court are generally
the ones that the EEOC has investigated and found that there is no
basis, so then they are filed in court." But this is completely
wrong. The EEOC has a backlog of almost 35,000 cases. Both parties
must agree to mediation. The Commission lack resources. Yet Judge
Pickering had already prejudged employment discrimination cases
filed in court as without merit. That kind of erroneous and unfair
a generalization about the strength of discrimination cases by a
federal judge responsible for presiding over them, was extremely
disconcerting. That a federal judge, on the bench for a dozen
years, could so misunderstand the legal and practical mechanisms
behind employment discrimination cases was disturbing.
Habeas Corpus Cases
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 injected
his personal views.
In a 1995 case, Barnes v. Mississippi
Department of Corrections, Judge Pickering presided over a
habeas corpus case in which a prisoner claimed that his confession
was involuntary because he had been held in custody for more than
three days before being given an initial hearing by a magistrate.
The Judge denied the petition and the 5th Circuit reversed his
decision. After remand, he again denied the petition, stating that
granting such a habeas petition "is far more cruel than denying to a
known murderer a procedural right regardless of how important that
right is." He cited the Bible and Coke's treatise to make the point
that habeas corpus should be limited to petitioners who can prove
actual innocence. That was a misstatement of the law in
contradiction to Supreme Court precedent. He further stated that,
"[i]t is the fundamental responsibility of government to protect the
weak from the strong, but it is also a fundamental responsibility of
government to protect the meek from the mean -- the law-abiding from
the law violating." He cited no legal precedent for this
apparently personal view that society's natural law rights to be
free from crime override the specific protections contained in the
Bill of Rights.
In Drennan v. Hargett, a 1994 case over
which Judge Pickering presided, a habeas corpus petitioner claimed
that he had been denied access to the courts and received
ineffective assistance of counsel. He had pleaded guilty to a
charge of capital murder at age 15 and received a life sentence. He
claimed that his attorney had threatened him with the gas chamber if
he did not plead guilty and that his lawyer did not make important
motions, such as a motion to suppress his confession under
Miranda. He also claimed that he did not know how to obtain
relief from the courts for several years because of his youth and
because his representatives misled him. Judge Pickering denied the
claim, and devoted a third of his opinion, three pages of a
nine-page opinion, to arguing that habeas corpus should not be
allowed unless a petitioner can prove actual innocence. In this
unusual opinion, he cited the Ninth and Tenth Amendments, the
Preamble to the Constitution and the Declaration of Independence in
support of his views, adding that he believes the Bill of Rights is
in tension with the preamble on this point. Again, he cited no
legal precedent for these odd and extremely personal views, almost
entirely unrelated to the controlling law.
And in Washington v. Hargett, a 1995
habeas corpus case, Judge Pickering rejected the plaintiff's request
for DNA testing required to prove his actual innocence, but stated
that an attempt to prove actual innocence was, "the only reason why
this Court or any other federal court should be considering a
petition for habeas corpus," so long after the trial. While that
may be Judge Pickering's personal opinion, it is undeniably contrary
to Supreme Court and statutory law. They state that a prisoner
petitioning for a writ of habeas corpus is contesting the legality
of his detention. The Supreme Court explained as much two years
before Judge Pickering decided this case.
Interestingly, whatever the answer to that
question, in the same case where Judge Pickering declared the
importance of actual innocence, he denied a petitioner the only
thing that could have possibly proved his -- a DNA test. It was in
that case of Washington v. Hargett that Judge Pickering
summarily rejected the plaintiff's motion for a DNA test in order to
prove his claim of innocence. The case involved a rape that
occurred in August 1982, before DNA was generally available and
accepted in the courts. Yet the judge suggested in his opinion that
DNA testing was inappropriate simply because the request came in
1995 -- 13 years after the trial. As he put it:
"Plaintiff had a fair criminal trial. He was,
and is, entitled to nothing more. He was not entitled to a perfect
trial. No such trial can be held. Plaintiff states that he wants
DNA testing now thirteen years later. He wants a new trial. A new
trial, now, thirteen years later, would be much less reliable than
the one that occurred thirteen years ago."
As Judge Pickering may well know, over the last
decade, post-conviction DNA testing has exonerated well more than
100 people, including 11 who were awaiting execution.
I have introduced legislation that would, among
other things, afford greater access to DNA testing by convicted
offenders. Senator Hatch and Senator Feinstein have also introduced
bills to promote the use of DNA testing in the post-conviction
context. In recent weeks I joined with Chairman Hatch and others in
introducing a bill drawn from these earlier efforts. Attorney
General Ashcroft has stated that "DNA can operate as a kind of truth
machine, ensuring justice by identifying the guilty and clearing the
innocent." Judge Pickering appears in this case to have created an
exception to his own oft-expressed view that habeas corpus should be
considered would be to establish actual innocence.
