[Senate Hearing 107-843] [From the U.S. Government Printing Office] S. Hrg. 107-843 CONFIRMATION HEARING ON THE NOMINATION OF CHARLES W. PICKERING, SR. TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SEVENTH CONGRESS SECOND SESSION __________ FEBRUARY 7, 2002 __________ Serial No. J-107-57 __________ Printed for the use of the Committee on the Judiciary 83-959 U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2003 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama MARIA CANTWELL, Washington SAM BROWNBACK, Kansas JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky Bruce A. Cohen, Majority Chief Counsel and Staff Director Sharon Prost, Minority Chief Counsel Makan Delrahim, Minority Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 1 Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 292 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 77 Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 136 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 5 McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 2 Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 136 STATEMENT OF THE NOMINEE Pickering, Charles W., Sr., of Mississippi, Nominee to be Circuit Judge for the Fifth Circuit.................................... 6 Questionnaire................................................ 13 QUESTIONS AND ANSWERS Responses of the Nominee to questions submitted by Senator Biden. 141 Responses of the Nominee to questions submitted by Senator Edwards........................................................ 167 Responses of the Nominee to questions submitted by Senator Feingold....................................................... 171 Responses of the Nominee to questions submitted by Senator Kennedy........................................................ 182 SUBMISSIONS FOR THE RECORD Abbott, Guthrie T., Professor Emeritus, University of Mississippi, University, Mississippi, October 30, 2001, letter. 191 Adelman, Michael, Attorney at Law, Adelman & Steiner, P.A., Hattiesburg, Mississippi, October 29, 2001, letter............. 192 Alston, Alex A., Jr., Attorney at Law, Alston & Jones, Jackson, Mississippi, October 26, 2001, letter.......................... 194 Anderson, Reuben V., Attorney at Law, Phelps Dunbar LLP, Jackson, Mississippi, January 8, 2002, letter........................... 196 Anderson, Thomas C., Attorney at Law, Garrison Scott Gamble & Rosenthal, P.C., Hattiesburg, Mississippi, November 6, 2001, letter......................................................... 197 Aycock, Herman L., Chief of Police (Retired), City of Laurel, Mississippi, Ellisville, Mississippi: February 2, 2002, letter..................................... 198 February 5, 2002, letter..................................... 199 Baltar, John, Jackson, Mississippi, January 30, 2002, letter..... 200 Baltar, Mary, Jackson, Mississippi, January 30, 2002, letter..... 201 Barnes, George L., Rev., Laurel, Mississippi, October 25, 2001, letter......................................................... 202 Barnett, Angela, October 18, 2001, letter........................ 203 Bennett, Richard T., Attorney at Law, Bennett Lotterhos Sulser & Wilson, P.A., Jackson, Mississippi, October 25, 2001, letter... 204 Blackwell, Leonard E., II, Attorney at Law, Blackwell & White, Gulfport, Mississippi, October 26, 2001, letter................ 206 Bolton, Charles, Chief Deputy Sheriff, Forrest County, Mississippi, Hattiesburg, Mississippi, October 30, 2001, letter 208 Breeland, Jace, Tylertown, Mississippi, February 5, 2002, letter. 210 Brinkley, H. Alex, Attorney at Law, McMahan & Brinkley, P.A., Hattiesburg, Mississippi, January 23, 2002, letter............. 211 Brown, Raymond L., Attorney at Law, Brown Buchanan Sessoms, Pascagoula, Mississippi, October 25, 2001, letter.............. 212 Bustin, Carol Ann Estes, Attorney at Law, Bustin Law Firm, Hattiesburg, Mississippi, January 28, 2001, letter............. 214 Chesnoff, David Z., Esq., Attorney at Law, Goodman, Chesnoff & Keach, Las Vegas, Nevada, October 25, 2001, letter............. 215 Clarion-Ledger, Jackson, Mississippi: October 20, 2001, editorial.................................. 216 November 4, 2001, editorial.................................. 217 January 26, 2002, editorial.................................. 219 February 8, 2002, editorial.................................. 220 Cline, Lee W., Attorney at Law, Cline, Ltd., Laurel, Mississippi, January 25, 2002, letter....................................... 222 Colette, John M., Attorney at Law, Jackson, Mississippi, January 17, 2002, letter............................................... 224 Cooke, Michael D., Attorney at Law, Iuka, Mississippi, February 1, 2002, letter................................................ 225 Crosthwait, Frank O., Jr., Attorney at Law, Crosthwait, Terney & Noble, Indianola, Mississippi, October 29, 2001, letter........ 227 Cupit, Danny E., Attorney at Law, Jackson, Mississippi, November 13, 2001, letter............................................... 229 DeLoach, Gus, Laurel, Mississippi, January 24, 2002, letter...... 231 Dillard, W.O. ``Chet'', Attorney at Law, John Arthur Eaves Law Firm, Jackson, Mississippi: letter....................................................... 232 January 23, 2002, letter and attachment...................... 234 Doolittle, Roger K., Attorney at Law, Jackson, Mississippi, January 7, 2002, letter........................................ 238 Dukes, James K., Attorney at Law, Hattiesburg, Mississippi, January 24, 2002, letter....................................... 239 Dukes, James O., Attorney at Law, Bryant, Clark, Dukes, Blakeslee, Ramsey & Hammond, P.L.L.C., Gulfport, Mississippi, October 30, 2001, letter....................................... 241 Dunbar, Jack F., Attorney at Law, Holcomb Dunbar, Oxford, Mississippi, October 25, 2001, letter.......................... 242 DuPree, Hon. Johnny L., Mayor, City of Hattiesburg, Mississippi, October 29, 2001, letter....................................... 243 Dye, Brad, Attorney at Law, Pyle, Dreher, Mills & Dye, P.A., Ridgeland, Mississippi, February 1, 2002, letter............... 244 Edmonson, Hon. Thaddeus, Councilman, City of Laurel, Mississippi, October 29, 2001, letter....................................... 245 Edwards, Hon. John, a U.S. Senator from the State of North Carolina, March 5, 2002, letter and attachments................ 246 Evers, James Charles, Wall Street Journal, February 7, 2002, article........................................................ 268 Fairley, Donnie Ray, Sr., February 5, 2002, letter............... 269 Fairley, Kenneth E., Rev., Hattiesburg, Mississippi: October 30, 2001, letter..................................... 270 February 5, 2002, letter..................................... 271 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, February 22, 2002, letter and attachments........... 272 Fortenberry, Dewin L., Jr., Attorney at Law, Fortenberry Law Firm, PLLC, Mendenhall, Mississippi, January 17, 2002, letter.. 284 Galloway, Ben F., Attorney at Law, Owen & Galloway PLLC, Gulfport, Mississippi, January 17, 2002, letter................ 285 Gambrell, Deborah Jones, Attorney at Law, Deborah Jones Gambrell & Associates, Hattiesburg, Mississippi, October 25, 2001, letter......................................................... 286 Gandy, Evelyn, Attorney at Law, Ingram & Associates, PLLC, Hattiesburg, Mississippi, January 9, 2002, letter.............. 288 Gavin, Milton, Hattiesburg, Mississippi, February 5, 2002, letter 290 Graham, William M., Attorney at Law, Aultman, Tyner, Ruffin & Yarborough, Ltd., Hattiesburg, Mississippi, October 25, 2001, letter......................................................... 291 Graves, Ernest W., Attorney at Law, Laurel, Mississippi, November 1, 2001, letter................................................ 293 Gray, Early M., Taylorsville, Mississippi, October 25, 2001, letter......................................................... 294 Harrison, Charles, Laurel, Mississippi, February 5, 2002, letter. 295 Hattiesburg American, February 3, 2002, editorial................ 297 Holleman, Boyce, Attorney at Law, Gulfport, Mississippi, October 29, 2001, letter............................................... 299 Ingram, Carroll H., Attorney at Law, Ingram & Associates, PLLC, Hattiesburg, Mississippi, January 9, 2002, letter.............. 301 Johnson, Oliver, former member, Forest County Board of Supervisors, Hattiesburg, Mississippi, October 30, 2001, letter 303 Jones County Bar Association, Jones County, Mississippi, October 31, 2001, resolution........................................... 304 Jones, Nora J., Hattiesburg, Mississippi, January 25, 2002, letter......................................................... 305 Jones, William H., Attorney at Law, Petal, Mississippi, October 25, 2001, letter............................................... 307 Jordan, Nathan, Rev., Pastor, St. John United Methodist Church, Hattiesburg, Mississippi, October 26, 2001, letter............. 308 Keith, Damon J., Circuit Judge, United States Court of Appeals for the Sixth Circuit, Detroit, Michigan, November 8, 2001, letter......................................................... 310 King, James R., Vienna, Virginia: December 10, 2001, letter.................................... 312 January 26, 2002, letter..................................... 314 King, Tommy, International Director, International Association of Lions Clubs, Columbia, Mississippi, November 6, 2001, letter... 315 Lawrence, Charles E., Jr., Attorney at Law, Hattiesburg, Mississippi, October 25, 2001, letter.......................... 316 Legal Times, Jonathan Groner, Washington, D.C., February 4, 2002, article........................................................ 318 Lumpkin, Mark D., Attorney at Law, Minor & Associates, Biloxi, Mississippi, January 24, 2002, letter.......................... 321 Mack, Melvin, Jones County Board of Supervisors, Laurel, Mississippi, October 25, 2001, letter.......................... 322 Magee, Johnny, City Councilman, Laurel, Mississippi, October 25, 2001, letter................................................... 323 Marshall, Charles, Member, Forest County Board of Supervisors, Hattiesburg, Mississippi, October 30, 2001, letter............. 325 Matthews, Jolly W., Hattiesburg, Mississippi, October 26, 2001, letter......................................................... 327 Maxey, John L., II, President, Mississippi Chapter-American Board of Trial Advocates, Laurel, Mississippi, February 4, 2002, motion......................................................... 329 McIntosh, Mark F., Senior Litigation Counsel, BellSouth Corporation, Atlanta, Georgia, January 28, 2002, letter........ 330 McMahan, Michael B., Attorney at Law, McMahan & Brinkley, P.A., Hattiesburg, Mississippi: October 25, 2001, letter..................................... 331 January 23, 2002, letter..................................... 333 McTeer, Charles Victor, Attorney at Law, McTeer & Associates, Greenville, Mississippi, October 30, 2001, letter.............. 334 Meadows, Joseph R., Attorney at Law, Meadows Riley Law Firm, Gulfport, Mississippi, October 26, 2001, letter................ 335 Melvin, Leonard B., Jr., Attorney at Law, Melvin & Melvin, Laurel, Mississippi, October 25, 2001, letter.................. 337 Meridian Star, Meridian, Mississippi, February 3, 2002, editorial 339 Miller, Robert A., Attorney at Law, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, Mississippi, November 7, 2001, letter 340 Minor, Paul S., Attorney at Law, Minor & Associates, Biloxi, Mississippi, October 26, 2001, letter.......................... 341 Mississippi Chapter of the Federal Bar Association, Terryl Rushing, President, Jackson, Mississippi, October 26, 2001, letter......................................................... 343 Mississippi Trial Lawyers Association, Shane F. Langston, President, Jackson, Mississippi, October 30, 2001, letter...... 345 Montague, Frank D., Jr., Attorney at Law, Montague, Pittman & Varnado, Hattiesburg, Mississippi, October 26, 2001, letter.... 347 Mullins, William S., III, Attorney at Law, Gibbes Graves Mullins Hortman Harlow Martindale & Bassi, PLLC, Laurel, Mississippi, January 24, 2002, letter....................................... 348 Naylor, Henry E., Councilman, Hattiesburg, Mississippi, October 29, 2001, letter............................................... 350 Northeast Mississippi Daily Journal, Tupelo, Mississippi, January 28, 2002, editorial............................................ 351 Owen, Joe Sam, Attorney at Law, Owen & Galloway, P.L.L.C., Gulfport, Mississippi, January 17, 2001, letter................ 352 Owens, Eugene D., Laurel, Mississippi, October 29, 2001, letter.. 354 Pittman, Edwin L., Jr., Attorney at Law, Hattiesburg, Mississippi, January 25, 2002, letter.......................... 355 Posey, Chris, Chris Posey, Inc., Laurel, Mississippi, October 29, 2001, letter................................................... 356 Royals, Thomas E., Attorney at Law, Thomas E. Royals, PLLC, Jackson, Mississippi, October 29, 2001, letter................. 357 Rube, Melanie, Deputy U.S. Marshal, Hattiesburg, Mississippi, October 25, 2001, letter....................................... 359 Scanlon, Pat H., Attorney at Law, Scanlon, Sessums, Parker & Dallas, Jackson, Mississippi, October 25, 2001, letter......... 360 Schwartz, Scott J., Attorney at Law, Hattiesburg, Mississippi, February 1, 2002, letter....................................... 361 Siggers, Arthur L., Rev., Pastor, Mt. Olive Baptist Church, Hattiesburg, Mississippi, October 31, 2001, letter............. 362 South Central Mississippi Bar Association, James Kearney Travis, III, President, Hattiesburg, Mississippi, October 29, 2001, letter and resolution.......................................... 364 Times of South Mississippi, Hattiesburg, Mississippi, November 28, 2001, editorial............................................ 368 Tollison, Grady F., Jr., Attorney at Law, Tollison Law Firm, P.A., Oxford, Mississippi, October 29, 2001, letter............ 370 Trotter, W.C., III, President, The Mississippi Bar, Belzoni, Mississippi, October 30, 2001, letter.......................... 371 Waller, William L., Sr., Attorney at Law, Waller & Waller, Jackson, Mississippi, January 14, 2002, letter................. 372 Weathers, Joe Mark, Attorney at Law, Hattiesburg, Mississippi, January 30, 2002, letter....................................... 373 Welch, W. Scott, III, President, American Board of Trial Advocates, Jackson, Mississippi, October 25, 2001, letter...... 374 Wilkens, Samuel H., Attorney at Law, Jackson, Mississippi, January 18, 2002, letter....................................... 376 Wilkinson, Gene A., Attorney at Law, Stennett, Wilkinson & Peden, Jackson, Mississippi, January 30, 2002, letter................. 377 Williams, Johnny L., Chancellor, Place Three, Hattiesburg, Mississippi, letter............................................ 378 Wilson, Charles Reagan, Professor of History and Director, Advisory Board for the Institute for Racial Reconciliation, University of Mississippi, University, Mississippi, January 29, 2002, letter................................................... 379 Wingate, Hon. Henry T., District Judge, Southern District of Mississippi, Jackson, Mississippi, October 25, 2001, letter.... 380 Winter, William F., Attorney at Law, Watkins Ludlam Winter & Stennis, P.A., Jackson, Mississippi, October 25, 2001, letter.. 382 NOMINATION OF CHARLES W. PICKERING, SR. TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT ---------- THURSDAY, FEBRUARY 7, 2002 U.S. Senate, Committee on the Judiciary, Washington, D.C The Committee met, pursuant to notice, at 2:07 p.m., in room SH-216, Hart Senate Office Building, Hon. Dianne Feinstein presiding. Present: Senators Feinstein, Leahy, Kennedy, Biden, Kohl, Feingold, Schumer, Durbin, Cantwell, Edwards, Hatch, Thurmond, Grassley, Specter, Kyl, DeWine, Sessions, Brownback, and McConnell. Senator Feinstein. This hearing will please come to order. I would like to begin by announcing what the procedure will be today. I have been asked by the chairman to Chair this hearing and we will proceed according to his request. I will make a brief opening statement. The ranking member will make a brief opening statement. We will then proceed to call Judge Pickering to the witness table. We will ask him to rise and be sworn, and then questioning of the witness will proceed in two rounds of 10 minutes each, alternating sides according to seniority. Speakers will speak in the order of the initial time of arrival; in other words, what we call the early bird rule. If a senior Senator arrives late, a more junior Senator who arrived earlier will speak first. If, at the end of two rounds, there are still Senators with questions to ask, we will extend it to a third round of questioning. OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Let me just proceed now with a brief statement. I think it is very hard to overstate the importance of an appointment to the United States Court of Appeals. The Supreme Court of the United States is our Nation's court of last resort, but it heard less than 80 cases in the 2000-2001 session. In contrast, the Federal Courts of Appeals considered over 27,000 cases during the same period. For so many of the legal injuries for which people seek redress, the Court of Appeals is the last stop, the ultimate decisionmaker. Many of the issues that we wrestle with as a Nation--a woman's right to choose, civil rights, the relationship between church and state--are essentially decided by these courts. Thus, it is imperative that this Committee thoroughly screen candidates for those lifetime appointments, to ensure that they enter the court without bias, with a commitment to upholding the Constitution, and with a recognition of their proper role as judges. Now, Judge Pickering has had one hearing. There were many who thought that, well, the one hearing is done and that should be it. However, I want to point out that that hearing was on October 18, and the Committee had access at the time to only a very slim minority of Judge Pickering's opinions. Judge Pickering, by his own count, has published 95 out of 1,100 opinions he has written. The Committee did not have access to his opinions in October. Simply put, without them, there was an insufficient record to evaluate his nomination. Now, I know that Judge Pickering has spent a lot of time working to retrieve these opinions, and the whole Committee, I want him to know, appreciates his patience and effort. He has given the Committee around 900 of his 1,000 unpublished opinions, though over 200 arrived just yesterday afternoon and another 100 cases remain unaccounted for. I would also just like to note that Judge Pickering's first hearing came under extraordinary circumstances. He first appeared before the Committee, as I said, on October 18 at a hearing room inside the Capitol. The Committee could not use the ordinary hearing room in the Dirksen Building, as the threat of anthrax contamination forced the closure of the Senate office buildings. Access to the hearing and access to the Capitol on that day was very limited. Many community groups called. They were not satisfied with the level of public access to the hearing, given the importance of this appointment and the concerns raised about the nominee. So, today, we will have an opportunity in a minimum of two 10-minute rounds for Senators to ask their questions. Now, if the ranking member--does anyone know if the ranking member is coming? I would defer to him for a statement. Senator McConnell. Senator Feinstein, I believe I am going to make a statement for---- Senator Feinstein. Senator McConnell, on behalf of the ranking member. STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE STATE OF KENTUCKY Senator McConnell. Thank you very much. Today, we examine the life and reputation of Charles Pickering. I hope that we can do this in a fair and impartial manner. From my review of Charles Pickering's record, I have been struck by one resounding virtue: moral courage. As the tide of racial equality swept America in the 1950's and 1960's, it was unfortunately met with fierce resistance in certain areas. Laurel, Mississippi, was one. Unlike New England, integration was not popular in Jones County. Unlike New York, the press was not friendly to integration in Jones County. Unlike large southern cities such as Atlanta and Birmingham, there was no substantial segment of the community that had an enlightened view on race relations. Indeed, the town of Laurel, in Jones County, Mississippi, with a small population, was the home territory of the Imperial Wizard of the Ku Klux Klan, Sam Bowers. In the 1960's, Klan-incited violence escalated in Jones County, Mississippi. The Klan would drive by homes in the middle of the night and shoot into them. The Klan would fire- bomb the homes of African Americans and those who helped them. The Klan would murder its enemies who stood for civil rights. Because these shootings, bombings, and murders violated the criminal law, the victims looked for justice. They found it in Jones County Attorney Charles Pickering. On the one hand, Charles Pickering had his duty to enforce the law. On the other hand, he had public opinion, the press, and most State law enforcement personnel against vigorously prosecuting Klan violence. A 27-year-old Charles Pickering stared in the face his political future, many in his community, and the press, and chose to do his duty of enforcing the law against the men who committed such violence. In the 1960's, in Mississippi, Madam Chairman, this took extraordinary courage. Soon, County Attorney Charles Pickering found that he had to choose again between those in law enforcement who would only go through the motions of investigating the Klan and those who sought to vigorously prosecute and imprison Klansmen. He chose to work with the FBI to vigorously investigate, prosecute, and imprison Klansmen. In the mid-1960's, in Mississippi, this took courage. Then came the threats. The Klan threatened to have County Attorney Pickering whipped. With the Klan already fire-bombing and murdering other whites whom it viewed as helping black citizens, the Pickering family could have easily been next. At night, County Attorney Charles Pickering would come back to his small home and look into the eyes of his wife, Margaret. He would look into the eyes of his four small children, who believed daddy could do anything and who did not understand hate and murder. One can only imagine how his wife, Margaret, would lie awake in fear, hoping that she would hear her husband's footsteps coming home. Charles Pickering had no money to protect his family. He had no press to stand up for him and his family. He had no covering of popular opinion to hide behind, and in this time of hate, bombings, and murder, Charles Pickering reached down deep in his soul and embraced the only thing he did have, his religious faith. He then testified against Sam Bowers, the Imperial Wizard of the Ku Klux Klan, in the fire-bombing trial of civil rights activist Vernon Dahmer in 1967. And Charles Pickering signed the affidavit supporting the murder indictment of Klansman Dubie Lee for a murder committed at the Masonite Corporation's pulpwood plant in Jones County. This took courage. While it is easy in Washington in 2002 to make a speech or sign a bill in favor of civil rights after decades of changed racial attitudes in schools and society and in the press, who among us would have had the courage of Charles Pickering, in Laurel, Mississippi, in 1967? Who among us would have the courage of his wife, Margaret, to stand with him? There are those who would say we are pleased that Pickering was one of the few prosecutors who actually prosecuted crimes committed by the KKK in the 1960's, but he should also have gone further by calling for immediate integration of schools and the workplace. That argument is tantamount to saying we are pleased that Harry Truman integrated the Federal armed forces in 1948, but he should have gone further and called for the integration of the State national guards as well, or to say we are pleased that Lyndon Johnson signed the Civil Rights Act in 1964, after opposing civil rights, but he should have gone further and demanded that all businesses adopt an affirmative action hiring plan. To judge the words and actions of these civil rights champions in the 1940's, 1950's and 1960's by a 2002 standard would leave them wanting. We must remember that in Mississippi and other Southern States in the 1960's, most elected prosecutors sat on their hands when the Klan committed acts of violence. Young Charles Pickering had to deal with white citizens and politicians who resisted integration and resisted civil rights. He had to deal with these people in a language that would not incite further violence and with requests for action that he had a chance of getting people to take. He did so with moral courage, and because he acted with courage at such a young age, Charles Pickering was able to continue with more progressive actions decade after decade. In 1976, he hired the first African American field representative for the Mississippi Republican Party. In 1981, he defended a young black man who had been falsely accused of armed robbery of a teenage white girl. In 1999, he joined the University of Mississippi's Racial Reconciliation Commission, and in 2000 he helped establish a program to deal with at-risk kids, most of whom were African Americans, in Laurel, Mississippi, where 35 years earlier he had backed his principles with his and his family's lives. This, Madam Chairman, is a record of extraordinary courage. It is a record to be commended. In the years since the 1960's, attitudes in Mississippi and elsewhere have dramatically improved. Schools are integrated. The Klan is no longer a powerful force capable of intimidating whole communities, and the support from Mississippians, black and white, men and women, who have known Charles Pickering for decades has been overwhelming. This support no doubt results from the moral courage of Charles Pickering. In 1990, this Committee unanimously and favorably reported the nomination of Judge Pickering, and the Senate unanimously confirmed him to the district court bench. In his 11 years on the bench, he has handled approximately 4,500 cases. In approximately 99.5 percent of those cases, his rulings have stood and have not been reversed. The American Bar Association rated Judge Pickering ``well qualified'' for the Fifth Circuit Court of Appeals. I look forward to today's hearing to review Judge Pickering's record and his fitness for the Circuit Court of Appeals. I am certain that Senator Feinstein will conduct this hearing in the fair and even-handed manner, with which she approaches all of her duties here in the Senate. I will listen to the testimony and review the record, and I will measure the allegations and who makes them against the whole record and the courage of Judge Charles Pickering. I hope this hearing will be free from the half-truths and mischaracterization of his record or allegations of guilt by association that have been proffered against this nominee by some special interest groups. Thank you, Madam Chairman. Senator Feinstein. Thank you, Senator. It is my understanding that in the interest of time, the chairman is going to place his statement in the record. Is that correct? Chairman Leahy. That is right. [The prepared statement of Senator Leahy follows:] Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of Vermont I begin by thanking Senator Feinstein for chairing today's hearing. Judge Pickering was nominated to a vacancy on the Fifth Circuit on May 25. Unfortunately, due to the change in the process that had been used by Republican and Democratic Presidents for more than 50 years, his ABA peer review was not received until late July, 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 nominees to other key posts. As a result of a Republican objection to a 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. The Committee proceeded during the August recess to hold two unprecedented hearings involving other judicial nominations, including a nominee to the Court of Appeals for the Federal Circuit. Judge Pickering was renominated in September. Although Judge Pickering's nomination 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. At that time, on October 18, the three Senate office buildings were closed because of the threat of anthrax contamination. Rather than cancel the hearing in the wake of the September 11 attacks and the anthrax-related closures and dislocations, 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. Thus, today's hearing is the first real opportunity interested citizens will have to witness Judge Pickering's testimony and, for most Senators, the first chance to question the nominee. There is, of course, ample recent precedent for scheduling a follow-up session for a judicial nominee. Among those nominees who participated in two hearings over the last several years were Marsha Berzon, Richard Paez, Margaret Morrow, Arthur Gajarsa, Eric Clay, William Fletcher, Ann Aiken and Susan Mollway, among others. 