Judge Pickering's Intervention on Behalf of a Hate Criminal
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.
In this 1994 case, United States v. Swan,
Judge Pickering presided over a case brought against three people
accused of burning a cross on the lawn of an interracial couple.
Two of the defendants, one a juvenile and the other with significant
mental disabilities, accepted plea bargains offered by the
prosecution. The third, Daniel Swan, a the only competent adult of
the three, was also offered a plea up to last minute, but chose to
go to trial, and was convicted of all three counts brought by the
Government. The story of what happened next is what troubles me
about Judge Pickering.
But before I get to that, I think it is
important for us to understand exactly what the facts were in the
case. From the trial transcript we know that on a night in early
January of 1994, three young men hanging out and drinking in front
of a convenience store got the idea to go and burn a cross on the
lawn of a local family where the husband, Ernest Polkey, was a white
man, and his wife, Brenda, was African American. Testimony at trial
shows that two of the defendants, Jason Branch, who was at the time
a juvenile, and Daniel Swan, a competent adult, were the moving
forces behind this idea. The third man, Mickey Thomas, had a very
low IQ and mental difficulties. It really was Branch and Swan who
referred to the Polkey family using awful racial slurs, and together
they cooked up this idea.
After deciding what they would do, they moved
into action, and using Daniel Swan’s pickup truck, his wood, his
nails, his gasoline and his lighter, the three men constructed a
cross, took it to the Polkey’s front lawn, leaned it up against a
tree, and lit it on fire.
Not long afterward, the three were caught by
the FBI and all three were charged with the identical counts: 18
U.S.C. sec. 241, conspiracy to deprive victims of their civil
rights, 18 U.S.C. sec. 3631 (a), intimidation on account of race,
and 18 U.S.C. 844(h)(1), the use of fire in the commission of a
felony. All three were also offered a plea bargain which would
result in little or no jail time, and two of them took the offer.
Two of them, Jason Branch, the minor, and Mickey Thomas, who has a
mental disability, took the deal. They decided not to roll the dice
with a jury, and to admit their responsibility for the crime. These
kinds of deals happen every day. They permit the justice system to
function, and they offer defendants opportunities to admit their
guilt.
One of the defendants, Daniel Swan, didn’t take
the offer. Instead, Mr. Swan, who had boasted to friends before he
was caught that he would never do any time even if he was caught,
decided to take his chances in front of a jury. Well, it was not a
wise decision for Mr. Swan, because once the jury heard the evidence
that I recounted earlier, they convicted him on all counts. And
that is where Judge Pickering’s unethical behavior comes in.
Instead of doing what the law required of him
and sentencing Daniel Swan to at least the congressionally required
mandatory minimum sentence of five years for his conviction of the
use of arson in a felony, he started to act like one of Daniel
Swan’s defense attorneys and to advocate for him, insisting that the
Justice Department drop the arson charge so Swan could get a more
lenient sentence.
Why would the Government drop a charge after
having secured a conviction in such a terrible hate crime? Why
would the prosecution agree to imposition of such a reduced sentence
for someone already found guilty by a jury of his peers? According
to documents that the Department of Justice produced to the
Committee only minutes before Judge Pickering's second hearing was
to begin, and documents that they agreed to make public in a heavily
redacted form a week after that, Judge Pickering made them an offer
that they could not refuse. He threatened them. He threatened them
with bad law -- with a decision that would have called into question
the applicability of the arson charge to cross burnings. And he
threatened to make -- and presumably grant his own motion for a new
trial for Mr. Swan -- a motion for which there would have been no
basis in law.
He badgered them, ordering them in
extraordinary terms to consult personally with the Attorney General,
to report on all prior Justice Department prosecutions for cross
burnings, and to agree to dismiss an already secured conviction, in
the face of the fact that the law did not permit the result he
sought. And when the prosecutors, career assistants in the United
States Attorneys Office and career prosecutors in Washington,
refused to cave in to his bullying, Judge Pickering took things a
step further, and he called an old friend, then in a high-ranking
position at the Department of Justice. As he admitted in a letter
to me and in testimony at his second hearing, Judge Pickering,
unhappy with the answer he was receiving from those prosecuting the
case, called the Assistant Attorney General for the Civil Division,
a friend of long standing from Mississippi, to, as he explained it,
express his frustration with the prosecutors. Judge Pickering
insisted in his testimony to the Committee that he did not ask his
old friend to do anything or take any action but he did not deny the
contact.