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. Within a week of the first hearing, the Committee made a formal request to Judge Pickering for his unpublished opinions. Since October, Judge Pickering has been working to produce copies of those opinions to us. In fact, just last week, I was notified that 120 more of his unpublished opinions were discovered in the courthouse where he sits and just yesterday, barely hours before this hearing, another couple hundred opinions were provided. I doubt that anyone has had an opportunity to review those recently provided materials and we will have to determine how many, of what Judge Pickering estimated to be his 1100 unpublished opinions, remain unproduced. I have continued to work with Senator Lott and, as I told him in response to his inquiries in December, I proceeded to schedule this hearing for the first full week of this session. This hearing is being held less than four months after the October 18 session--not years after, as was the case with Richard Paez, William Fletcher and Susan Mollway. Normally, we would be convening in the Judiciary Committee's hearing room. But after we received requests the day before the hearing from Senator Lott's office for 15 seats to be reserved at the hearing and from the Department of Justice for more than 30 seats, we made last-minute arrangements to secure this larger room to accommodate them. Otherwise, every seat in our hearing room would have been reserved for the nominee and the Administration without any access at all to the public. I appreciate that Judge Pickering and his clerks have been providing materials, especially most recently as this hearing date approached. Other recent nominees have been asked by this Committee to fulfill far more burdensome requests than producing copies of their opinions. For example, four years after he was nominated to the Ninth Circuit, Judge Richard Paez was asked to produce a list of every downward departure 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. Judge Paez was also asked to produce docket sheets and attorney fee information on habeas corpus matters brought on behalf of defendants sentenced to death that were then pending before him. 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. 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. While this context is important, I want to ensure that no one misunderstands what we are doing here today. We are not engaging in a game of tit-for-tat for past Republican practices. We have not delayed proceeding on this nomination, as so many nominations were delayed in recent years. Rather, this Committee must seriously consider the nomination. The responsibility to advise and consent on the President's nominees is one that I take seriously and that this Committee takes seriously. This Committee has asked Judge Pickering to produce a record of his judicial rulings. Given the nature of this nomination and given the disproportionately high number of unpublished opinions, this request seems 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. This nomination is not without controversy. Many have written letters in support and in opposition to this nomination. Those letters will be included in the record. This hearing is an important part of the record upon which committee members will rely when asked to decide whether or not to recommend favorably the nomination of Judge Charles Pickering to the United States Court of Appeals for the Fifth Circuit to the full Senate for its consideration. Senator Feinstein. Then we will proceed. Judge Pickering, if you would care to come forward and be seated? Would you please stand to be sworn in? Do you swear that the testimony given before this Committee will be the truth, the whole truth and nothing but the truth, so help you God? Judge Pickering. I do. Senator Feinstein. Thank you. Please be seated. If you would like to introduce any of your family--I know I had the pleasure of meeting your son, so I know at least he is here--if you would like to introduce your family or make some comments to the Committee, we would be very happy to receive them at this time. STATEMENT OF CHARLES W. PICKERING, SR., NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT Judge Pickering. Madam Chairman, I would like to introduce the members of my family who are here today: my wife, Margaret Ann, who was seated next to me; my son, Congressman Chip Pickering, and his wife, Leisha. My daughters, Paige Dunkerton, Allison Montgomery, and Christi Chapman, cannot be with us today, but I am sure they are watching somewhere if C-SPAN is covering this. I won't take the time to introduce my 19 grandchildren, as I did before. But I am happy to have my sister, Ellen, and her husband, Jimmy Walker, and my brother, Gene, and his wife, Karon Pickering, who are with us. I have a number of friends and supporters here that I am happy to have. I will not take the time to introduce them. Senator Feinstein. Thank you very much. Do you have a statement you would like to make at this time? Judge Pickering. I do, Madam Chairman, but I am not sure, with the constraints of---- Senator Feinstein. It is up to you. Judge Pickering. Yes. Well, I would like to make a statement---- Senator Feinstein. Please. Judge Pickering [continuing]. Because there have been a lot of things that have been said that I could not respond to and this is my first opportunity to do that and I would like to set the record straight on some things. Senator Feinstein. Please. Judge Pickering. I would like to express, first of all, my appreciation to Senators Cochran and Lott for their introduction at my last hearing and for their support of my nomination. I would like to briefly talk with you about my time on the bench and the 29 years that I spent practicing law. During my 11 years as a judge, I have done my best to be fair and impartial and to follow the law. I am a firm believer in the adage ``we are a government of laws, not of men.'' I have great respect for the rule of law. In 1990 and again this October, I testified that I firmly believe that whomever one marries, whether of one's own race or of another race, is a matter of personal choice, and no State should pass a law against such marriages. Such laws are, I believe, unconstitutional. The Supreme Court so held in Loving, and I will follow that case. Further, while I have been on the bench, I have demonstrated my ability to do just that. To my recollection, I have had three cases before me involving mixed-race marriages. I had a case before me in which the plaintiff was suing for personal injuries. He was planning a mixed-race marriage. The jury returned a verdict for only the amount of the medical bills. I felt the verdict was inadequate and that the jury had been prejudiced because of the planned interracial marriage and because of race. I set the jury verdict aside. In a criminal case, a young couple who had contracted an interracial marriage pled guilty to drug charges. I treated them fairly. Even since my last confirmation hearing here in October, I received a letter from the wife, who is in Houston, Texas, expressing her appreciation for my fairness and courtesy. In a third case, a young man was convicted of cross burning in the yard of a mixed-race couple. During the sentencing, I described the cross burning as a reprehensible, heinous crime, a despicable act, and that I had no feeling that the incident should be swept under the rug, that such conduct would not be tolerated, that we have got to stamp out that type of conduct, and that the young man was going to the penitentiary. I suggested that while he was in the penitentiary, he should do some reading on maintaining good race relations. Although I have never had an abortion case of any kind to come before me, I have had cases where other issues of sexual privacy were involved. In a trial where homosexual men were the victims of a scam, at the very beginning of the trial it was evident that the defendants intended to mount a defense on gay- bashing. I stopped the proceedings, did not wait for an objection, and I gave the jury a cautionary instruction. I let it be known that there would be no gay-bashing in my courtroom, that homosexuals are entitled to the same protection as everyone else, no more, no less. There was no further gay- bashing in that trial. In another case, a group of lesbians had established a cultural camp in rural Jones County. The local citizens strongly objected. Attorney General Janet Reno attempted to dispatch mediators to mediate the situation under the Civil Rights Act. A group of local citizens filed a lawsuit against Ms. Reno individually and in her official capacity to prohibit her dispatch of the mediators and complaining about comments she had made. I held a conference with the attorneys representing Ms. Reno and the plaintiffs, and recommended to the plaintiffs that they should dismiss their complaint. Ms. Reno's attorneys and the plaintiffs agreed to an order that I recommended. Frank Hunger, who was Assistant Attorney General, later told me of Ms. Reno's appreciation for the courtesy and manner in which I handled her case. In another case where a female was seeking damages for personal injuries, the testimony of one of the witnesses created the impression of a lesbian relationship. In this case, the jury returned a verdict for exactly what the defense attorney suggested. I again felt that the verdict was too low and that the jury had been biased by the impression of a lesbian relationship and race. I also set that jury verdict aside. Madam Chairman, these are the only two jury verdicts that I have set aside in 11 years on the bench. During my time on the bench, I have handled cases where I disagreed with the controlling law, but nevertheless put aside my personal views and followed the law. One of those cases was the Suggs case, which involved ERISA. I feel, and still feel, that the Federal courts have misinterpreted ERISA, contrary to the language of the Act, contrary to congressional intent. The results have been to deprive people of health benefits. I wrote an opinion of some 70 pages, approximately half of which was devoted to analyzing and applying controlling law, and the other half was devoted to explaining why I think Federal courts have misinterpreted the ERISA statute. Despite disagreement, I followed controlling law. However, that part of my opinion disagreeing with the controlling authority--the dicta, if you will--was widely quoted in the House of Representatives this past year in support of a patient's bill of rights. In another case involving the Federal Arbitration Act, I disagreed with the factual determination of the arbitrator. But nevertheless, because the law dictated that I should affirm this opinion, I did. Madam Chairman, on numerous occasions I have had to decide whether I could put aside my personal opinions and follow the law. I have, and I will. I will follow the law even when I disagree with it. Now, I have some comments about the Klan days and about the Sovereignty Commission, if the Chair will allow me time to go over those two issues that have been raised. Senator Feinstein. Of course, you can complete your statement. Judge Pickering. Yes. Senator Feinstein. Because there is such interest, I would urge you to be as brief as you can so we can get to the questions. Judge Pickering. Well, prior to becoming judge, I did serve, as has been mentioned, and I did prosecute and condemn Klan activity. The prosecuting attorney in the Vernon Dahmer case, in Hattiesburg, called and asked if I would come down and testify against the Imperial Wizard of the White Knights of the Ku Klux Klan in 1967, and I agreed to do so. We both agreed that a subpoena should be issued. One was issued. I went and I testified that he had a bad reputation for peace and violence. In 2000, I had a petition filed in my court to release Sam Bowers on habeas corpus. He has since been convicted. Madam Chairman, there have been changes with all of us, with the State of Mississippi. But in the last 5 years, both the murder of Medgar Evers, one of the original civil rights workers in Mississippi, whose brother, Charles Evers, is here in support of my nomination today, was re-tried and the defendant, Byron de la Beckwith, was sentenced and died in prison. Sam Bowers is now in prison in the State of Mississippi in State prison for the fire-bombing death of Vernon Dahmer. The case that I testified in resulted in a hung jury They filed that petition and after I testified against Sam Bowers, I lost my next election. One of the reasons was because of my stand against the Klan. In 2000, when they filed this habeas corpus, they asked me to recuse myself, saying that Sam Bowers and the Klan had been responsible for defeating me in my two races for statewide race. I had a friend who told me that he had infiltrated the Klan for the FBI. He told me of going to Klan meetings in pastures or wooded areas in the middle of the night with torches and Klan speakers perverting Christianity by crossing a sword and a pistol over an open Bible and talking about going out and burning the homes of African Americans and those who defended them. The Klan was committing the same kind of diabolical acts that have recently been committed against America also in the name of religion. He expressed his conviction that these people were dangerous and that someone had to do something about it. He said that after going to Klan meetings where they had been worked into a frenzy by Klan speakers that he had driven by our home to make sure no one was burning it. This was a sobering moment. I also had the experience during that time of going to a funeral home and slipping into the chapel because a Klan informant had called and wanted to give some information. I was not at home, so then he called the district attorney, but he didn't want the district attorney to tell anyone else that he was meeting with them. The district attorney was afraid it was a set-up, so he asked if I could take a gun and go into the funeral home and cover the parking lot while he met with him. I did that. Then I did, as the Senators mentioned, defend this young African-American charged with robbing a white female. That also was not a popular decision. Madam Chairman, I took some stands during this time and although it was costly, I have no regrets. The State of Mississippi--none of our States have been perfect in any of these areas, but we have made tremendous progress. There are those that would say that we would have made that progress without the intervention of the FBI. I did not believe it then and I do not believe it now. We would not have made progress and they would not have obtained those rights had it not been for the brave young men and women who took a stand to obtain those rights, the massive infusion of FBI agents. And, yes, I will say that we would not have made the progress that we made if it had not been for some local officials who were also willing to stand and take a stand in that area. Now, the Sovereignty Commission issue: In 1990 when I testified before this Committee, Senator DeConcini explained that the Sovereignty Commission was a State-funded group which was established in 1956 as a response to increased Federal intervention in State matters, especially those pertaining to civil rights. He asked me why, as a State Senator between 1972 and 1978, I voted to seal the records of the commission, and I explained that I did so because that was the only alternative, that the choice was between destroying them or sealing them and that I voted to seal them. Now, I told him that during the time that I was in the State Senate, I do not recall really the commission doing anything. It really was de facto abolished; it was not functioning. It was something that was still on the books and there was a disagreement as to how to handle it, how to get rid of it, since it was an existing agency. I testified that I was never an officer of the Sovereignty Commission, that I never had any contact with that agency, that I disagreement with the purposes and the methods and some of the approaches that they took. That was my testimony in 1990 based upon my recollection of events that had occurred some 13 to 18 years before. After reviewing the records, I can say the following today. First, I was not an officer of the Sovereignty Commission. My recollection in 1990 was completely accurate on that account. Second, my record as a county attorney from 1964 to 1968, when I assisted the FBI in investigating and prosecuting the Klan's attacks on African-Americans and civil rights workers, showed that I disagreed with the commission's efforts against increased Federal law enforcement intervention in State matters pertaining to civil rights. And I have already told you that, in my opinion, we would not have solved that problem without that intervention. So my recollection in 1990 on that account was entirely accurate. Third, the choice in 1977 was to abolish or to seal the records, and my recollection on that account was correct. As an aside, although I had not been asked about my pre-1977 votes regarding the Sovereignty Commission, my review of the records show that I voted for two appropriation bills for the commission prior to 1977. It is my understanding that the commission still had some old employees, but its days of high- profile investigations were long over. The reason for not voting against these appropriation bills was practical politics. I could have taken a single stand in 1972 to de-fund the commission. As a first-year State Senator, however, my effort would have failed. There was simply not enough votes in the senate to kill the commission in 1972. Indeed, an attack on the commission in 1972 would have done more harm than good by causing the old supporters of the commission to rally support for it again. By 1977, however, there were a majority of senators who were willing to vote to abolish the commission and that is how I voted. Fourth, my view of the record has shown that my recollection in 1990 that I had no contact with the Sovereignty Commission was partially accurate and partially inaccurate. I never attended a hearing or a meeting of the commission, and never participated in helping the commission investigate a civil rights organization or any other organization or person. My 1990 recollection was accurate to the extent that it had to do with the main purposes of the commission, which was civil rights. Next, my review of a document that was released after my 1990 testimony shows that I did have one brief contact 18 years earlier, in 1972, as part of a group of State legislators who asked a commission employee to be kept informed about a pulpwood haulers union. While this document has refreshed---- Chairman Leahy. Judge, I am sorry. You asked the employee what? Judge Pickering. I asked the employee--as I recall it, Senator, I was going down the corridor of the capital and someone called me over and introduced me and said this is an employee of the capital. He said, I have some information about activities in your area, Masonite plant, union organizing. And at that time, we had just gotten through this strike. The Ku Klux Klan had infiltrated the labor union to the point that when the strike was over, the AFL-CIO took over the local union and placed it under a trusteeship. They had murdered a security guard. They were shooting into homes and beating people. And as he made this statement that he had this information, we were concerned that there be no further violence at the Masonite plant and I made, to the best of my recollection-- Senator, I don't have a very specific recollection, but a vague recollection that I said, well, keep me informed if you find out anything that is going on there that would be detrimental to our area. That is the last that I recall of any contact in that area. Now, I also--one other comment I should make in that regard is that the Governor and lieutenant Governor, by law, were ex officio members of the Sovereignty Commission. From 1961 to 1966, I was law partners with Carroll Gartin. He was lieutenant Governor from 1964 until his death in 1966. Additionally, William Winter was lieutenant Governor during my first 4 years in the senate. Carroll Gartin was defeated for Governor in 1959 by segregationist Governor Ross Barnett and the White Citizens Council. Governor William Winter was a member of President Clinton's Commission on Race and is one of the most respected leaders of Mississippi promoting better race relations. I talked with Governor Winter this morning and I learned that he had issued a statement yesterday condemning the guilt by association of implying that Carroll Gartin, who is now deceased, was a racist. Governor Winter and Governor Gartin both were members of this commission ex officio. I had regular contact with both of these gentlemen during that timeframe, but I have no recollection of ever discussing the Sovereignty Commission with either one of them. The Governor was also a member of the commission, as were other public officials, and I would have contact on official business with them, but I remember no contact with any of these relative to the Sovereignty Commission. Additionally, when I started cooperating with the FBI, I was still practicing with Carroll Gartin. Carroll Gartin was aware of what I was doing and he never criticized nor requested that I back up. Madam Chairman, if I might say just one brief thing, when the possibility arose of my being nominated to the Fifth Circuit, I had no intention or thought of becoming involved in any cause or in anyone's politics. I was simply interested in being promoted to the next court up to finish out the final few years of my judicial career. The charges that have been made against me have been hurtful and they have been painful. I have a record of standing up for equal protection, respecting the rule of law, and making efforts to promote racial harmony for more than four decades. I am proud of that record. I appreciate the fact that you did give me the opportunity to respond and I will be happy to respond to your questions. 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Thanks very much, Judge. We certainly appreciate that. Let me just tell you why I think this is so important. There are many who believe that your seat on the Fifth Circuit is really going to be pivotal on many critical questions that are very controversial in our society. I would like to confine my questions on this round to three of those issues. The first is a woman's right to choose, the second is appropriate regulation of weapons, and the third one is civil rights. So let me begin with the first question. In your October 2001 hearing, you stated that you intend to follow Supreme Court precedent on the issue of choice. Now, I am trying to reconcile your testimony with your years of advocacy against a woman's right to choose. I am particularly concerned about your vote as a Mississippi State Senator for a resolution endorsing a constitutional amendment to ban abortion, except in the case of the death of the mother or rape. As you know, this would substantially overturn Roe v. Wade, which is the case which essentially provides for choice within certain constraints. The resolution you voted for stated in part, and I quote, ``All human life is entitled to the protection of laws which may not be breached by act of any court or legislature, or by any judicial interpretation of the Constitution of the United States.'' My question is can you explain your support for this amendment and for laws that may not be abridged by any judicial interpretation of the Constitution of the United States? Are there certain laws that trump the Constitution? Judge Pickering. No, there are no laws that trump the Constitution. Madam Chairman, I recognize and know the difference between a personal opinion or view and a political position or view and a judicial decision. When I take an oath as a judge to uphold the Constitution of the United States, that means to uphold the Constitution as interpreted by the Supreme Court, and I will do that. Senator Feinstein. And what is your position today on a constitutional amendment to ban abortion? Judge Pickering. Well, you know, my personal views, I think, are immaterial and irrelevant, and it would be inappropriate for me to share my personal views. I will tell you that I will follow the Constitution and I will apply the Supreme Court precedent. Senator Feinstein. Thank you very much. Let me go to the issue---- Judge Pickering. And I have, Madam Chairman. I have shown that I can take a position that is a legal position, regardless of what my personal view is. I have demonstrated that in 10 years on the bench. Senator Feinstein. Thank you. Let me go to the issue of guns. In United States v. Lopez, the Fifth Circuit, and later the Supreme Court, struck down a law regulating guns near schools based on the argument that Congress had overstepped its bounds. This case joined several cases in recent years that have challenged the traditional role of Congress in addressing issues of national concern with national regulations. I am concerned that this trend threatens to prevent Congress from addressing problems that the Nation is asking us to address-- choice, guns, and others. I would like to ask you to speak to this case and your view of it. Did Lopez represent to you one step in a continuing trend toward limiting congressional power to legislate? Did it strike the proper balance? And, specifically, please comment on the extent to which you believe that Congress can regulate in the area of dangerous firearms, particularly when those weapons travel in interstate commerce, affect commerce and tourism, and have such a devastating impact on the children of this country. Judge Pickering. Madam Chairman, I have already addressed that issue. I had one of the original Brady gun cases filed in my court and I found that that was a proper exercise of congressional authority. I upheld the constitutionality of it. I did not uphold the direction of the sheriff to check records, but I found that it was severable and that the rest of the law was enforceable. Senator Feinstein. So then you would support the role of Congress to regulate in this area? Judge Pickering. I did so. I found that to be true in that case. Senator Feinstein. Thank you very much. Now, let me just touch on my civil rights question. The Fifth Circuit has the largest percentage of minorities of any circuit in the country. If you are confirmed, you will be rendering decisions in a circuit where 43 percent of the population comes from minority groups. In light of this, I am concerned about a number of votes you cast as a Mississippi State Senator on the issue of civil rights for African-Americans and other minorities. And you touched on some of this, but let me quickly state it. You voted in 1972 and 1973 for appropriations for the Sovereignty Commission. As you pointed out, that was an organization established in the 1950's to oppose desegregation in Mississippi. In 1973 and 1975, you voted for reapportionment plans that continued to provide for county-wide voting in State Senate elections rather than creating single-member districts, thus diluting African-American voting strength. In 1976 and 1979, you voted for open primary legislation that abolished party primaries and eliminated the possibility of winning a general election with less than a majority vote. One of your three African-American colleagues in the Mississippi House argued that, and I quote, ``an open primary bill had racial overtones because it countered the effects of a potential block vote by the black community.'' How would you explain each of these votes to the 12 million minority residents of the Fifth Circuit? And looking back on these votes, would you cast the same votes today that you did in the 1970's? Judge Pickering. Madam Chairman, on the open primary bill, I did not view it at all as eliminating the possibility of anyone winning an election. The truth of the matter is that African-Americans did not vote in Mississippi in any numbers at all until 1971. So at the time--and incidentally, on that election I ran--I was a Republican nominee for the State Senate. Mayor Charles Evers was running as an independent for Governor that year, and he and I were on the ballot that was distributed in the African-American community. They knew my record of what I had done previously and I received two-thirds of the African-American vote. Now, the open primary bill from my standpoint--and, again, I have indicated to you that I know the difference between political decisions and judicial decisions. At that time, I felt that one of the reasons the Republican Party had not made more progress was because all of the voters, practically all of them--and whenever I am talking about voters at that time, I am basically talking about white voters because this was just--the African-American vote was something that had just come on the scene. You must realize how much progress we have made since that time. It is hard to realize that that was the first year that they really participated. Well, it was my feeling, and the reason I supported the open primary bill--there were not more than one or two instances where any African-Americans had won-- I didn't know of any, but there might have been some in other parts of the State where they had won in that manner, but that was not a general practice. I saw it as a vehicle for the Republican Party to make progress because if the voters--the voters were not going to come vote in a Republican primary because the candidates were all in the Democratic primary. The candidates weren't going to come run in the Republican primary because the voters were in the Democratic Party. So you had a situation of which comes first, the chicken or the egg, and I felt like this would give an opportunity for the party to grow and that is simply the reason I was for an open primary. Now, as the redistricting plans, yes, if I was voting on those measures today, I would vote differently. At that time, we did not have the information that we have now to break down with the computers and did not have the ability that you do. And reapportionment has changed drastically. I was elected in a--when I went to the Senate, reapportionment plan already there, and these plans had to be approved by the Justice Department. So the plan we adopted could not go into effect without being approved by the Justice Department. So I had no intent at that time of depriving anyone of the opportunity to elect someone to office. In fact, I don't recall very much debate about the issue. Going back that far, I am sure that if you all--perhaps maybe you wouldn't have the same, but remembering the bills you--unless it was something that you were involved in, you don't have that much specific recollection. I was very much involved in open primary. I remember that, but the others I don't remember that much about. As far as the Sovereignty Commission, there was an effort, as I recall--and, again, I thought when I testified before that it had ceased to be functioning when I arrived at the senate. It now turns out that it functioned to some degree for a year- and-a-half after I was there. Governor Winter was on that commission during that time and he and I talked about it briefly this morning. But I was trying to get ready for my testimony, so I didn't have time to have a long conversation with him about it. But there was an effort, as I recall, to try to change the direction of it. We felt that it had too much baggage, it had done too much wrong, it had to be abolished, and we did. Senator Feinstein. But you voted for appropriations to support it. Judge Pickering. Apparently, I did. I have no independent recollection of it, but the records indicate that. Senator Feinstein. Thank you. I see my time is up and I will call on the ranking member, Senator Hatch. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator Hatch. Well, thank you, Madam Chairman, and thank you for being willing to grant me just a little bit extra time as ranking member to make my opening statement and, of course, hopefully ask a couple of questions. I would like to introduce several distinguished Mississippians who are here today in support of Judge Pickering. These individuals have known Judge Pickering for many years and know his strong record on civil rights and his fairness as a judge. So I want to recognize just a few of these individuals. Mr. Charles Evers--if you would stand up, please, sir---- [Mr. Evers stood.] Senator Hatch [continuing]. Brother of slain civil rights leader, Medgar Evers. He is a civic leader in Mississippi and has held numerous positions, including Mayor of Fayette, Mississippi. We are proud to have you here. Frank Montague, former President of the Mississippi Bar Association. [Mr. Montague stood.] Senator Hatch. The Honorable Johnny Williams, Chancery Judge of Forrest County, Mississippi. [Judge Williams stood.] Senator Hatch. We are so proud to have you here, both of you. Mr. Mike McMahan, a trial lawyer in Hattiesburg, Mississippi, who practices in Judge Pickering's courtroom on a regular basis. We are proud to have you here, as well. [Mr. McMahan stood.] Senator Hatch. Mr. James King, who is the first African- American hired to work as a field representative by the Mississippi Republican Party. He was hired by Charles Pickering when he was directing the party in the 1970's. [Mr. King stood.] Senator Hatch. So we are honored to have all of you here, and others as well. This is the second hearing that this Committee has convened on the nomination of Charles Pickering, Sr., to be Judge of the United States Court of Appeals for the Fifth Circuit. I am aware of some of the allegations that have been levied against Judge Pickering and I have been interested in hearing his response here today, as I feel sure that we will during the course of this hearing. I am, however, troubled at what appears to be a national agenda by a coalition of leftist interest groups who have spent months hunting around for an excuse to use the Pickering nomination as a way to attempt to paint this administration's nominees as extreme. Although I am concerned by the underlying agenda, I believe they have picked the wrong nominee for that. There appears to be a real disconnect here. We have received nearly 100 letters of support for Judge Pickering's nomination to the Fifth Circuit. They include letters from 18 current or former presidents of the Mississippi State Bar. We have received letters from 27 members of the African-American community, including 4 present or former NAACP officials, 10 public officials and 4 pastors. Eighteen self-professed Democrats have sent letters, including two former Governors and three former lieutenant Governors. And we have received letters from 57 practicing attorneys, including 5 civil rights attorneys, 13 criminal defense attorneys, 10 plaintiff's lawyers, and 14 civil defense lawyers. Any judge that can get along with that crowd is doing pretty good, in my opinion. Madam Chairman, I would like to submit copies of these letters for the record. Some of the Mississippians who have written us have made the trip here to D.C. to show their support for Judge Pickering. One such supporter, as I have mentioned, is Charles Evers, brother of slain civil rights leader Medgar Evers. In an editorial that appeared in today's Wall Street Journal, Mr. Evers documented Judge Pickering's commitment to civil rights over the past four decades, which has included testifying against the Imperial Wizard of the Ku Klux Klan in the 1960's, hiring the first black political staffer in the history of the Mississippi Republican Party in the 1970's, representing an African-American man accused of robbing at knife-point a 16-year-old white woman in the 1980's, and leading a charge to establish the Institute of Racial Reconciliation at the University of Mississippi in the 1990's. Mr. Evers explained his reasons for coming forward in support of Judge Pickering as follows, quote: ``In recent days, I have been saddened and appalled to read many of the allegations which have been put forth about Judge...Pickering...These allegations are mostly made by groups with a Washington, D.C., address and a political agenda, not by anyone with real knowledge of Judge Pickering's long and distinguished record on civil rights. As someone who knows Judge Pickering and is familiar with his commitment on matters of race, I could not sit by and watch these groups' attempts to destroy a good man. Let me tell you about the Charles Pickering many of us in Mississippi have known for well over 30 years,'' unquote. Madam Chairwoman, I would like to submit a copy of this editorial for the record as well. Senator Feinstein. Without objection. Senator Hatch. Others who could not be here today nonetheless wrote in ardent support of Judge Pickering. For example, Jack Dunbar, former President of the Mississippi Bar, wrote, quote, ``I am a Democrat and would not want you to confirm any person to the Federal courts of this nation who I felt was gender or racially biased. I have never known Judge Pickering to be a person or judge that was anything other than fair and impartial in his conduct toward women or minorities,'' unquote. William Winter, former Democratic Governor of Mississippi, wrote about Judge Pickering, quote, ``While he and I have not always been in agreement on certain public issues, I know he is a man of reason and sound judgment. He is certainly no right- wing idealogue. He will bring a fair, open and perceptive mind to the consideration of all issues before the court...He has been one of this state's most dedicated and effective voices for breaking down racial barriers,'' unquote. And Shane Langston, President of the Mississippi Trial Lawyers Association, wrote of Judge Pickering, quote, ``We know that he applies the law fairly and equally with regard to economic status, party affiliation, race, sex, or religion...Many members of the MTLA are African-Americans. We represent tens of thousands of African-Americans. We prosecute more race discrimination cases and claims of civil rights violations than any other legal association in the State of Mississippi. Members of our association and I represented the State conference of the NAACP in a historic challenge to the 'Mississippi State Flag' regarding its divisive Confederate battle symbol. Our organization would never support a judicial candidate with a record of hostility or unfairness toward litigants claiming civil rights violations,'' unquote. These Mississippians, who know Judge Pickering best, urge his confirmation. Those fighting Judge Pickering's nomination, in contrast, seem to consist primarily of a host of Washington lobbyists representing leftist special interest groups whose main goal is to fight the Pickering nomination in an organized attempt to change the ground rules and impose their political litmus test for all of President Bush's judicial nominees. After an 8-year hiatus, these groups are back on the scene, ready to implement an apparently vicious strategy of ``Borking'' any judicial nominee who happens to disagree with their view of how the world should be. I really like the open- mindedness of these groups to views different from theirs. An article in Monday's Legal Times provides a glimpse of what is going on behind the scenes of this confirmation hearing. The article reported, quote, ``As a young lawyer in Jones County, Mississippi, in the 1960's, Charles Pickering Sr. helped put Klansmen in jail. In the early 1990's, when preservationists and black activists clashed over a 'colored only' sign in a county courthouse, Pickering helped craft a compromise that the black community applauded. And as a Federal trial judge, Pickering has tried to keep young African- Americans out of the criminal justice system, convening a group of local civic leaders to try to solve the problem. When the Senate Judiciary Committee meets February 7 to consider Pickering's nomination to the U.S. Court of Appeals for the 5th Circuit, his liberal opponents won't be focused on these aspects of the nominee's record. Liberal activists have combed through the decisions that Pickering has written in 11 years as a U.S. district judge in Hattiesburg, Mississippi, and have concluded that Pickering's confirmation 'poses a grave danger to our rights and liberties.' But a Legal Times analysis of Pickering's important rulings, as well as interviews with community leaders in his home state, offers an alternative view to the liberals' conclusions that Pickering is racially insensitive and indifferent to constitutional rights.'' The article continued, quote, ``[A] look at the 64-year-old Pickering's record shows that although he has often ruled against civil rights claims, the facts of the cases have often tilted strongly against the litigants claiming discrimination. And although in some voting rights cases he has doubted the correctness of relevant Supreme Court decisions, he has followed the law in making his rulings,'' unquote. Madam Chairwoman, I ask to submit the full text of this article for the record. Senator Feinstein. Without objection. Senator Hatch. It is against this backdrop that we must examine the allegations we have heard and evaluation their credibility. I am concerned about the tenor and the tone of the attacks that intolerant leftist special interest groups have launched against Judge Pickering because they indicate to me a broader agenda at work here. I see these attacks as part of an organized campaign by the usual suspects to, quote, ``change the ground rules,'' unquote, for the confirmation of Federal judges. This is precisely what some professors and some activists advocated to the 42 Democrat Senators who attended a retreat last year in Pennsylvania, as reported by the New York Times, if that report is accurate. The goal of that retreat was to plot a way to hinder the confirmation of President Bush's judicial nominees, according to the Times. The conclusion they reached, according to someone in attendance who was quoted by the Times, was, quote, ``for the Senate to change the ground rules,'' unquote. Today's hearing is the culmination of nearly a year of effort to change the ground rules by injecting a political litmus test into the confirmation process. We have even had hearings on injecting political ideology into the confirmation process. Even Lloyd Cutler, former President Clinton's White House Counsel, thought this strategy was misguided. Of course, those legal experts who were invited to testify at the first of these hearings by my Democratic colleagues all testified that injecting politics into the confirmation process is the course the Senate should take. I think that is pathetic. To further put this hearing in the appropriate context, I would like to make an additional observation about how very easy it is to make a political statement in Washington, D.C., in 2002, before a friendly crowd who wants to hear it, and indeed demands to hear it, given their political muscle. It is quite another thing to testify against the Imperial Wizard of the Ku Klux Klan in Mississippi in 1967, as Charles Pickering courageously did, despite great risk to himself and his family. Although the physical safety of Judge Pickering and his family remained intact, his political career was not so lucky. He was defeated in his next election after testifying against the KKK. Years later, the former Imperial Wizard against whom he testified claimed credit for defeating Judge Pickering's bid for the U.S. Senate in 1966 and for State Attorney General in 1979. Any Washington interest groups who question Judge Pickering's commitment to civil rights would do well to remember this. Now, I have a number of questions, but I will reserve those for the second round, if there is one. Senator Feinstein. There will be one. Senator Hatch. If there will be one, I will reserve those, and I appreciate you giving me just that little additional time. I don't mean to malign anybody here, but I don't want you maligned either. [Laughter.] Senator Hatch. Well, truth is truth. I don't want you maligned either. And I will tell you something: I get a little sick of some of this stuff that happens about every time we get a Republican President. So I just wanted to make these points and I think they are points that needed to be made. Thank you, Madam Chairman. [The prepared statement of Senator Hatch follows:] Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah This is the second hearing that this Committee has convened on the nomination of Charles Pickering, Sr., to be a judge on the United States Court of Appeals for the Fifth Circuit. I am aware of some of the allegations that have been levied against Judge Pickering, and I am certainly interested in hearing his response, as I feel sure that we will during the course of this hearing. I am, however, troubled by what appears to be a national agenda by a coalition of left-wing interest groups who have spent months hunting around for an excuse to use the Pickering nomination as a way to attempt to paint this Administration's nominees as extremist. Though I am concerned by the underlying agenda, I believe they have picked the wrong nominee for that. There appears to be a real disconnect here. We have received nearly 100 letters of support for Judge Pickering's nomination to the Fifth Circuit. They include letters from 18 current or former Presidents of the Mississippi State Bar. We have received letters from 27 members of the African-American community, including 4 present or former NAACP officials; 10 public officials; and 4 pastors. Eighteen self-professed Democrats have sent letters, including 2 former Governors and 3 former Lieutenant Governors. And we have received letters from 57 practicing attorneys, including 5 civil rights attorneys, 13 criminal defense attorneys, 10 plaintiff's lawyers, and 14 civil defense lawyers. Some of the Mississippians who have written us have made the trip here to DC to show their support for Judge Pickering. One such supporter is Charles Evers, brother of slain civil rights leader Medgar Evers. In an editorial that appeared in today's Wall Street Journal, Mr. Evers documented Judge Pickering's commitment to civil rights over the past four decades, which has included testifying against the Imperial Wizard of the Ku Klux Klan in the 1960s; hiring the first black political staffer in the history of the Mississippi Republcan Party in the 1970s; representing an African-American man accused of robbing at knife point a sixteen year old white woman in the 1980s; and leading the charge to establish the Institute of Racial Reconciliation at the University of Mississippi in the 1990s. Mr. Evers explained his reasons for coming forward in support of Judge Pickering as follows: ``In recent days, I have been saddened and appalled to read many of the allegations which have been put forth about Judge . . . Pickering . . . . These allegations are mostly made by groups with a Washington, D.C., address and a political agenda, not by anyone with real knowledge of Judge Pickering's long and distinguished record on civil rights. As someone who knows Judge Pickering and is familiar with his commitment on matters of race, I could not sit by and watch these groups' attempts to destroy a good man. Let me tell you about the Charles Pickering many of us in Mississippi have known for well over 30 years.'' Others who could not be here today nevertheless wrote in ardent support of Judge Pickering. For example, Jack Dunbar, former President of the Mississippi Bar, wrote, ``I am a Democrat and would not want you to confirm any person to the federal courts of this nation who I felt was gender or racially biased. I have never known Judge Pickering to be a person or judge that was anything other than fair and impartial in his conduct toward women or minorities.'' William Winter, former Democratic Governor of Mississippi, wrote about Judge Pickering, ``While he and I have not always been in agreement on certain public issues, I know that he is a man of reason and sound judgment. He is certainly