This sort of contact with the Department of
Justice during pending case is extremely troubling. These sorts of
ex parte contacts are expressly prohibited by every code of conduct
and canon of ethics ever written, and for good reason. The
credibility of our entire system of justice rests on the presumption
that the conduct of every trial, criminal or civil, is fair and
above board, and that no one side has any real or perceived
advantage. Judge Pickering's phone call and actions undermine that
assumption in very disturbing ways.
Judge Pickering and his defenders in this
matter will tell you that he intervened in this case not because he
took pity on Daniel Swan, a convicted hate criminal, but because he
was concerned about the disparity among the sentences handed down to
the three offenders. He blamed the Government for agreeing to lower
sentences for the two parties who pleaded guilty and then
"recommending," as he inaccurately puts it, a higher sentence for
the party who took his chances with a trial. He tried to give the
impression that upon the sentencing for Mr. Swan he was surprised to
learn about certain aspects of the crime and the defendants'
behavior in them. But it is clear, upon examining the record, that
none of the defendants was sentenced until after Mr. Swan's trial,
until after all the testimony about their actions and relative
culpability had been revealed in sworn public testimony. Judge
Pickering is the one who sentenced all these defendants after having
presided over the case.
Moreover, I know of no other criminal cases in
which Judge Pickering intervened based on a concern about disparate
sentencing or another case in which he took action to avoid imposing
a sentence based on a statutory mandated minimum. His defenders
will point to a few cases where he properly showed leniency within
the law, but they are different from this one. In those cases it is
clear he had the legal discretion to reduce sentences, but those
advocating this nomination can point to no specific legal
justification here.
The law has very real consequences, as this
letter from Mrs. Brenda Polkey makes clear. It was sent to me last
year when I was Chairman of the Committee. Mrs. Polkey says:
My now-deceased husband, Ernest Polkey, and I were the victims of a
cross-burning at our home in Improve, Mississippi in 1994. We had
purchased the home in Southern Mississippi while I was still active
military and my husband had retired from the military. The
cross-burning case was prosecuted by the Justice Department in Judge
Charles Pickering’s court.
I write to express my profound disappointment in learning of Judge
Pickering’s actions toward the defendant, Daniel Swan. As you can
imagine, my family suffered horribly as a result of the conduct
committed by Mr. Swan and the two other defendants. My daughter
actually saw the cross in our yard the morning of the incident. I
still have a photograph of the cross that I took that morning to
make sure that the crime was documented properly.
The trial of Daniel Swan was extremely emotional for me and my
family. As a native Southerner, I had grown up in the 1960’s with
violent acts based on race, and I lost a member of my family due to
a racial killing. In ever imagined that violence based on racism
would come my way again in the 1990’s. We helped in the prosecution
of the case, and I testified at the trail. The local NAACP gave me
a certificate for my role in pursuing the case.
I experienced incredible feelings of relief and faith in the justice
system when the predominantly white Mississippi jury convicted
Daniel Swan for all three civil rights crimes. I had hoped against
hope that the jury would do the right thing and convict Mr. Swan of
this horrible deed. The jury came to a guilty verdict on all three
counts after only two hours.
My faith in the justice system was destroyed, however, when I
learned about Judge Pickering’s efforts to reduce the sentence of
Mr. Swan. I cannot begin to explain what his actions have done to
my longstanding opinion that we were correct in helping to prosecute
the case, in trying to bring about justice and in trying to prevent
hate crimes from being committed against other persons. I am
astonished that the judge would have gone to such lengths to thwart
the judgment of the jury and to reduce the sentence of a person who
caused so much harm to me and my family.
I am very much opposed to any effort to promote Judge Pickering to a
higher court. Respectfully yours, Mrs. Brenda Polkey.
When I raise questions about this case and
Judge Pickering’s involvement in the case and suggest it violates
every Canon of Judicial Ethics, it is not just my opinion. It is
the opinion of some of the nation’s foremost legal scholars on
judicial ethics. Let me read to you what some of them have said.
Professor Stephen Gillers of the New York University School of
Law, one of the foremost, if not the foremost, legal ethics experts
in the country, told Senator Edwards after Judge Pickering’s
hearings: “Judge Pickering exceeded his powers as the trial judge
in the Swan case in a way that undermined decisions of the political
branches of government. He then sealed the Order that would have
fully revealed his actions.” The professor concludes that this is a
violation of Canon 2A and 3A(1) of the Code of Conduct for U.S.