no right-wing ideologue. He will bring a fair, open and perceptive mind to the consideration of all issues before the court--. He has been one of this state's most dedicated and effective voices for breaking down racial barriers.'' And Shane Langston, President of the Mississippi Trial Lawyers Association, wrote of Judge Pickering, ``We know that he applies the la fairly and equally with regard to economic status, party affiliation, race, sex or religion--. Many members of the MTLA are African-Americans. We represent tens of thousands of African- Americans. We prosecute more race discrimination cases and claims of civil rights violations than any other legal association in the State of Mississippi. Members of our association and I represented the State Conference of the NAACP in a historic challenge to the 'Mississippi State Flag' regarding its divisive Confederate battle symbol. Our organization would never support a judicial candidate with a record of hostility or unfairness toward litigants claiming civil rights violations.'' These Mississippians, who know Judge Pickering best, urge his confirmation. Those fighting Judge Pickering's nomination, in contrast, seem to consist primarily of a host of Washington lobbyists representing left-wing special interest groups whose main goal is to fight the Pickering nomination in an organized attempt to change the ground rules and impose their political litmus test for all of President Bush's judicial nominees. After an eight-year hiatus, these groups are back on the scene, ready to implement an apparent vicious strategy of Borking any judicial nominee who happens to disagree with their view of how the world should be. I really like the open- mindedness of these groups to views different from theirs. An article in Monday's Legal Times provides a glimpse of what is going on behind the scenes of this confirmation hearing. The article reported, ``As a young lawyer in Jones County, Miss., in the 1960s, Charles Pickering Sr. helped put Klansmen in jail. In the early 1990s, when preservationists and black activists clashed over a 'colored only' sign in a county courthouse, Pickering helped craft a compromise that the black community applauded. And as a federal trial judge, Pickering has tried to keep young African-Americans out of the criminal justice system, convening a group of local civic leaders to try to solve the problem.When the Senate Judiciary Committee meets Feb. 7 to consider Pickering's nomination to the U.S. Court of Appeals for the 5th Circuit, his liberal opponents won't be focusing on these aspects of the nominee's record. Liberal activists have combed through the decisions that Pickering has written in 11 years as a U.S. district judge in Hattiesburg, Miss., and have concluded that Pickering's confirmation 'poses a grave danger to our rights and liberties.' But a Legal Times analysis of Pickering's important rulings, as well as interviews with community leaders in his home state, offers an alternate view to the liberals' conclusions that Pickering is racially insensitive and indifferent to constitutional rights.'' The article continued, ``[A] look at the 64-year-old Pickering's record shows that although he has often ruled against civil rights claims, the facts of the cases have often tilted strongly against the litigants claiming discrimination. And although in some voting rights cases he has doubted the correctness of relevant Supreme Court decisions, he has followed the law in making his rulings.'' It is against this backdrop that we must examine the allegations we have heard and evaluate their credibility. I am concerned about the tenor and tone of the attacks that intolerant left-wing special interest groups have launched against Judge Pickering because they indicate to me a broader agenda at work here. I see these attacks as part of an organized campaign by the usual suspects to ``change the ground rules'' for the confirmation of federal judges. This is precisely what Professors Laurence Tribe and Cass Sunstein and activist Marcia Greenberger advocated to 42 Democratic Senators who attended a retreat last year in Pennsylvania as reported by the New York Times. The goal of that retreat was to plot a way to hinder confirmation of President Bush's judicial nominees. The conclusion they reached, according to someone in attendance who was quoted by the Times, was ``for the Senate to change the ground rules.'' Today's hearing is the culmination of nearly a year of effort to change the ground rules by injecting a political litmus test into the confirmation process. We have even had hearings on injecting political ideology into the confirmation process. Even Lloyd Cutler, former President Clinton's White House Counsel, thought this strategy was misguided. Of course, Professors Tribe and Sunstein, and Ms. Greenberger, who were invited to testify at the first of these hearings by my Democratic colleagues, all testified that injecting politics into the confirmation process is the course the Senate should take. To further put this hearing in the appropriate context, I would like to make an additional observation about how very easy it is to make a political statement in Washington, DC, in 2002 before a friendly crowd that wants to hear it and, indeed, demands to hear it, given their political muscle. It is quite another thing to testify against the Imperial Wizard of the Ku Klux Klan in Mississippi in 1967, as Charles Pickering courageously did despite great risk to himself and his family. Although the physical safety of Judge Pickering and his family remained intact, his political career was not so lucky: He was defeated in his next election after testifying against the KKK. Years later, the former Imperial Wizard against whom he testified claimed credit for defeating Judge Pickering's bid for the U.S. Senate in 1976 and for state attorney general in 1979. Any Washington interest groups who question Judge Pickering's commitment to civil rights would do well to remember this. On a separate matter, I would like to note that today's hearing seems to have been orchestrated from the start. President Bush nominated Judge Pickering for the Fifth Circuit on May 25 of last year. For nearly five months, not a single person that I'm aware of raised a question with Judge Pickering about obtaining copies of any of his unpublished opinions. Then, a mere two days before what was to become his first confirmation hearing, Judge Pickering received an oral request from the Committee's Democratic staff to provide a list of all cases in which he had rendered an unpublished opinion. The request covered more than 900 cases, and was impossible to fulfill on such short notice. The request was then revised to include only those unpublished opinions in four categories of cases: Title VII, the Americans with Disabilities Act, ADEA, and the Equal Pay Act. Judge Pickering complied with this request on the following day. At his October 18 hearing, my Democratic colleagues requested that Judge Pickering provide the Committee with his unpublished opinions reversed by the Fifth Circuit--a mere 21 out of more than an estimated four thousand-plus cases that Judge Pickering has decided during his tenure on the federal bench. My friends across the aisle also agreed to limit their request for Judge Pickering's unpublished opinions to specific categories of cases in order to facilitate their production. Accordingly, they asked for those cases pertaining to Voting Rights Act, Fair Housing Act, labor relations, Section 1983, equal protection, habeas corpus, PLRA, and AEDPA cases. Incidentally, Judge Pickering responded in three separate letters the following day. Nevertheless, my Democratic colleagues announced their intention at the October hearing to schedule a second hearing before ever having seen these additional unpublished opinions. Within a week of the hearing, my Democratic colleagues requested more unpublished opinions in the categories of VAWA, Fourth Amendment, and Eleventh Amendment cases. Judge Pickering responded within three days to this request. Apparently dissatisfied with what they found--or did not find--in the opinions that Judge Pickering produced, and contrary to their original representation that they would limit their request to specific categories of cases, my colleagues then asked Judge Pickering for all of his available unpublished opinions, as well as the captions and names of defendants in all criminal cases to come before him. This request came nearly one month after his hearing. Judge Pickering responded by express mail on the same day that he received this request. On December 21, Chairman Leahy inquired further about additional unpublished opinions. He noted that the Committee had received only ``approximately 600 opinions,'' and asked for an accounting of the location of Judge Pickering's remaining unpublished opinions. He also questioned Judge Pickering's effort to obtain copies of his unpublished opinions. Judge Pickering responded, and has since been able to locate additional unpublished opinions which he promptly turned over to the Committee. As recently as January 31, Chairman Leahy insisted that Judge Pickering produce not only his unpublished opinions of which he is aware, but also ``potentially hundreds more of [his] unpublished opinions . . . in paper archives'' of which Judge Pickering is not aware. I cannot recall another nominee who has been subjected to a document production of this scope. If this continues for future nominees, we will have to start filing environmental impact statements along with such requests. Again, I don't take our role to thoroughly examine the qualifications of judicial nominees lightly. But in all seriousness, I have grave concerns about the appearance of a fishing expedition that this request has created. I sincerely hope that this is not the beginning of a pattern of what some may view as harassment for future nominees. I would also like to note that holding a second hearing solely for the purpose of examining the record of a single nominee is an extraordinary measure. During my six-year tenure as Chairman of this Committee during the Clinton Administration, we held second hearings for 9 nominees who, for various reasons, faced substantial opposition. In all but one instance, we considered the nominees facing a second hearing along with a slate of other nominees who were making their debut before the Committee. Likewise, the second hearing for all but one of these nominees took place in a new Congress, which allowed any new Members to evaluate the nominee first-hand. I might note that all but one of the nominees who endured second hearings before this Committee were ultimately confirmed. The nomination of the sole individual who was not confirmed was withdrawn. So, the very fact that we are here today considering only the nomination of Judge Pickering in the same Congress is an extraordinary matter. Senator Feinstein. Thank you very much, Senator Hatch. The Chair would just like to acknowledge I was present at that retreat and I don't remember anything like what you just quoted. So I want the record to reflect that. Senator Hatch. I am just quoting what the press said. Senator Feinstein. The chairman of the Committee, Senator Leahy. Chairman Leahy. Thank you, Madam Chair. Insofar as the confirmation hearing is about you, Judge Pickering, and not about everybody that Senator Hatch has been referring to, we may actually accomplish more by asking you questions than reading newspaper articles. I do that because this is an important hearing on your own record. A Federal judge gets a lifetime appointment. You already hold a lifetime appointment as a Federal judge and you understand that, and you know the impact Federal judges have on people's lives and their rights and all the freedoms that we cherish as Americans, basic rights, fundamental rights, fundamental fairness. Reaffirming or undercutting people's fundamental belief in our system of self-government really matters, and a Federal judge is in the forefront of that. In this circuit, it matters to the people and litigants in Mississippi and Louisiana and Texas, who are part of the Fifth Circuit, but it also matters to people in my home State of Vermont and the Second Circuit, where I am, because it can become the basis for Supreme Court decisions which would then bind all of us. That can be in civil rights or reproductive rights or privacy rights. These matter, and often it is the courts that are left with the responsibility for determining and protecting those rights in accordance with the Constitution. It is in our Federal courts of appeals that decisions are made that affect directly tens of millions of people in the circuit, and they affect what goes before the Supreme Court. Now, I understand your answer to the question asked by Senator Feinstein that you would follow the law, not your personal opinion. I have been here for 27 years hearing judges, and I have voted for, I would say, 99 percent of all the judges appointed by both Republican and Democratic Presidents. They always say that and I am sure they always mean it, but I have a problem with you in saying that, Judge, and let me very honest with you. You say you will follow the law, not your personal opinion. But I look at your record as a district judge and you have been reversed by the Fifth Circuit at least 26 times. Now, either that was because you followed your personal opinion or you didn't follow the law. It has got to be one or the other. I am told that when your court of appeals doesn't publish a decision in connection with a reversal or other decisions, it is because the court of appeals regards its decision as based on well-settled principles of law. Of your 26 reversals, you were reversed at least 15 times through an unpublished opinion. In other words, the Fifth Circuit said that it was such a well- settled issue that you had committed mistakes as a judge in either not knowing the law or not applying the law in the case before you. So let me ask you about a couple of those. One is a recent 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, you adopted the recommendation of a magistrate and you granted the jail official's motion to grant them summary judgment. In other words, you said that the petitioner's claim of a First Amendment right to religious material which they wanted to get through the mail would be denied and you sided with the jailer. Now, the Fifth Circuit Court of Appeals, never once seen as a group of these liberals that Senator Hatch has referred to, said that the inmate's First Amendment rights had been violated. In explaining why you were wrong, the Fifth Circuit relied on and cited a published decision of its own several years before, called Mann v. Smith. In that case, they struck down a jail rule prohibiting detainees from receiving newspapers and magazines, holding it violating the Fifth Amendment. Now, in the Mann case, the prison officials had made much the same argument about fire hazards and clogged plumbing and all that you accepted in the Johnson case. But here was a decision right in your own circuit. Certainly, we would all agree that the district court judge in the Fifth Circuit is bound by the decisions of the Fifth Circuit. It was on all fours. It was decided 4 years before your decision. It was decided and said denying these magazines under these same arguments was a violation of the First Amendment. But you turned your back on your own circuit's decision. Why wouldn't that have been controlling? And, of course, the Fifth Circuit reversed you. Judge Pickering. Senator Leahy, let me first mention you have talked about 26 reversals, and there may be 26. My count was 25, but in any event---- Chairman Leahy. Well, let's say 25 then. Judge Pickering. But 25 or 26 out of 4,000; that is slightly more than one-half of 1 percent of the cases that I have handled. Chairman Leahy. How many go up on appeal? Judge Pickering. Well, of those that went up on appeal, it was about 93 percent, I think, so it was still a good---- The Chairman [presiding.] Well, let's go to this one, this particular case. I picked that only because it is a First Amendment case. Four years before, you had a case from the Fifth Circuit that was on all fours, and yet you went different than your own circuit. Judge Pickering. The procedure in handling prison litigation is that those are matters that we refer to our magistrate judges. And the magistrate judges become somewhat experts in that area, much more so than I do, but ultimately the buck stops with me. Also, on pro se litigants, we have clerks that become specialists in that who operate out of Jackson, who serve all of the judges. Now, in this case, it was referred to the magistrate judge. He analyzed the law and he analyzed it from the basis that the prison authorities could limit rights of prisoners if there was a penal reason why it needed to be done. And he analyzed that the fires and the damage to the plumbing, blocking it up, that was a legitimate penal concern and interest. Chairman Leahy. Weren't those the same arguments made in the Mann case? Judge Pickering. Yes. I was going to say the magistrate judge did not refer to the Mann case. It was not argued to me and that is one where we goofed. If I had been aware of the Mann case, I would not have decided that case that way. But until it came from the Fifth Circuit, I was not aware of the Mann case. Chairman Leahy. But the Mann case was in your circuit and it was 4 years---- Judge Pickering. Yes, that is correct. Chairman Leahy. Let me take a toxic tort case, Abram v. Reichhold Chemicals. You dismissed with prejudice the claims of the eight plaintiffs because you held they had not complied with a case management order. It is pretty significant when a judge dismisses a case with prejudice. It really denies any rights to bring the case again or anything else. But the Fifth Circuit reversed your dismissal. They held you had abused your discretion because you hadn't tried to use lesser sanctions before you threw the plaintiffs out of court permanently, with prejudice, without hearing the case on the merits. Again, the Fifth Circuit said that in their circuit 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. Now, approximately 3 years before reversing you in the toxic tort case--now, I understand you may not have been aware of the Mann case, the one we were discussing before, but about 3 years before reversing you in the toxic tort case, the Fifth Circuit had reversed you on the same legal principle, holding that you had abused your discretion in dismissing another case with prejudice for a discovery violation without any indication that you had used dismissal with prejudice as a remedy of last resort which should only be applied in extreme circumstances. So, in other words, it wasn't a case that you weren't aware. You may have been unaware in the First Amendment case, but in this case where you really go into the rights of the litigants, you were aware of what the court said because they had reversed you for doing the same thing a few years before. How would you explain that? Again, is it a case of your personal feelings or a case of not following the law? Judge Pickering. Senator, let me discuss the Reichhold case first, and it will require some explanation for you to understand the decision that I made. I felt that the Reichhold dismissal met the criteria that the Fifth Circuit has set forth for dismissal with prejudice. The Reichhold cases were assigned to me, I think, some 18 days after I went on the Federal bench. There eventually were 10 cases, and of the 10 cases there were about 4,000 plaintiffs and they ultimately settled for between $16 and $20 million. Now, these cases came along during the final stages of that, after a class had been certified for punitive damages, as I recall. And let me say, Senator, that we are covering a lot of material and I am going back a long time in my memory, and all of my testimony today will be based upon my best recollection of these things. Chairman Leahy. Well, now, with all due respect, Judge, I told the Department of Justice before this hearing--I mean, this is not a surprise thing--that I would raise these cases. This is the same Department of Justice where we asked for material in your file and they gave us part of it a few minutes before this hearing, and even then told us we couldn't use it. So I would assume they are being a lot more fair in working with you than they have been in preparing material for this Committee. I just don't want to leave the impression that this is some kind of a ``gotcha.'' Judge Pickering. No. Chairman Leahy. I made darn sure, out of fairness to you, that we notified the Department of Justice I was going to raise these cases. Judge Pickering. Senator, I got that message about 3 hours before my testimony. Now, again, it was somewhere between ten and eleven o'clock this morning when it was given to me. Now, again, I am familiar with this and I think I can give you---- Chairman Leahy. Go ahead. Judge Pickering. But I am not like a lawyer arguing a brief where you have got the brief up here and you look at everything to be sure. I am still having to draw from my recollection even if I had remembered it, and I don't want to get in a situation where I did once before and remember something and not have said that this is according to my recollection. So in this situation, these plaintiffs had been told repeatedly that they had to get some evidence in to show that the damages that were claimed was caused by Reichhold's pollution. They brought forward absolutely--and it wasn't one time; I had continued the cases and given them about three or four extensions, and my impression was that they could not come up with it. Now, what happened--all of the cases settled except 15, and the 15 that were going up, the plaintiffs' lawyers came in with some evidence on 8 of them. I analyzed the evidence. It was insufficient to establish a cause of action. I dismissed those 7 or 8 on summary judgment with prejudice. The Fifth Circuit affirmed that. Then the Fifth Circuit said the others that I should have sanctioned first. Senator I had given them ample opportunity at the time. The only thing I had not done--if I had sanctioned the attorney for that, the Fifth Circuit would have affirmed it. I don't like to do that. I had given them three or four times. When it came back to me, then they were given an opportunity to again submit the evidence. They still could not come up with evidence. These 7 or 8 cases were still dismissed on summary judgment and they were not appealed. Chairman Leahy. But, Judge, I understand you are saying you don't like doing it that way, but isn't that the way the Fifth Circuit requires you to do it? Judge Pickering. Well, I thought---- Chairman Leahy. I mean, it is not your personal feelings, obviously. Judge Pickering. No. You are right about that, but I thought when I had given three or four that that was contumacious. I had given them three or four times to get the information. They hadn't done it. I thought it met with the criteria. I did not think I had to specifically--I think the Fifth Circuit law--and I think it is broad enough to cover that situation because I had given them time and time again. I said, you have got to get it in. They didn't get it in. I had given a continuance, saying you have got to get it in. And this was about the third or fourth time that had been done before I dismissed it. The Fifth Circuit said you could do the same thing on summary judgment, and I did, and they had no basis, no evidence to show that these cases had a basis in law. So they were dismissed. Chairman Leahy. Judge, out of fairness to the next Senator who will be asking questions, who will be a Republican--we have begun this vote and I think it would be more fair to recess for about 5 minutes so we can all go and vote, and we will come back so I won't have to interrupt during that time. Senator Hatch. Could I just ask just one thing---- Chairman Leahy. No. We will---- Senator Hatch. Just to clarify that last point while we are here---- Chairman Leahy. Well---- Senator Hatch. As I understand it, what you are saying is that in the end you were basically sustained. Judge Pickering. That is correct. Senator Hatch. I mean, so all this rigormarol---- Chairman Leahy. Well, actually, you weren't sustained. With all due regard to my dear friend, Orrin, I hope the President nominates you for something and we can ask you the questions. [Laughter.] Chairman Leahy. And you can certainly answer what you did, but in the meantime maybe out of fairness to Judge Pickering, we should allow him to. We will stand in recess for 10 minutes. [The Committee stood in recess from 3:22 to 3:33 p.m.] Senator Feinstein [presiding.] The hearing will come to order. I would like to just sort of read the list of Senators in their line here according to the early bird rule. The next Senator will be Senator Thurmond, then Senator Kennedy, then Senators Kyl, Feingold, DeWine, Durbin, McConnell, Cantwell, Sessions, Schumer, and Grassley. Because Senator Thurmond is not here, and Senator Kyl indicated to me that he had to go to Intelligence--there is a major Intelligence markup today and I would like to just indicate that is where he is. So we will drop down, then, to the next Republican that happens to be present, who is Senator McConnell. Senator McConnell. Thank you, Senator Feinstein. Judge Pickering, as you no doubt are aware, the group People for the American Way has leveled several criticisms against you. The one criticism I found most interesting was its charge that you have been, quote, ``promoting religion from the bench.'' Because this organization's report said that it had, quote, ``disturbing evidence,'' end quote, of your doing so, I expected to read that you were performing baptisms in your chambers. Instead, the disturbing evidence I found was disturbing to me only in that it is so weak as to indicate a hostility to religion, or at least to any mentioning of it in the public square. I don't have time to go through all of this, quote, ``evidence,'' end quote, so I will highlight a few criticisms that are either radical or disingenuous. The first piece of evidence is an anonymous quote from the Almanac of the Federal Judiciary that said about you, quote, ``He is the judge who concerns me the most. He is a fine person, but he is almost so pious that it interferes with his assignment as a judge,'' end quote. Now, being pious, if that is true, isn't evidence of anything, other than the fact that you exhibit some moral rectitude. And it certainly isn't evidence that you are promoting religion from the bench. Frankly, after various instances of Congressmen, Senators, and even Presidents exhibiting lewd and lascivious behavior, I would welcome a little more moral rectitude or being pious. I note that this organization didn't bother to mention other comments from the Almanac of the Federal Judiciary about your service, such as ``I think he is a good judge, he is a man of high morals, he is a straight arrow, he acts judicial, he is a little stern sometimes, he is a little more formal than some of the other judges are, he has no bias, he is straight down the middle.'' If having high morals, being pious, or being a straight arrow is deemed to promote religion, then we probably have a lot of judges who are promoting religion. So this piece of so- called evidence obviously isn't persuasive. As part of its brief against you, this same organization also notes that in your personal capacity, you once said that the Bible should be recognized as the absolute authority by which all conduct of man is judged. Now, even they agree that you weren't saying that in the courtroom, in your chambers, or in some other judicial or quasi-judicial capacity. You were, in fact, saying this as President of the Mississippi Baptist Convention, as part of your president's address to that organization at your denomination's annual meeting. Frankly, as a Southern Baptist myself, I don't know what else you would say at an annual meeting of the Southern Baptist Convention, particularly when you are the president. Given that you were speaking on a purely theological matter, in your personal, private capacity, I thought the only thing disturbing about this was that people would seek to hold it against you. This organization also argues that you are, quote, ``promoting religion,'' end quote, because you simply suggested to a prisoner that he might want to avail himself of Chuck Colson's prison ministry. Now, you weren't mandating this or threatening this; you were Just mentioning this. Given the proven success of Mr. Colson's prison programs, I don't think that was at all inappropriate. In fact, Democrat Joe Califano, writing in the Washington Monthly in his article ``A New Prescription,'' noted that a study of New York inmates participating in Chuck Colson's Prison Fellowship Program showed that they were less likely to commit infractions while incarcerated and had a much lower rate of recidivism upon release from prison--only 14 percent, compared to 41 percent of those who did not participate in this program. Chuck Colson's Prison Fellowship Program works in conjunction with 1,400 prison chaplains across the country. If merely suggesting this program to an inmate out of concern for the inmate is impermissible, then I guess we should no longer have prison chaplains. I don't know. Maybe that is what this organization prefers. Last, People for the American Way mischaracterizes your use of a one-sentence Bible passage in an opinion. It argues that in this verse you were citing the Bible as recorded law on par with the Supreme Court. This is what People for the American Way said about your reference to that biblical passage. What you wrote was the following: ``One of the oldest recorded codes of law provides: `the innocent and the just you shall not put to death, nor shall you acquit the guilty,' '' Exodus 23:7. That doesn't sound like a radical proposition to me, nor is it placing the Bible as recorded law on par with the Supreme Court. In fact, it might interest everyone to know that you weren't the first Federal judge to use a Bible passage as part of a legal analysis. It is hard to read, but we have a chart over here and let me just tell you what it shows. It is a biblical passage from one of Chief Justice Earl Warren's opinions, a biblical passage from one of Justice Thurgood Marshall's opinions, and a biblical passage from one of Justice William Brennan's opinions--all radical conservative members of the judiciary, I might say. Each of them used a biblical passage in this fashion. I guess they were promoting religion from the bench as well. So, Judge Pickering, I find these accusations against you that are based upon your religious activities in your private life, or de minimis religious comments in your public life such as the one just referred to, to be troubling, not because of anything you did, but because they evidence a hostility toward religion by your accusers. The First Amendment does not command that we eviscerate all mention of religion from public life. We start every day in the Senate chamber with a prayer, and I might add we haven't completely eviscerated religion from our own activities here in the Congress. Given your incredibly low reversal record which we were discussing earlier, less than 1 percent, I have no doubt that you will properly interpret the First Amendment. So I have no questions, but I wanted to adDress those accusations myself because I found them really quite incredulous and completely inappropriate in the context of what we are considering today. Thank you, Senator Feinstein. Senator Feinstein. Thank you, Senator McConnell. Senator Kennedy? Senator Kennedy. Thank you very much. Judge Pickering, I firmly believe that America is never going to be America until we free ourselves from all forms of discrimination, and this has been a continuing battle for this country over a long period of time. I would like, just in the time that I have, to talk with you about employment discrimination and voting rights, and if I have time to just followup on some questions that Senator Feinstein had. One of the important areas where there has been discrimination--and it has existed in the southern parts of the country, and we have our own problems in Massachusetts, as well, and all parts of the country. We recognize this, but one of the important areas that we have been making some progress is in the area of employment, understanding that if people are not permitted to work, if they are going to be discriminated against in terms of employment, they are not going to be a part of the American economy and not be able to be a part of the American dream. So we passed the Title VII legislation a number of years ago and it has been one of the most important--it has been challenged and we came back and reaffirmed it in the Ward's Cove case in recent years, so we are solidly committed to that. The point I want to raise with you is the concern about your singling out the civil rights cases as a place to express your personal views that appear to be somewhat disdainful of the statutory protections against discrimination. In the employment discrimination cases that I have reviewed, you appear rarely to rule for the plaintiff. In fact, I believe I only found two or three discrimination cases in which you ruled for the plaintiff, and one of those involved a male's claim of gender discrimination, Green v. University of Mississippi. What troubles me beyond the rulings are the statements you made about the perceived problems with Title VII of the Civil Rights Act. In one case, after deciding the case for the plaintiff, you went on to opine, ``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 Johnson v. Southern Mississippi Home Health, 1996. In another case where you again could have limited yourself to the facts and law, you went on to comment that, ``The courts are not super personnel managers charged with second-guessing every employment decision made regarding minorities.'' You stated that the case was frivolous and thus helped to discourage employers from hiring protected minorities, in Seeley v. City of Hattiesburg. In another employment discrimination case, you stated that the unfortunate effect of Title VII was to create the expectation that discrimination has occurred in every instance, thus, quote, ``creating a tension in the workplace.'' Now, while I understand that not every employment discrimination case has merit, I am concerned that in discrimination cases you go well beyond what is required to explain your holding and proceed to express profound skepticism toward these claims. I don't see that you consistently express this type of disdain for other categories of claims that come before you. Title VII of the Civil Rights Act has, of course, been recognized by the Congress as one of the most important statutes. More than 10 years ago, we amended it to strengthen its provisions in terms of protecting employees. So I would be interested if you could explain why you express the particular skepticism for cases involving this kind of discrimination. Judge Pickering. Senator, first, I would like to address the first issue that you raised which has to do with the number of reversals that I have granted, if I may, and then I will answer the other question. Senator Kennedy. All right. Judge Pickering. In that vein, I would say first of all that the mechanism that the Congress has put in place is working well. 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. If I am going to grant summary judgment, I have to write an opinion and state why I am granting summary judgment. If I am going to deny summary judgment, I don't have to do that. You can try the case or settle the case, or whatever. Now, I had my staff go back and look, and of employment discrimination cases, my understanding is that nationwide that most employment cases that get to court are dismissed, again, for the same reason I think I explained just a few moments ago, because of the effective work of the EEOC. But I had 170 closed cases. I had 68 settled, 51 summary judgment granted, 11 voluntarily dismissed, and 3 tried to verdict. So not nearly half of the cases that actually came to court were dismissed. Most of them either settled or they were voluntarily dismissed or they went to trial. I have a letter from a female who had an employment case before me. Her name was Mary Baltar and she stated that when she found out that I was going to be the judge that was handling her case that she did not request a jury. She was satisfied to come before me as the judge and jury in the situation, and she assured in there that I had treated her fairly and made sure of that. So I would call your attention to that evidence that should be in the record. Jim Wade, who is the most prominent attorney in Mississippi handling employment discrimination cases, without solicitation, wrote a letter to the editor saying Judge Pickering is not unfair in the employment discrimination cases. In fact, he wrote an excellent letter endorsing that. Now, as for the comments, Senator, it is my feeling that whenever frivolous lawsuits are brought that that hinders the good lawsuits. And the lawsuits where I made those comments in were where the case, I thought, clearly indicated there was no basis for this action. It never should have been brought, and I think that is detrimental to African-Americans who have good claims. And I think it does create tension in the workplace whenever frivolous lawsuits are filed. So that was the reason for the expression of these, no hostility toward enforcing the law. I agree with you that they should be enforced, and I will. Senator Kennedy. Well, I understand that the EEOC does important work, but you know as well as I do it is vastly overburdened, and in many instances it takes such a profound period of time that people go on into the courts. These are legitimate cases which are brought. I will go back to see whether these were cases that were brought before the EEOC and ruled on in the EEOC and then were brought to the courts. But the fact is, with the length of time, failure to complete all of its--all of us know that the delay in that form of consideration is significant. I just noted that you were willing to make comments about this particular aspect of employment discrimination which you hadn't made with regard to other forms. To move on to voting rights, I know that you answered some questions on the issue of voting rights, and you also talked about the changes that have taken place in Mississippi. You pointed out in response to a question that in the Mississippi Senate, in the 1970's, you supported the larger multi-member districts that served to submerge the black vote. You also voted for the open primary bills that sought to dilute the black vote by abolishing party primaries, and also the ``plurality win'' feature of the State's general election. The open primary legislation was prevented from taking effect twice because the Justice Department objected because it was discriminatory against African-Americans. At that time, the Democrats were working to exclude the African-Americans, as well as the Republicans. I mean, that is the history. I remember very well that time. I remember the convention in 1964 and the group that came on in to represent the Democratic Party and their designation. I have some memory of this. It was done by Democrats, as well as Republicans. In 1975, you voted for a resolution that would repeal Section 5 of the Voting Rights Act. So this is the series. There is a confluence of different actions that many believe were carefully designed in order to exclude the black vote here. And the most important, I think, was Section 5 of the Voting Rights Act, which, of course, is the important provision that requires pre-clearance for voting changes. We had seen two instances where the Justice Department actually turned down requests by the State previously, but you voted against that, and that is in the mid-1970's. And I am just wondering, as we are coming into these issues on voting-- and we have gone through this last election with the concern people have about whether their vote counts. Another issue: on one person, one vote, you considered a case involving one person, one vote, in association with a county's supervisor's election where the districts were drawn pursuant to a redistricting plan that had a 25-percent deviation--Fairley v. Forrest County. Your opinion included a lengthy discussion in which you characterized this deviation as a de minimis variation in terms of voter influence, and this even though the Supreme Court has characterized districts with lower population variations as not de minimis, but as posing constitutional problems. You suggested in this case that even when an apportionment plan is unconstitutional, ordering new elections would cause courts to be more obtrusive into matters that under our Constitution should be discharged by others--elected officials and legislative bodies. So you continue to express skepticism of the one person, one vote principle, stating ``It is wondered if we are not giving the people more government than they want, more than is required in defining one man, one vote, too precisely. Nevertheless, this court is bound to follow the precedents established by prior controlling judicial decisions.'' Now, you said you believed that a 25-percent variation was de minimis because the actual influence of each voter on the outcome of an election is almost infinitesimal. In Reynolds v. Sims, the Supreme Court quoted an earlier case that said, ``No right is more precious in a free country than that of having a voice in the election of those who make the laws under which as good citizens we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily bridges this right.'' Given the values that are at stake here, why would you not seek to give the maximum protection in protecting voters' right in that case? Judge Pickering. Senator, that was the Fairley case that you are talking about. To the best of my knowledge, I have handled four voting rights cases. None of them have been appealed. Now, it is true in Fairley that I did discuss the history and the background of the Voting Rights Act. And, Senator, I have had to review so many cases, but I would like to say my recollection of that case is that the deviation was 25 percent and I said that is unconstitutional, and the parties agreed to that. The issue in that case was not whether the districts were properly--it was whether there would be a special election, and I think most of the circuits have agreed that we did not--that that was not required. I did not require that. Now, the named plaintiff in that case, Mr. Fairley, has written a letter in my support saying that he felt that after the decision was rendered that they didn't appeal it and they didn't feel like it was unfair. His brother, who was president of the NAACP, who was instrumental in bringing it, has likewise endorsed by candidacy. Now, my impression is that a 16-percent deviation is unconstitutional. That is what I understand the Supreme Court to be. Now, the obtrusiveness, a number of judges have written about. When we are forced as judges to go in and draw districts, we are doing that which legislatures should do. And to that point we are being obtrusive in that we--to provide constitutional protection, we are having to do what the judges shouldn't have done, and that is obtrusive. But the 25-percent I did not find to be de minimis. I did raise some question about the fact that, for instance, my precinct was put in with another county and I would personally prefer to vote in my own county even if there was some deviation. But that is not the law and I will follow the law. Senator Kennedy. My time is up. Senator Feinstein. Thank you very much, Senator Kennedy. Senator Sessions, you are next on the early bird. Senator Sessions. Thank you. So you are saying, Judge Pickering, that the plaintiff in that case who was seeking a civil rights remedy has written a letter in support of your nomination saying that they were treated fairly in that case? Judge Pickering. Yes, that is correct. Senator Sessions. Well, I think that is more important than some of these groups that are trying to make this nomination a show here. The person who filed the lawsuit, who tried the lawsuit, who sought relief, was satisfied with the relief and supports the nominee. I think that is important. On this Dahmer case--is that it, the Klan case? Judge Pickering. Dahmer. Senator Sessions. Dahmer, yes. Judge Pickering. Mr. Vernon Dahmer. Senator Sessions. Dahmer. I wanted to get it quite correct. This was in the 1960's. You were asked to testify as a character witness against him, not a fact witness, when you have no choice about that, basically. But you were asked to give your opinion of his character and you agreed to go and testify against him and say he was a bad character. Is that correct? Judge Pickering. I did. I think there were two or three people in Jones County that they contacted. I think one of them was a banker and one of them was me, and I agreed to testify and they subpoenaed me to do that. Senator Sessions. Did the others testify? Judge Pickering. Well, I think there was only one other one. There were many law enforcement officers they didn't ask. Senator Sessions. Well, I was going to ask that. I thought it was interesting that you were asked and thought to be a person who might be willing to testify against a Klan leader. Did that indicate that your reputation in the community and your feelings about this Klansman were known and that you disapproved of them? Did they probably know that when they asked you to testify? Judge Pickering. Well, it was known because I had issued statements condemning the Klan activity. And in addition to that, I had attended the FBI briefings and meetings where they were trying to solve civil rights violations not only in Jones County, but in neighboring counties and nearby counties. I think there were probably some 90 FBI agents that were assigned to work in that area, and frankly if they had not been assigned there, we would not have solved those problems. Senator Sessions. And you had five individuals that I got to talk with earlier who are here on your behalf, three African-Americans, and I asked them this question and they all answered the same way. I said, with regard to Judge Pickering, during the 1960's when so much tension and turmoil and violence and hatred was afoot, was he a force for good in the community? Was he a force for progress and change, or was he a force against change and progress? And they all said, without hesitation, you were on the right side; you were a force for progress and change. And I think that is more important, those people who know you, grew up in the community with you, than some of these people that are putting out words and messages on the television and in newspapers who really don't know the facts about it. It was curious to me that it was suggested that somehow you performing badly to have 26 reversals out of 4,000 cases. I suspect, in your opinion, the court of appeals was wrong on some of those reversals. They could have been, couldn't they? Judge Pickering. Well, they have the last say. Whether I agree with them or not, I have to abide by what they say. Senator Sessions. Well said, Your Honor. That is true, spoken like a good district judge. You indicated that of the cases that went up, you had a 93- percent affirmance rate, you think? Judge Pickering. In that range, yes. Senator Sessions. And all 4,000 don't go up? Judge Pickering. No, no, no. Senator Sessions. But if somebody feels wronged and they think the district judge clearly was in error, they will take that case up, will they not? Judge Pickering. They will. Senator Sessions. And if they don't feel like they are wronged, they generally won't take the case up. So the first decision on whether a party has been wronged in a case they have to make themselves before they decide to appeal to the higher court. Judge Pickering. If they don't take action to appeal it, the end of it is in the district court. Senator Sessions. Well, I would just say that just because your case wasn't appealed--I mean, that is an indication of its validity in itself, would it not be? Judge Pickering. I would think so, in most instances, not in every one. Senator Sessions. And on the prison case, there is some very complex law in prison litigation. This Congress has improved, I think, the law in some regards, but magistrate judges around the country do handle those cases at the first level. Judge Pickering. That is correct. Senator Sessions. And you indicated they really develop a high degree of expertise in these cases, do they not? Judge Pickering. They do. Senator Sessions. And when a magistrate judge has reviewed a case and cites the authoritative law and it comes across your desk, you have the final say. It is your final decision whether to affirm it or not affirm it. Judge Pickering. That is correct. Senator Sessions. But you don't---- Judge Pickering. Senator, I might add in that respect that I looked back to see if my prison litigation reversal rate was any worse than the rest of my reversal rate. It is not. In fact, it is better. The percentage of my cases that were prison litigation was about a third, about 33 percent, and the percentage of my reversals that were prison cases was about 25 percent. Senator Sessions. The magistrate judge does the research, does the facts and sets out the law, and you review it and see if anything strikes you as improper. But you do tend to give deference to the opinion of the magistrate judge, do you not? Judge Pickering. I consider that they are sort of the experts in the area and they have more knowledge. But, again, the buck stops with me and I have the responsibility. Now, sometimes what will happen is the magistrate judge will make a recommendation and after the magistrate judge has made a recommendation, the pro se plaintiff will come before me and he will argue something different than he argued before the magistrate judge. And if that happens, I generally send it back to the magistrate judge and ask him to look at the issue again. Senator Sessions. With regard to the suggestion that you abused your discretion in one of the reversals by the court out of those just 26 cases, of course, I think people ought to know that that is a standard basis for reversal. Trial judges are given certain discretion and they exercise it the best the Lord gives them the ability, and when a judge upstairs decides not, the holding is you abused your discretion. It is not like you committed a crime, is it? Judge Pickering. That is a term of art. Senator Sessions. Yes. Judge Pickering. And unless they make that finding, they can't reverse me. Senator Sessions. I don't think we ought to make too much out of the fact that a court, in a few cases out of 4,000, said you abused your discretion. I know Senator Kennedy is concerned about employment discrimination cases. I haven't seen anything in your comments that suggests to me a lack of willingness to enforce those fairly, but you just indicated, I believe, that Attorney Jim Wade, who does more of those probably than anybody in the State, a plaintiff's lawyer--is that right? Judge Pickering. He is a plaintiff's lawyer. Senator Sessions. He wrote a letter to the newspaper in your behalf? Judge Pickering. He did. Senator Sessions. Defending you on those cases? Judge Pickering. He did. He said that the