Judges because of his failure to respect and comply with the law or
to be faithful to the law. He substituted his judgment not only for
the judgment of the prosecutors, but also for the judgment of the
legislators, this Senate and the House, instead of sticking to his
role as a judge. And by sealing the order that revealed his
position, he made certain that no judicial review of his actions
could occur.
Professor John Leubsdorf, legal ethics
professor and Judge lacey Distinguished Scholar at Rutgers Law
School, agreed with Professor Gillers. Professor Leubsdorf, who has
been studying and teaching Legal Ethics for twenty-five years, has
taught at Columbia, Cornell, and the University of
California-Berkeley’s law schools, and has published articles in the
Harvard, Yale, Stanford, Texas, NYU, Pennsylvania, Minnesota, and
Cornell law reviews, could not have been clearer. After reviewing
the judge’s actions, he concludes that, “[w]hatever Judge
Pickering’s motives may have been, this was no way for a judge to
behave,” and that he “cannot escape the conclusion that Judge
Pickering departed from his proper judicial role of impartiality in
the Swan case to become an advocate for the sentence he
considered proper.”
Steven Lubet, a Professor of Law at
Northwestern University Law School, director of the law school’s
Program on Advocacy and Professionalism, and the author of numerous
articles on legal ethics, reached much the same conclusion. He
tells us that, “Judge Pickering’s actions raise serious questions
under the Code of Conduct for United States Judges. In particular,
it appears that Judge Pickering initiated a prohibited ex parte
communication in violation of Canon 3A(4),” and that his, “extended
efforts to reduce Swan’s sentence for cross burning appear to have
compromised his impartiality, taking him nearly into the realm of
advocacy, thus implicating Canons 2A and 3A as well.”
Other Ethics Concerns
The ethics concerns raised by the judge's
behavior in the cross burning case are not the only ethical problems
Judge Pickering's nomination presents. There is also the very
serious 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 Professor Gillers for NYU
explains, this is a matter of grave concern. The letter, which has
been made a part of the record, recounts the various Canons of the
Code of Conduct for U.S. Judges implicated by this behavior, and is
just another reason why I cannot approve of Judge Pickering's
elevation.
I should note that Judge Pickering's behavior
in this matter is similar to 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 to
the Senate 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 he were confirmed, and for asking for blind
copies of those letters.
The increasing frequency of nominees
campaigning for confirmation to the federal bench is a troubling
development and one that threatens the very independence of our
judiciary. I was concerned about it in 1980 and I remain concerned
about it in 2002.
CONCLUSION
During the course of these proceedings, some
have falsely contended that Democratic Senators have called Judge
Pickering a racist. That did not happen and that criticism is a
smokescreen to obscure the real problems with this nomination. 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 5th Circuit. Some have even insinuated that Senators who oppose
this nomination are anti-Southern or anti-Christian, a smear that is
as wrong as it is ugly. The talking points distributed by the other
side are partisan, political and intentionally misleading. They
have been accepted and repeated by some who have failed to review
the record. That is unfortunate.
I think the nominee's past views and actions
during a difficult time in Mississippi's history were not
irrelevant, but I based my decision on his years on the bench and
the record amassed and reviewed at our hearings.
So let me sum up for my colleagues what Judge
Pickering’s own record makes clear. Judge Pickering’s record is
replete with examples of bad judging and is littered with cases that
demonstrate a misunderstanding of the law in many crucial and
sensitive areas. Judge Pickering record shows a judge inserting his
personal views into his judicial opinions and putting his personal
preferences above the law. It is a record that does not merit this
promotion to one of the highest courts in the land. Based on Judge
Pickering's record, I will vote against invoking cloture, and should
cloture be invoked, I will vote against this nomination.
If Judge Pickering’s nomination is not
ultimately successful, he will nonetheless remain a federal judge of
the Southern District of Mississippi with life tenure. He will be
responsible for presiding over cases and determining matters central
to the lives and well-being of many people in Mississippi and from
elsewhere. He has served as a prosecutor, a state legislator, a
local leader and now as a federal judge.
The oath taken by federal judges is a solemn
pledge to administer justice fairly to those who come before the
court seeking justice. It extends to those who are rich or poor,
white or black, Republican or Democrat, without regard to gender or
sexual orientation, national origin or disability.
Judge Pickering remains a very important and
powerful person in Mississippi. I understand that he may be the
only federal judge who sits in Hattiesburg. The Judge's ability
faithfully to discharge the duties of the office are important every
day, on every case, with respect to every claim and regarding every
litigant. I bear him no malice and wish him and his family well.
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