charge that I was not fair in employment cases was not a charge that stuck. He said he felt that I was--was very complimentary of my handling of employment cases. Senator Sessions. With regard to the fact that you had a number of unpublished opinions, I find that a most curious complaint. In 1964, the Judicial Conference of the United States, which includes the Chief Justice and the chief judge of each circuit court of appeals and a district judge from each circuit, passed the following resolution: ``Resolved that the judges of the courts of appeals and district courts authorize the publication of only those opinions which are of general precedential value, and that opinions authorized to be published be succinct.'' Is that your understanding of the court's view about publishing too many opinions? Judge Pickering. The Judicial Conference of the United States and the Judicial Conference of the Fifth Circuit both have discouraged district courts publishing opinions. And the circuit court of appeals' Federal Rules of Appellate Procedure--or the Federal Judicial Center Judicial Writing Manual says this: ``Because decisions of district judges are merely persuasive authority--i.e., they are not binding precedent even in their own districts--publication should be the exception.'' The truth of the matter is that the appellate courts only publish about 20 percent of their opinions. And I published about 8 percent of mine, and it has been mentioned 15 of the reversals were not published. So publication should be the exception rather than the norm. Senator Sessions. Well, I think that is exactly correct. I remember when I graduated from law school, we checked on this. The F. Supp., which carries the district court opinions, issued 15 volumes that year. In the year 2000, it was 52 volumes. So you have this plethora of opinions piling out there that provide little guidance, and I think judges would do well to restrain themselves and not publish their great works of literature. And I don't think you should be criticized for not publishing too many opinions. Judge Pickering. Well, I must confess that that was one that was an indication or implication that questioned did I have something to hide. I was shocked when that issue was raised because I thought I was doing what I was supposed to be doing, and I really thought that it was an indication that I didn't have to see my name in lights or in print every time that I rendered a decision. I thought I was doing the right thing. Senator Sessions. You were doing the right thing, but what I have learned as you watch this process, Judge Pickering, is that the experts who are trying to make your record look bad, they know that if they say you had 26 reversals and you had all these unpublished opinions that that will, for the uninitiated, sound bad and put a certain cloud there. I think that is not fair and it is not legitimate, and I am glad the chairman has given you an opportunity today to have your say and explain some of it. Judge Pickering. Senator, I must confess when I---- Senator Feinstein. Thank you, Senator Sessions. Senator Feingold? Senator Feingold. I thank the Chair. Judge Pickering, it has been good to hear your statement in which you covered a number of issues, and also your answers to questions about issues that have largely been the ones that have already publicly been associated with the question of your confirmation. I would like to get into a couple of other matters. As Senator Hatch mentioned, the Committee has received really quite a large number of letters in favor of your nomination from Mississippi. It is an impressive outpouring of support from people who know you, and I congratulate you on that, but I would like to ask you about some of the letters. We count at least 18 letters from members of the bar in Mississippi who have appeared before you during your time as a U.S. district judge. All of these letters are dated either October 25 or October 26, and they were all faxed to Washington from your chambers in Mississippi. Can you tell me how you came to obtain these letters? Judge Pickering. Yes. Senator, I knew of no opposition to my nomination that had been pending since May, sometime in May of last year, until 2 days before I came for my hearing on October 16th. Well, when I came and the opposition came and they wanted to produce the unpublished opinions and I started producing those, it was obvious that there was some opposition somewhere. So I contacted individuals and told them if they felt inclined to write letters, or else I had someone else on my behalf contact them at that time. And if you will recall, Senator, that was at the time of the anthrax scare and mail wasn't going through. Senator Feingold. I do recall. Judge Pickering. So if we were going to get it to you, the only way we could get it to you was fax it. Senator Feingold. This certainly isn't a criticism of faxing. So you have said that you have asked these lawyers to write letters in support of your nomination? Judge Pickering. Yes. I didn't tell them what to say. Senator Feingold. Did you ask present or former litigants, parties in cases that you handled, to write such letters? Judge Pickering. Some. Senator Feingold. Did you request that they send the letters to you, to be forwarded to the Committee? Judge Pickering. That was the procedure that was suggested because that was the only way that we knew to get them here and to get them through the anthrax. Senator Feingold. Did you review the letters before you forwarded them? Judge Pickering. Most of them. Senator Feingold. How many attorneys did you ask to submit letters? Judge Pickering. A lot less than you have, because there were--and some of this--I would ask one attorney; they would ask another attorney. Sometimes, other people would call on my behalf, but I would say 20 to 25 percent of them probably came--Senator, I started--I had three major surgeries last year from the time the President nominated me until I came. And one of the things that was real touching to me was one morning I was being discharged from the hospital after my second surgery. There was an African-American lady who came in the room. My baby daughter was there. And she was a real exuberant person and she had been before me and I didn't remember at the time. Her name is Nora Jones and you have a letter from her that was filed just recently. It was touching to me, with my family there and at a time when I was sort of down. She said, I am president of the Charles Pickering fan club. She had been before a judge in New Orleans that was African-American. She had lost. She came before my court. I felt like she was not being treated fairly. I let that be known. She was able to get her life back together and settle it. Yes, I have some letters from folks like that who have been before me. Senator Feingold. I certainly appreciate that comment. I just want to know if you received any letters that you did not forward to the Committee that you reviewed. Judge Pickering. The letters, I think, have been forwarded that I received. Senator Feingold. You forwarded all the letters that you received? Judge Pickering. Yes. Senator Feingold. Are you aware of attorneys who you asked to---- Judge Pickering. Let me--I forwarded them to the Justice Department. Senator Feingold. There were no letters that you reviewed that you chose not to forward? Judge Pickering. No. I forwarded all letters that I received. Senator Feingold. Are you aware of attorneys who you asked for recommendations but who declined to provide them? Judge Pickering. I am not aware of any. I am not saying there are not--well, there were a couple that said they were going to write letters that later came back and said that pressure had been put on them and that they would rather not. Senator Feingold. Well, I want to be clear. I am not questioning at all the sincerity of these letters. I would just like to ask you, do you see how this situation can perhaps create an appearance of coercion, given the fact that these individuals appear before a district judge, your being directly involved in reviewing the letters? Judge Pickering. Senator, a lot of these lawyers have never been before me. They know my reputation. For instance---- Senator Feingold. I assume some have, though. Judge Pickering. Some, oh, yes, absolutely. Senator Feingold. And certainly some of the litigants. Judge Pickering. Absolutely. Senator Feingold. Let me ask you about a different matter. Let me first of all say that I was moved by the account by Senator McConnell and yourself of the testimony you gave in the 1960's with regard to the KKK. And I think that is an important story for the Committee to hear, but let me ask you about another matter from about that time. As I understand it, about 2 weeks after the Democratic Convention of 1964, you resigned from the Democratic Party and became a Republican. You had every right to do that, of course, but I would like to ask you about the circumstances of that party switch and some of the things that you actually said at the time. As I am sure you recall, the summer of 1964 was known as the Mississippi Freedom summer. After decades of discrimination, African-Americans across the State attempted to register to vote, and in particular to participate in the precinct, county and State conventions of the Democratic Party to help select delegates to the Democratic National Convention. There was violence in Mississippi that summer. For example, that summer was when civil rights workers Goodman, Chaney and Schwerner were murdered. African-Americans were discriminated against and excluded from participation in the regular Mississippi State Democratic Party processes. This included such tactics as canceling precinct meetings, denying African- Americans entry to meeting halls, and preventing them from voting in party meetings. The regular State party delegation to the convention was, in fact, all white. During that summer, black Mississippians formed the Mississippi Freedom Democratic Party and elected an alternative slate of delegates to the convention. The two slates each claimed the State seats at the convention, and testimony was taken by the convention's Credentials Committee, including, of course, the riveting testimony from Fannie Lou Hamer, who described some of the discrimination that had occurred. A compromise was suggested by President Johnson under which the regulars would keep their seats, the Mississippi Freedom Democratic Party would get two at-large seats, and the State party would pledge to support the national ticket and to eliminate discrimination in future delegate selection. Neither State party agreed and the regular State party delegates walked out of the convention. Now, despite the clear discrimination against African- Americans in the party process, the regular party delegates and their supporters felt that they had been the victims of humiliation and mistreatment. For example, your law partner at the time, Lieutenant Governor Carroll Gartin, who was a delegate to the convention, accused President Johnson of, quote, ``master-minding the insults,'' unquote, against the State at the convention and urged voters to vote for Barry Goldwater. About 2 weeks later, you announced your shift from the Democratic to the Republican Party. According to the local newspaper you stated that, and I am quoting here, ``The people of our State were heaped with humiliation and embarrassment at the Democratic Convention, and this has convinced me beyond any doubt that Mississippians do not now and will not in the future have any useful place in the National Democratic Party,'' unquote. The Republican Party, you claimed, was, quote, ``our only hope of rescuing our national government from an ever- increasing tendency toward socialism,'' unquote. Can you explain what you meant by the statement that, quote, ``The people of our State were heaped with humiliation and embarrassment at the Democratic Convention?'' Judge Pickering. Senator, a couple or three comments. First, as I have indicated a few moments ago, I certainly recognize the difference between political decisions and political statements and judicial decisions. We are also looking back at a time from the perspective of 2000, looking back to a situation that was 1964. When I called Governor Winter today, whom I mentioned to you as one of the most respected figures on race relations in the State, he was talking about the fact that Carroll Gartin was a progressive leader of that time. I don't know of any of the State leaders at that time who would not have made similar statements. Senator Eastland, Senator Stennis, just did not go to the Democratic National Conventions. The issues that were presented were issues that would not have allowed them to be elected in Mississippi. So I would say that that statement had to do with the perspective of those times and that it was a political decision. Senator Feingold. Were you aware at the time of these events of the efforts to prevent African-Americans from participating in Democratic Party politics? Judge Pickering. Senator, I have always felt even before then that African-Americans should have been allowed to vote, but they were not voting. They had not voted and many counties did not allow them to vote. I had never taken any part in prohibiting them from voting. Senator Feingold. But were you aware of the tactics that I have mentioned earlier in my statement that were being used against African-Americans? Judge Pickering. The Voting Rights Act, I believe, was passed in 1966, which would have been---- Senator Kennedy. 1965. Judge Pickering. 1965. The Civil Rights Act, I think, was passed in 1964. Senator Kennedy. 1964, 1965, 1967. Judge Pickering. Right, right. Things were changing drastically at that time. Senator Feingold. But the things I mentioned happened no later than 1964. I am just asking if you were aware of these tactics that were being used against African-Americans. Judge Pickering. I was aware that they were not voting, that they had not voted, and I was aware some counties were more progressive than other counties were in allowing African- Americans to vote. Senator Feingold. Let me ask you this: Do you recognize that the activities of the Mississippi Democratic Party at the time were discriminatory and unconstitutional, and do you have any regrets about the statements you made concerning those events? Judge Pickering. Well, I certainly would not make those statements today. Senator Feingold. Do you regret them? Judge Pickering. Yes, sir. Senator Feingold. Thank you, Madam Chairman. Senator Feinstein. Senator Specter, you are next up. Senator Specter. Thank you, Madam Chairman. Judge Pickering, you have said that you will follow the law on Roe v. Wade even though it may be against your own personal views and predilections. Can you cite other situations where you have followed the law where you had personal views which were contrary to the established law, but yet you followed the law? Judge Pickering. Followed the law, yes, Senator. I mentioned one of those, which was in the ERISA area, in my opening statement that I very much--I disagreed with what the Federal courts have done to ERISA, to the degree that I wrote 35 pages of explaining why I thought they had interpreted it wrongly, but I followed the law. In another case that I specifically recall that I did that, there was an employee--it was a labor relations case, the Federal Arbitration Act, and the employee definitely had not carried out a work order and that is why she had been terminated. She didn't follow to carry out a work order. Well, the arbitrator had found in her favor, and I affirmed that even though I thought the factual basis was not in the record. But I reasoned that he could have concluded that had she had an opportunity--if the matter had not degenerated into an argument that she would have carried out. So I felt like I have stretched to follow the strong law that the arbitrator's decision bargained for, not a judge's, and I upheld that. And another issue in that particular case was they made a public policy argument that she had attacked an administrative judge and that she had emotional problems. That was the issue, but they had worked her for 8 years. So even though they urged me on a public policy basis to reverse the arbitrator's decision, I said they worked her for 8 years, they are estopped from coming here now and arguing before me that she was a danger to them, because if she was they had worked her, so they had waived that. So those are two instances where I disagreed with the law that I followed the law. I have also--as I testified earlier, there have been a number of cases where I have protected--for instance, I haven't had an abortion case, but I have protected sexual privacy rights in other cases and I went over those a few moments ago, one of them involving an apparent lesbian relationship. Another one involved a homosexual. Senator Specter. And those were holdings or conclusions in accordance with established law which were counter to your own personal views? Judge Pickering. I didn't say that. I said that I--you had asked about the abortion issue. Senator Specter. I know you didn't say that. I am asking you. Judge Pickering. No, no. My personal--the issue, Senator, is, as I see it, not my personal view on any of those issues, but it is whether or not I followed the law, and I did in those cases. Senator Specter. Judge Pickering, there is concern that although you say you will follow the law that at the margins where you have some area of discretion that your own personal predilections will come into play. What would your view be on that? What assurances could you give that on the cases at the margins that you will follow the intent behind the decisions? Judge Pickering. Senator, I think in a situation where there was not a clear situation that I would look at the controlling precedents and I would look at the--if you don't have a clear place, then I think you go back to the statute and if the statute is very clear, of course, you follow that. If not, you look at the legislative history and you try to--I have--one of the criticisms that I had in the ERISA case about the Federal court interpretations is that Congress in that case made a very clear statement of what their intent was in passing that bill. And yet I felt the Federal courts ignored congressional intent in that. I think congressional intent is important. Senator Specter. Judge Pickering, you have cited your testimony against the leader of the Ku Klux Klan and your having attended meetings where the FBI was investigating civil rights violations. Can you cite other instances in your career, either on the bench or off the bench, where you have been an activist in support of civil rights? Judge Pickering. Well, my children in the early 1970's when the public schools were integrated--we were part of the integrating process. My son would bring home when he was playing football two friends, one African-Americans and one white, and my wife would feed them a steak. I had not contacted him for a letter of support and 2 days ago he called me and said--wanted to know if he could do anything. And he wrote a very moving letter in which he said, you all made me feel like a member of your family. So we integrated the schools, integrated the dinner table. When I was chairman of the Republican Party, I solicited and sought invitations to speak to the State NAACP. I hired the first African-American field man, who is here on my behalf, and he likewise--I did not ask for his letter of support. He came through Jackson and he saw that I was being opposed and he called me and said, I want to help. And he, unsolicited, sent a letter to Senator Leahy and he is here today. He reminded me of things that went on during those days that I had forgotten in his letter. As president of Mississippi Baptists, for the first time in 1983 when I was there we had an African-American pastor address our convention. That is the first time that had been done. In 1988 and 1989, I chaired a bi-racial, bipartisan group trying to promote better race relations in my home county of Jones. In the 1990's, my son-in-law was a faculty adviser for Sigma Chi fraternity. Chip and I both were Sigma Chi's. There was an African-American who was trying to gain admittance to Sigma Chi. He was being black-balled. We discussed it. Chip flew down from Washington, addressed the chapter. We integrated the Sigma Chi chapter at Ole Miss. In 1999, I wrote a lengthy article that was published in the Clarion Ledger, ``Racial Harmony Requires Commitment.'' And within the last couple of years, at the University of Mississippi, the Institute for Racial Reconciliation was created. I had written a private letter to the chancellor---- Senator Specter. Mr. Pickering, I am reluctant to interrupt you, but I would appreciate it if you would supplement your answer because there are a couple of other questions I want to go over with you. Judge Pickering. That was the last one. Senator Specter. OK, we are on the same wavelength. In reading your opinions, Judge Pickering, I have noted a curious ambivalence. The citation has been made to the Fairley case on the obtrusive language, but the full context says, quote, ``When courts perform their responsibility and determine that constitutional criteria are not satisfied, and that an apportionment plan is unconstitutional and order new elections, the courts are being obtrusive into matters that under our Constitution should be discharged by others--elected officials and legislative bodies.'' Now, in the dependent clause you say courts are discharging their responsibility on unconstitutional apportionment plans and ordering new elections, and then you say that they are being obtrusive into matters that under our Constitution should be discharged by others. So, on one hand, you say they are doing their job under the Constitution, and then you say under the Constitution the matter ought to be decided by others. Because the red light is about to go on, let me cite another instance where--I don't think it is schizophrenia, but it is a little ambivalence, at least. In Citizens Right to Vote v. Morgan, which was a bonding case whether voting rights were violated, you say, quote, ``This case is simply another of those which demonstrates that many citizens have come to view the Federal courts as potential solutions for whatever problem comes along. I fear Federal courts have fostered such a notion over the years. Government by court decree is a poor substitute for government by the people. This case is nothing more than a political struggle between those who want an election on a proposed bond issue and those who do not want an election.'' Now, it is curious to me that you want to be a Federal judge, Judge Pickering. Of course, you are a Federal judge, but that you want to be an appellate judge because here you are really saying the courts have no business in this, and here you are in the business of having no business in deciding all these cases. And in the earlier citation, it is hard to follow your reasoning on saying the courts perform their responsibility when something is unconstitutional, but the courts are obtrusive in the matters that under our Constitution should be discharged by others. What is going on here, Judge Pickering? Judge Pickering. Senator, perhaps I could have been clearer in that area, but that is--Federal courts--the jurisdiction is very plain. We are courts of limited jurisdiction. We are not to get into any case that we don't have--that is not granted to us. And over and over, the Federal courts have held that we are courts of limited jurisdiction. Now, by obtrusive what I intended to convey--and perhaps I didn't do it as well as I could--is that that is the legislature's job. And when they fail to carry out theirs, then we must; yes, we must move in to protect constitutional--and from the standpoint that it is our responsibility, yes, but it is because we are having to get into something that should have been done by the legislature. That was my intent, Senator, in that area. And in the---- Senator Specter. There seems to be quite a strain in your opinions, and there are a lot of them on the record, as well as those that are unpublished, of ambivalence of upholding what you think is the constitutional law, but then sort of decrying the presence of the court to have to decide matters that you would really prefer should be decided by the legislature or somebody else. Judge Pickering. Senator, in the Citizens Right to Vote case, that was a group of wealthy land owners trying to avoid a bond issue so that--trying to avoid raising their taxes. And they were using the Voting Rights Act to do that and I thought that was an improper use of the Voting Rights Act. Senator Specter. Thank you very much, Judge Pickering. Thank you. Senator Feinstein. Thanks, Senator Specter. Senator Durbin, you are next. Senator Durbin. Thank you very much, Madam Chair. Judge Pickering, thank you for returning. This hearing has become a painful recollection of America's past and the civil rights movement. Because you are from Mississippi, in your early days as a professional, as an attorney, as a legislator, elected official, you lived through some historic moments. And I hope you understand the nature of our questions is to explore what happened during that period of time, but more importantly how you feel today. The appointment you are seeking is a lifetime appointment and it is a very valued appointment. I recall the experience that former President Clinton had in seeking to fill vacancies in this particular circuit court of appeals. As has been said before in the hearing, this particular circuit has the highest minority population of any in the country. President Clinton proposed four nominees to fill circuit vacancies during the period when the Republicans controlled the Judiciary Committee. One was confirmed, James Dennis, by a voice vote in September 1995. Three others were not even given the courtesy of a hearing, the courtesy that has been given to you. The troubling thing is that all three were minorities. Alston Johnson, an African-American; Jorge Rangel, a Latino; and Enrique Moreno, another Latino, were not given the courtesy of a hearing before this Judiciary Committee when President Clinton sought to fill these vacancies. So I hope that you understand the historic context of this Committee as this hearing is underway. We have heard from Senator Hatch that there is an effort to change the ground rules. Well, I certainly hope we do change the ground rules. I certainly hope that every nominee of any President is given a respectful opportunity to present their credentials, and I hope you believe that that has been given to you. Let me address the Sovereignty Commission for a moment because I have followed your testimony and there is one part of it that I just don't understand. You have said today when asked why any contact was made with the Sovereignty Commission over the Gulf Coast Pulpwood Association in Laurel, Mississippi, and the Masonite Corporation strike that you were concerned about violence by the Ku Klux Klan in that union and in that strike. The thing that troubles me as an outsider who has tried to study a little bit on this is it would seem that the Sovereignty Commission of the State of Mississippi would be the very last place that you would go if you are worried about violence and the Ku Klux Klan. By its very charter, by the fact of its creation with Brown v. Board of Education, the Sovereignty Commission was certainly not created to police the Ku Klux Klan or violence by those with racial beliefs. From what I have read, it was created to basically assert State sovereignty over Federal rights, particularly after Brown v. Board of Education. Why would you think that the Mississippi Sovereignty Commission was the right agency to approach if you were fearful of Ku Klux Klan violence in your hometown? Judge Pickering. Well, they were making an effort, in my impression, to change from what they had been doing in the law enforcement. And the gentleman who was head of it--or not the gentleman who was head of it--the man that I was introduced to was introduced as a former FBI agent. Senator Durbin. So you believe that rather--you were a State Senator at the time, is that correct? Judge Pickering. Well, I think he would have--I felt at the time, Senator--and, again, we are looking at things through the perspective of 2001 as to then, but at the time I thought if there was some indication of violence that was coming up, yes, that he would have information on that. Senator Durbin. So as a State Senator, it was your belief that rather than go to the Governor or the attorney general or law enforcement if there was a fear of violence from the Ku Klux Klan, the appropriate place to turn was the Mississippi Sovereignty Commission? Judge Pickering. Well, the Governor was on the Sovereignty Commission at that time. Senator Durbin. So you believed this was the right place to go to enforce those laws? Judge Pickering. Senator, if I were making that decision today, I would not make the same decision that I made then. At the time, I thought that was the best place to--and, again, Senator, I have very little recollection of this. My impression is that it was a casual conversation; that, you know, I think he probably overstated somewhat in trying to keep their agency alive that here there were three legislators that were vitally interested in what he was doing. My recollection of it, and it is very vague because I did not remember it when I was here before, is that he said, we have got some information in that area. And there was a casual thing: well, if you find out anything, let me know, or something to that effect. Senator Durbin. Well, I know that you have probably read the letter which has given rise to these questions which mentions your name. Judge Pickering. Yes. Senator Durbin. And as I read this letter, I find the Sovereignty Commission calling people who were in labor organizing communist, referring to Mr. Evers and his family as being somehow involved in these outside agitators and infiltrator plots. It just doesn't seem like the right place to turn. Let me ask you about your former law partner and a person whose name has come up twice today, Carroll Gartin. You said in your opening remarks, and I don't want to misstate your remarks, that either you believed that Mr. Gartin was not a racist or Governor Winter would have believed that Mr. Gartin was not a racist. I will give you an opportunity to clarify that. Then you went on to say, in response to Senator Feingold's question, that someone would have characterized Carroll Gartin, your former law partner, as a progressive leader. I have here some advertising from Mr. Gartin's campaign in 1959 for lieutenant Governor. It shows a picture of Mr. Gartin and it says at the top, ``With this pen, I signed our State's segregation laws and the right to work bill, and with this pen I will veto any effort to weaken our defenses around our Southern way of life.'' He goes on to say, ``I am a total segregationist. I will close any public school in Mississippi before allowing Federal courts to mix black children with white children. I helped plan and pass the legislation which has maintained successful segregation to this date.'' Then after he became your law partner, again when he was a candidate---- Judge Pickering. When was that? What year was it? Senator Durbin. This was 1959, Judge Pickering. 1959. Senator Durbin. And then in 1961, I believe, you affiliated with him in a legal relationship, partnership. Was 1961 the appropriate year? Is that right? Judge Pickering. Yes. Senator Durbin. Then in 1963 when he was a candidate, again we find comments by Mr. Gartin: ``I am a firm believer in segregation. As lieutenant Governor, I worked for the passage of every law and every program designed to preserve segregation in all phases of life. This I shall continue to do.'' I don't doubt the fact that life has changed in America and life has changed in Mississippi, but can you sit there today and tell us that these are the words of a man that you had characterized as either not a racist or as a progressive leader? Judge Pickering. Senator Durbin, the statement that I made about---- Senator Feinstein. Could you speak directly into the microphone, please? Judge Pickering. Yes. I am sorry, Senator. Senator Feinstein. You may have to pull it toward you and pull the mike down a little. Judge Pickering. I have gotten a little weary and I leaned back. I apologize. Senator Durbin. You are entitled. Judge Pickering. Senator, the statement that I made about being progressive was a quote that I gave from my conversation with Governor Winter this morning. Senator Durbin. Do you believe it? Judge Pickering. That he was--that I believe he was progressive? Senator Durbin. Yes. Judge Pickering. Governor Gartin was defeated by Ross Barnett, who was a segregationist Governor who was viewed as being the one--Carroll Gartin made statements that I do not agree with, do not subscribe to. There was no politician in the South during the 1950's and the early 1960's that held office-- even William Winter, who is the most respected civil rights leader, he would have taken similar statements, I think, during that period of time. It is not right, no, but it recognizes the reality of where they were at that particular time. Senator Durbin. But on reflection today--I am trying to get your state of mind today. I know the world has changed, but as you look at what was said in those days, can you honestly say that Mr. Gartin was not a racist and was a progressive leader? Do you believe that? Judge Pickering. Well, the statements that he made certainly are statements that I would not agree with, that I would not subscribe to today, that were wrong. Senator Durbin. Were they racist statements? Judge Pickering. They were racist statements. Now, he--I think Carroll was trying to move the State forward as much as he could and be involved in politics, and I think that is what Governor Winter was saying in his statement when he said that Carroll Gartin was viewed as a--the segregationist candidate was always recognized as being Ross Barnett. He was sort of the same rhetoric as was Governor Wallace and the reason Carroll Gartin was defeated. So you are correct. Those were racist statements, without any doubt, but his philosophy and what he was trying to--would have been not to have been as radical as Ross Barnett. Senator Durbin. Let me ask you to fast-forward to a more recent date because this is history; it goes back many, many years. And the year was 1994 and it involved a cross burning case which I am sure you expected to be questioned on. This was a case which was described to us as a very sad and tragic situation, as I read it. In 1994, in a rural town in Mississippi, two men and a juvenile decided to burn a cross in the front yard of an interracial family, the Polkeys. In the early morning hours, the three defendants constructed an 8-foot cross, dowsed it with gasoline, placed it on the property of the Polkeys and set it on fire. The defendants, who had been drinking, repeatedly referred to the family--and I apologize to the Committee, but I am going to use the words that were used in the transcript here; I apologize for the use of these words, but this is what it says--referred to the family as niggers and nigger-lovers. Prior to this incident, this family had been a frequent target for harassment. On one occasion, someone spray-painted ``KKK'' in the road directly in front of the house. A short while later, they came home to discover a bullet hole in their front door. Two months before the cross burning, the juvenile had fired a bullet through the window of the Polkeys' house next to the bedroom where their 2-year-old daughter was sleeping. The juvenile told the other two men what he had done. Two of these individuals decided to plead guilty and to accept a reduced plea to testify against the third individual. The third individual refused to accept a plea bargain and went to trial. You were the judge at that trial. The thing that I find troubling here is a memorandum given to us by the Department of Justice after the guilty verdict was entered, the lengths that you went to to try to protect this defendant, referring in the sentencing hearing to the fact that this was just a drunken prank. I read this and wonder did you regularly contact the U.S. Attorney's office and the Department of Justice in Washington asking for them to give special consideration when it came to using the exact wording of the law, the sentencing of the law, or was this cross burning case an exceptional situation? Judge Pickering. Senator, let me tell you fully what I told Mr. Swan when he came before me for sentencing. I advised Mr. Swan this is conduct that will not be tolerated. Your views on interracial marriage or those of anybody else involved is completely immaterial. I described the cross burning as a despicable act. I observed that the act was drunk young men doing a dastardly deed that they should not have had in their heart. I further stated cross burning is a heinous crime. So I don't have any feeling that what you did should be swept under the rug or what you did--that you are an innocent person. I told Mr. Swan, you are going to the penitentiary because of what you did, and it is an area that we have got to stamp out, that we have got to live races among each other and the type of conduct that you exhibited cannot and will not be tolerated. So I don't want you to think that you are going to the penitentiary for something somebody else did. I would suggest that during the time you are in prison that you do some reading on race relations and maintaining good relations and how that can be done. Senator Durbin. Judge, my time has run out. I am going to ask one last question. Is it not true that you went to extraordinary lengths in this cross burning case with the prosecuting attorney and the Department of Justice to try to have a reduced sentence for this defendant? Judge Pickering. The issue with me was disproportionate sentence. The most culpable racist of the group the Government had brought--and before I knew the facts, they had him enter a plea to a misdemeanor and then when they came on this case, the young man--the Government's recommendation was 7\1/2\ years. The Government had agreed to home confinement for the first defendant, who was the most culpable and who was the only--was the most racist of them. The issue with me was disproportionate sentencing. The statements that I have just read to you were my views of--were my views of what he had done. Now, the sentence I gave him was 9 months more than the Government offered him if he had taken a plea bargain. Senator Durbin. Which he didn't take. Judge Pickering. Which he didn't take, and the guidelines provide--would have provided for that 9 months' difference. If he had pled guilty, he would have gotten 9 months less. He got 9 months more because he didn't plead guilty. Senator Durbin. Thank you, Madam Chairman. Senator Feinstein. Thank you, Senator Durbin. Senator Kyl? Senator Kyl. Thank you, Madam Chairman. Since I had to be in the Intelligence Committee and couldn't be here for most of the questioning, I think it would be unfair if I tried to go through a bunch of questions because undoubtedly a lot of it has been covered. So I just have one or two, but I do want to comment a little bit on the tone of what I perceive. I was here in the very beginning and then picking up recently, and I just wonder what the public must think watching a hearing like this: a candidate who 12 years ago passed the Committee and the floor unanimously when he became a Federal district judge, who served with distinction, and now is being cross-examined here as if he is almost a criminal. Very tough questioning on that side of the dais, very negative questioning against this nominee. Those of us on this side seem to be his defenders, and I suspect the public says, boy, there is politics as usual again. And I don't think that puts this Committee in a good light at all, especially as the Senator from Illinois began his comments saying you have to understand the context, Judge Pickering. Several of President Clinton's nominees didn't get a hearing, or didn't get a hearing quickly. I don't recall the exact words, but the implication was that if some of those nominees didn't get a hearing or a quick hearing, then maybe that had some relevance to the qualifications of Judge Pickering, which I don't see as being relevant. I think there is something to this notion of partisanship in a hearing like this, and it bothers me greatly because we have a lot of vacancies on the circuit courts and we have some very good nominees. The American Bar Association, which certainly shares a good reputation on the left side of the dais here, has rated this candidate ``well qualified'' and ``qualified,'' the majority ``well qualified,'' based upon his temperament, his background, his decisions, the very low rate of reversals and the like. Yet, we are dragging up things about what a candidate for Governor said back in 1959. The answer that the nominee gave here was, well, those statements are racial. I think as a Committee we have to be very, very careful because history will judge us. And I understand it is the right of outside groups to be as tough as they want to on anybody. They smear us regularly during campaigns. That is their right, and we all defend that right, but I don't think we have to go along with that. So, Madam Chairman, the only questions, other than the Senator from Illinois, that I heard were your questions in the first round. They were all legitimate, reasonable questions. I found nothing to object to any of them. And they were all answered, and I thought the answers were legitimate, reasonable answers. I just hope that rather than bringing political views to the hearing and sticking with them regardless of what the witness has said, unless this is all just a show and we are simply going to act out our pre-conceived notions here, we will fairly listen to the answers that the nominee is giving to these questions and the tone in which he is giving them and the spirit in which he is giving them, and we will evaluate those answers in the context of all of this. I think if one does that, at the end of the day, whatever political prejudices we all have--and we have to all acknowledge we have them--the nominee can be confirmed. I have just found that all of us in politics have an infinite capacity for rationalization and we can defend just about any position. Most of us are lawyers. Fortunately, Madam Chairman, you are not burdened with that fact, and therefore maybe this doesn't apply to you. But we can all argue either side of a case. Give us a little bit of fact and we can make a big deal out of it, and I just think maybe that is what is happening here. The question that I have to the nominee is one that I ask most nominees during these kinds of hearings, and it seems like a perfunctory and general question and all nominees answer the question pretty much the same way. Judge Pickering, you are under oath. You have been questioned in a pretty tough fashion here, so you need to really give this question a lot of thought, I think, before you answer it and I think the answer should carry some weight with the Committee. You have described in answers to questions how you would rule on cases. Obviously, we all have some differences of opinion on this Committee, and you have differences of opinion with us as to personal political views. Describe for the Committee how you will approach ruling on cases as a member of the circuit court, especially as it relates to your personal views. Judge Pickering. Well, I think my personal views are irrelevant. You look at the Constitution or the statute and you follow the language. If it is an area where you have Supreme Court cases interpreting that statute or that section of the Constitution, to the best of your ability you follow those Supreme Court decisions. If you happen to be in the Fifth Circuit, as I am, you follow the precedents of the Fifth Circuit, unless they are reversed en banc. That is how I would approach it. Senator Kyl. Are you familiar with the standards of the American Bar Association and the basis upon which they rate people under consideration for positions on the court? Judge Pickering. Well, I know that they call an awful lot of lawyers who have appeared before you and they get--and the question has been asked if I had asked any of these attorneys to write letters. Well, I don't know who the American Bar Association talks to. They talk to whomever they want to and I never know it unless a lawyer tells me. And so it was based on they analyze my opinions and see how I have written. They contact the people that have contact with the court and it is based on that, is my understanding of how they--and they do a personal interview, and I must say that is one of the things in this case that was pleasant. After the American Bar Association representative had interviewed the lawyers and then asked me to meet with him, I drove to New Orleans and met with him and that was one of the most pleasant things that has occurred in the--because at that time he shared with me some of the background that he had picked up, some of the comments that he had picked up, and it was a pleasant experience. Senator Kyl. Now, you said you had rendered about how many decisions? Judge Pickering. Approximately--you know, as to how many opinions that I have out there, I should point out that I have never said there were an exact number because I don't know. I gave an estimate that it was somewhere between 4,000 and 4,500 cases that I have handled, and that I estimated I had written opinions in about 25 percent of those, which would be approximately 1,000. And there was close to 100, a little less, of those that were written, so there should have been about 1,000 unpublished. Senator Kyl. I must say I practiced law for 20 years, much of it in Federal court, and very rare was the decision of a court that was actually written--a district court I am now talking about--that was written in the form of an opinion. I can think of three or four and not many more than that, and we had some pretty substantial cases. So I think folks should realize that the fact that a district court judge is not writing a lot of opinions is simply to comply with the guidelines that are given to Federal district judges not to burden the West Publishing Company and others with a lot of written opinions. Madam Chairman, thank you. Senator Feinstein. Thank you very much, Senator Kyl. Senator Cantwell, you are next. Senator Cantwell. Thank you, Madam Chairman. Judge Pickering, I want to go over an issue that has been brought up by several of my colleagues, but first I want to assure you that I am not a member of a leftist organization. I certainly respect the work of Senator Hatch, but I believe that the people in my State who are writing to me on your nomination are not members of a leftist organization. They are concerned about the fundamental right of privacy and its constitutional protection. They are concerned about how businesses handle their medical and financial information. They are concerned about how government obtains and handles personal information about them, and they are concerned about government intrusion into personal decisions. I think you have gotten the sense of concern about the fact that the Fifth Circuit encompasses three States that all continue to have laws prohibiting abortion on the books, even though those laws are unconstitutional and unenforceable. You can hear the concern today about the constitutional rights in which there was precedent which were decided one way and then overturned. Several of those cases dealt with constitutional rights. So I heard your answer on the question about looking at controlling precedents and what statutes would say, but how do we have confidence in what you are saying today that you are going to follow precedent? And I want to bring up one issue because this is where America is getting confused on this issue. I am new to this Committee. I think I am probably only the second or third woman ever in the history of the Senate to serve on this Committee, so I wasn't here when Judge Thomas was nominated to be on the Supreme Court. But when pushed on this question he said, and I quote, in answer to Senator Metzenbaum, ``Senator, as I noted yesterday, and I think we all feel strongly about this in the country, our privacy--I do; I believe the Constitution protects the right to privacy.'' That was his response, and yet shortly thereafter he dissented in the Planned Parenthood v. Casey decision. So we are confused about nominees who come before us who, in the past, had personal views that say one thing, come and tell us they will follow precedent, and yet there are instances in their background where they haven't followed that precedent as it relates to constitutional rights. So I wanted to ask you about this and about where you see that constitutional right to privacy in the Constitution. Judge Pickering. The Supreme Court--you know, I was thinking when you were asking the question about the Supreme Court. Being on an appellate court, the Fifth Circuit Court of Appeals, of course, is different than being on the Supreme Court because the Supreme Court establishes the precedent that we have to follow. I will follow the Supreme Court precedent, so that is one difference in the situation of Justice Thomas and myself. And I was just thinking that going through this process at my age, this is the last time I will be before this Committee. So I will follow what the Supreme Court has said, and I think that is the difference. The Supreme Court has spoken on the issue. I will follow that decision. Senator Cantwell. In October when the Committee met--and I was unable to attend that hearing--you were asked whether you recognized the constitutional right to privacy and you responded that the Supreme Court has recognized that right to privacy and that you would follow that precedent. But you did not say that you personally recognize in the Constitution that right to privacy, so I am asking you do you recognize that. Judge Pickering. I think the Supreme Court recognizes--I think the Constitution recognizes rights to privacy and I think the Supreme Court has delineated what those rights are. Senator Cantwell. So you believe that the Constitution permits the Federal courts to recognize those rights that are not specifically enumerated in the Constitution, like the right to privacy, like the right to travel? You believe that? Judge Pickering. In some instances, certainly. Senator Cantwell. What about this right? Judge Pickering. You are talking about on abortion? Senator Cantwell. Yes. Judge Pickering. I will--you know, my personal view--again, Senator, in the October hearing I stated I thought that was immaterial and irrelevant; that I thought that I would follow the decision, and I will. I will follow the Supreme Court precedent. Senator Cantwell. But I am asking you about do you recognize--I think this is where the division or diversion has been in the past. Somebody said ``I will uphold this,'' but I want to know fundamentally--and I am going to ask this of other people who come before us for nomination, where do they see in the Constitution that right to privacy and its protection. So do you see that the right to abortion is protected in the Constitution under the rights of privacy that are there? Judge Pickering. Senator, you know, as to my personal views, again---- Senator Cantwell. I am asking you whether you see that as a judge, as a lawyer. Judge Pickering. I think so, because the Supreme Court has said it is there. Senator Cantwell. OK. I am not sure I am getting an answer, but you are answering my question. You are giving me what your opinion is on that. This is a followup to this. The Fifth Circuit in reviewing cases of legislative acts seeking to restrict abortion basically has a higher standard. It uses a standard of review that requires the challenger to prove that there is absolutely no set of circumstances under which the regulation could be constitutional. In contrast, five other circuits in reviewing the same type of restriction followed the standard of the Supreme Court's more recent ruling in Casey v. Planned Parenthood that a restriction is only constitutional if it does not impose an undue burden. So it essentially reverses the burden of proof. Do you believe in the standard of review more recent in Casey, that that is a more appropriate standard and that is what the Fifth Circuit should be using? Judge Pickering. Senator, the Fifth Circuit precedents in the abortion area is not an area where I have done research, but I would say that, you know, I think the Supreme Court decision is the decision that trumps other decisions. I am bound by the Supreme Court precedent, I am bound by Fifth Circuit precedent until it is reversed, and I would follow the Supreme Court precedent and I would follow the Fifth Circuit precedent. Senator Cantwell. You might want to look at that a little more clearly about how the Fifth Circuit would use that because that is, in fact, what the other circuits are using, is the Supreme Court standard. I would like to turn to another issue that I think has gotten many constituents in the Northwest concerned about their rights and how this administration or potential nominees to a court could overrule their rights, and this deals specifically with the issue of assisted suicide. In Oregon, voters passed an initiative permitting physicians to prescribe lethal quantities of drugs to aid in assisted suicide in very limited circumstances. Last fall, the Attorney General announced that he would prosecute physicians abiding by the voter-passed initiative and remove their licenses. Now, based on my review of your record, you appear to be very deferential to legislative acts and States' rights. Would you give deference to the popular approved State law in this case? Judge Pickering. Senator, that is an issue that may come before me and it is my understanding it is inappropriate for me to say how I would rule in a given case. I will give you the general principles that I would follow, and that is I would follow the Supreme Court precedent and I would follow the precedents of the Fifth Circuit. I don't feel comfortable going further in that issue. I don't--whatever those precedents are, I would follow them. As far as doing research on assisted suicide, I have not done that. Senator Cantwell. I think I still have time for another question. Your record on employment discrimination issues has been discussed today, and in my State the district court recently upheld that Title VII requires than an employer provide prescription coverage to employees as an obligation, including contraceptive coverage to women. The court held that Bartel's prescription drug plan discriminated against the female employees of that company by providing less complete coverage. Do you agree that Title VII's guarantee of equal treatment in the workplace logically requires that if an employer provides prescription drug benefits to an employee that it must provide contraceptive coverage? Judge Pickering. That is an issue that I have not researched, and I don't think that the Fifth Circuit has ruled on that issue. I don't think there is controlling case law, but if there is controlling case law from the Supreme Court or the Fifth Circuit, I would follow that. Senator Cantwell. Thank you, Madam Chair. I see that my time is about expired, so I think I will wait on the others until the second round. Senator Feinstein. Thanks, Senator Cantwell. Senator Edwards, you are next. Senator Edwards. Thank you, Madam Chair. Good afternoon, Judge. Judge Pickering. Senator. Senator Edwards. Judge, I want to ask you some questions about an issue that came up briefly earlier, this issue of something that happened in 1994, something that is not in the distant past, this case involving the cross burning that you were the trial judge for. As I understand it, there were three defendants in that case, two of whom pled guilty, one of whom went to trial before you. Is that correct? Judge Pickering. Yes. Senator Edwards. The two who pled guilty admitted their guilt and took responsibility for their actions. Is that correct? Judge Pickering. Yes. Senator Edwards. And it is customary in criminal cases in both Federal and State court to provide, either through plea agreement or otherwise, some leniency to those who plead guilty, participate in a plea agreement, take responsibility for their actions, as opposed to somehow who denies their guilt and goes to trial. Is that fair? Judge Pickering. Well, the guidelines provide, Senator, that there is a two- to three-level deduction in the guideline range for one who pleads guilty. And in this instance, it would have made the difference in roughly 9 months that he would receive for that. Now, the---- Senator Edwards. I don't want to get too hung up on that. I just wanted to ask you that general question---- Judge Pickering. Yes. Senator Edwards [continuing]. Because I have three areas I need to ask you about, and they cause me concern and I want to give you a chance to respond to them. They cause me concern on two different levels. One is what it was that caused you to take the action you took with respect to that case; and, two, what authority you had as a judge to take the actions you took. It appears to me from reviewing all these documents that you did three things that are, at least in my own experience and through decades of being a lawyer, outside the ordinary. One is that you told the lawyers, the Government lawyer, after the conviction--and I might add my understanding is that even after conviction, this defendant who had participated in burning a cross on a couple's lawn with a young child still denied that he had done anything wrong or that he was guilty. You told the Government lawyers that you would, on your own motion, order a new trial. And when the Government lawyer asked you, and I am quoting now, what would be the basis for such a motion, your answer was ``any basis you choose.'' First of all, Judge, looking at the rules, and having worked with them for years myself, I believe the rules provide that a judge has no power to order a new trial on his own motion. First of all, did you say that you would order a new trial, even though no motion for a new trial had been made? Judge Pickering. I did not. Senator Edwards. So you deny that? Judge Pickering. Yes. I have reviewed the transcript. Senator Edwards. Yes, sir. Do you deny having said that? Judge Pickering. I did not say that. Senator Edwards. OK. The second area I want to ask you about--so if the lawyers who were involved in that case have said that that is a statement you made to them, that would be a lie? Judge Pickering. Senator, on the record, I mentioned---- Senator Edwards. Excuse me, Judge. This was not on the record. According to the documents that we were provided, this took place in a private meeting that you had with the lawyers where you told the lawyers you would order a new trial on your own motion. And when they asked you--I am quoting now--what would be the basis for such a motion for a new trial, you said ``any basis you choose.'' Do you deny having said that? Judge Pickering. Senator, I have no recollection of having said that and I do not believe that I said that. Now, I have not seen the document that you are referring to. I have not had the opportunity--the Justice Department did not show me the file that they had. Senator Edwards. Did you have private meetings with the lawyers off the record about this case? Judge Pickering. The response that I gave to Senator Leahy on this indicated that after the first---- Senator Edwards. I am not asking about Senator Leahy. Did you have private meetings with the lawyers in this case? Judge Pickering. With the defense counsel and the private counsel. I had a meeting with them, yes, sir. Senator Edwards. So the private meetings did take place? Judge Pickering. A private meeting took place. Senator Edwards. OK, and you deny having had any discussion in that private meeting about ordering a new trial on your own motion, a new trial order that at least from my reading of the law you would have no power to grant on your own. Do you deny having done that? Judge Pickering. There was discussion on the record of a new trial on the basis of the instruction, but now I don't have any recollection of any indication that I would do that on my own motion. Senator Edwards. The second area I want to ask you about is you made a telephone call to a high-ranking Justice Department official, according to the information that we have. And you are familiar, are you not, Judge, with the Code of Judicial Ethics that applies to you? You are familiar with that, are you not? Judge Pickering. Yes, uh-huh, I am. Senator Edwards. And you are familiar with Canon 3.A.4 of that Code which says that ``except as authorized by law, a judge should neither initiate nor consider ex parte communications on the merits of a pending or impending proceeding.'' Did you make a phone call to a high-ranking Justice Department official on your own initiative? Judge Pickering. We had had---- Senator Edwards. Not ``we,'' you. Did you make such a phone call? Judge Pickering. I called--I have indicated that I called Mr. Hunger and discussed the fact that I was frustrated that I could not get a response back from the Justice Department and I thought there was a tremendous amount of disparity in this sentence. Senator Edwards. Yes, sir. Were the Government prosecutors on the phone when you made that call? Judge Pickering. No, they were not. Senator Edwards. So that would be what we lawyers and judges would call an ex parte communication, would it not? Judge Pickering. Well, whether the Government attorneys had been on the phone or not, it would have been a question of whether or not the defense counsel would have been on the phone. Senator Edwards. Well, was the defense counsel on the phone? Judge Pickering. No. We had discussed that with them and this was a followup conversation as to what we had discussed with defense counsel present. Senator Edwards. Were any of the lawyers in the case on the phone when you called Mr. Hunger? Judge Pickering. No, they were not. Senator Edwards. So that was an ex parte communication, was it not? Judge Pickering. I was. Senator Edwards. In violation of the Code of Judicial Conduct? Judge Pickering. Well, I did not consider it to be a violation of the Code of Conduct. Senator Edwards. Well, can you explain that to me? The Code says you should neither initiate nor consider ex parte communications of a pending or impending proceeding. The case was still pending at that time, was it not? Judge Pickering. It was pending, and Mr. Hunger indicated this was not something---- Senator Edwards. And you made an ex parte communication, did you not? Judge Pickering. I talked with Mr. Hunger. Senator Edwards. Didn't you just tell me that was an ex parte communication? Judge Pickering. Well, it was ex parte from the standpoint I was talking, but he did not have responsibility to make a decision in this case. Senator Edwards. In a third area, on the same case, did you also direct the Justice Department lawyers, the line prosecutors, to take your complaints personally to the Attorney General of the United States? Judge Pickering. In the order, yes, sir. Senator Edwards. Can you tell me, Judge, in how many other cases, and if you can tell me the names of the cases where you have, after a conviction and prior to sentencing or subsequent to sentencing, told the lawyers in a private meeting that you would order a new trial on your own motion, contacted on your own initiative, contrary to the Code of Judicial Conduct, a high-ranking Justice Department official about a case pending before you, and, third, directed line prosecutors to take your complaints personally to the Attorney General of the United States? Can I just ask you, have you ever done that in any other case, to your memory? Judge Pickering. May I explain my answer then? Senator Edwards. Of course. Judge Pickering. I have never had--no, I have never had a case where the disparate treatment was so great as it was in this case, from the most culpable parties. The Government came in and agreed to a plea to a misdemeanor that resulted in a sentence, and the Government agreed to home confinement for those. And then they were recommending 71/2 years for the defendant who happened to be a little bit older, but who was-- the most racist one of the group was the 17-year-old, and I felt that this was tremendously disparate treatment. I did not feel it was inappropriate to say I want to know that this is the policy of the Government, and asked them to do that. Senator Edwards. Do you believe, Judge, that if you disagree with the law as it applies in a particular case, as apparently you disagreed with the mandatory minimum sentence in this case compared with the other sentences that had been handed down--do you believe that if you have such disagreement that that entitles you, No. 1, to do things that the law does not authorize you to do, or, No. 2, to engage in ex parte communications with people involved in the Department of Justice? Judge Pickering. Well, Mr. Hunger was not involved in the decisionmaking process, and then---- Senator Edwards. Why did you call him? Judge Pickering. I called him---- Senator Edwards. Why did you call him about the case if he wasn't even involved? Judge Pickering. I called him to discuss my frustration with the Department of Justice and to see his reaction. Senator Edwards. Did you ask him to do anything? Judge Pickering. No. Senator Edwards. Wait a minute. I want to get this--you call him about the case. You were concerned about what had happened in the case. He is in the Department of Justice. I know Mr. Hunger. He is someone I like and respect very much, by the way. But you didn't talk to him about doing anything. You didn't ask him to do anything. You had no conversation with him about doing anything about the case. Is that your testimony? Judge Pickering. I called and expressed my frustration about the disparate treatment and I called and expressed my frustration about the fact that I had instructed the attorneys to get an answer, a response, from the Department of Justice in Washington. They had not done that. Senator Edwards. What did you want them to do about it? Judge Pickering. Well, at that time I wanted--I guess more than anything else, I wanted to vent with someone the frustration that I was experiencing in not being able to get a response. And he was a friend---- Senator Edwards. So you didn't ask him--excuse me. I am sorry. You didn't ask him or expect him to do anything about it? Judge Pickering. No, sir. Senator Edwards. Thank you, Madam Chair. Senator Feinstein. Thank you, Senator. Chairman Leahy. Madam Chairman, might I just note one thing? The material that Senator Edwards has quite appropriately quoted from was material we requested from the Department of Justice a week ago. Just barely before this hearing began--I think I was on my way over here--I was told it just arrived, a heavily redacted copy of it. The Department of Justice told us that it was a heavily redacted thing, but we were restricted to how we could put in the record, and so on and so forth. We have asked them, Judge, in fairness to you, that a copy also be given to you. I must admit that I am not quite sure why so much stuff is redacted about your conversation or anything else in here, but I just want you to know I made that request. And I repeat that request to the Department of Justice and the administration and White House people who are here to make the same papers available to you. Actually, I would ask them to give you the whole copy, not any part redacted, and give us the part they have held back, too. But I just want you to know that just as I notified them of what areas I would question you about, I want them to give this to you, too. Judge Pickering. Yes, sir. Senator Feinstein. Thanks, Mr. Chairman. Judge Pickering, are you OK to go on or do you want to take a break? Chairman Leahy. You are allowed to. Judge Pickering. Yes, I think I would like to take a break. Senator Feinstein. You would like to take a break? Judge Pickering. I would like to take a break, yes. I think it is, what, 10 minutes after five. We have been going---- Senator Feinstein. All right. Is 5 minutes OK? Judge Pickering. Take 10? Senator Feinstein. Ten minutes. We will see you in 10 minutes. [The Committee stood in recess from 5:11 to 5:32 p.m.] Senator Feinstein. The hearing will come to order. Judge Pickering, I know this is tough because the afternoon is always a long one. Having said that, we apparently are going to have two stacked votes at 5:40. Left in this round, Senator Schumer, I believe, is the last person for this round of questions. There are Senators who do have additional rounds for the next round. So if it is agreeable with you, I would like to go now kind of non-stop until we conclude, and members when the votes comes up just one by one will go down and vote. Is that acceptable with everybody? Senator Hatch. Yes. Senator Feinstein. Good. Then, Senator Schumer, you are up. Senator Schumer. Well, thank you, and I want to thank you, Madam Chairman. I want to thank you, Judge Pickering, and welcome you back here. This is your second hearing. As you know, the first one was held under very difficult circumstances in the small room over in the Capitol and there were four other judicial nominees on the panel. We hadn't had a full opportunity to review your record. You were nice enough to go through the whole work with us and get all of the other opinions which we have now had a chance to look at, and I want to thank you for being here. My questions are in two areas. The first is just on general judicial philosophy and where it plays. As you know, last summer I chaired some hearings examining the judicial confirmation process and looked at the role that judicial ideology plays and whether nominees bear a burden of proving themselves worthy of any lifetime seat on the Federal bench. After chairing those hearings, it seemed to me that we should have the process be more open and honest. We should talk about a nominee's judicial philosophy. We should let that play a role in how we vote for judges. We have always done that, but we have done it beneath the table and it leads to a process that is sometimes less than honest. I think it is very important right now more than ever for the appellate court. The Supreme Court is taking fewer and fewer cases every year, so that circuit court judges really do have the last word for every American who wants to have his or her day in court. For somebody like myself who believes in moderation on the bench, we are in an era of unprecedented conservative judicial activism. The Supreme Court is leading the charge and the Fifth Circuit is not far behind. The courts are cutting back, in my judgment, on Congress' power to protect important areas such as the environment, such as workers' rights, women's rights. It is a simple proposition, but I think many in the courts have lost sight of it recently, and that is Congress makes the laws. Judges are nominated and confirmed to interpret and apply those laws. That is the balance the Framers struck. It worked; it has been working well since Marbury v. Madison. But now, like no time in our past, I think we are seeing a finger on the scale, slowly but surely altering the balance of power between the Congress and the courts. I think Justice Breyer summed it up well, at least for me, in his eloquent dissent in the Violent Against Women Act cases. He said, ``Since judges can't change the world, it means that within the bounds of the rational Congress, not the courts, must remain primarily responsible for striking the appropriate State- Federal balance.'' We are charged, it seems to me, for better or for worse, with making policy. Your rule, the judge's role, is different. It appears to me, however, that with increasing frequency the courts have tried to become policymaking bodies, supplanting court-made judgments for ours. That is not good for our Government and our country. I would say that view is particularly prevalent on the Fifth Circuit. It has become one of the most conservative courts in the country. It is in danger of swimming outside the judicial mainstream. As my colleague, Senator Durbin, pointed out, a number of nominees that would have balanced the court were held up in the last Congress. So I want to put that in the context of your record. It is no secret you have some strong views. This is America. God bless you for those views, but they are quite different, I would say, not only from mine and the majority of my constituents, but quite outside the American mainstream. Most Americans believe in the right to choose. You have endorsed amendments to overturn Roe. As Senator Kennedy's questions brought out, you look at voting rights differently than I do. What, I guess, troubles me is in your cases, at least the ones that I have read, you have injected your own opinions into the case law, worrying me about what you might do on the bench. I will give you one example. There was a racial discrimination case, Foxwood v. Merchants Company, 1996, and in it you complained about the ``side effects''--these are your words--``from anti-discrimination laws,'' unquote, that cause people protected by such laws to, quote, ``spontaneously react that discrimination caused any adverse reaction against them.'' That is not the law. That is your opinion, and it is a comment, I think, that doesn't indicate just a following of the law. You have said to the panel repeatedly that you would follow the law, but, you know, we have had that before. We have had judges who come before us and say, look, I am just going to follow the law. Senator Cantwell brought this out, I guess, when now-Justice Thomas was here. He said he would follow the law on Roe v. Wade and then, at least in the opinion of many legal scholars, his opinions went outside. What more can you say to us, to those of us concerned with judicial philosophy who believe that is one of the main ways we vote for judges on two counts? One, how can you convince us, other than just saying you will follow the law, that you will, particularly given the penchant for invoking your own opinions, your own views, in the cases? And, second, some of my colleagues had argued, my good friend from Alabama, that the Ninth Circuit was too far to the left and needed some judges on the right side to balance it. I believe he said. I may not be right, but I have heard the argument. Senator Sessions. The record demonstrated an extraordinary reversal rate, unlike anything that the Fifth Circuit has. The Fifth Circuit is not outside the mainstream. Senator Schumer. I will reclaim my time. Senator Feinstein. We will stay, gentlemen---- Senator Schumer. I invoked his name and he had every--my good friend, Jeff, had every right to respond. We are good friends, actually. Second, what about the idea that we should be looking for a more moderate nominee on the Fifth Circuit, at least if you believe that the opinions of the Fifth Circuit are quite far over and that moderation is called for and balance is called for? Can you answer both of those questions, please? Judge Pickering. Well, the first question, Senator Schumer, you were asking about the case--I believe it was the Flowers case. In that case--and when I indicated that I felt like this type of reaction really was inimical to not having discrimination in the workplace, these two defendants, or the two plaintiffs in that case had chased down a--they were rather large individuals. I heard the testimony in the case. There was a rather diminutive African-American that they had threatened to kill because he had come in and he was a Federal agent and he had come in and he had investigated their store for food stamp fraud. And then the company that was giving them credit stopped their credit because of this charge on this situation, which to me this was a frivolous lawsuit. And my comments had more to do with the fact that this was a frivolous lawsuit and that people are abusing it, and I think that does create problems for everybody who has a legitimate claim and I think it is disruptive to--I think it makes it harder on those who have legitimate claims who make it, and I think it also disrupts race relations whenever people claim discrimination when there is no discrimination. That is what my remarks were intended to reflect. Senator Schumer. I understand, but that didn't have relevance as to following law in the case, did it? It was your own view as to people's reaction to an existing law. Judge Pickering. I felt like it was a comment on--the comment was intended to discourage people from bringing frivolous lawsuits. Senator Schumer. OK, but let me ask you to answer the two general questions that I have asked. Judge Pickering. All right. Senator Schumer. What more than just words can you do, and maybe there is nothing, to assure us that you would follow existing law rather than in a judicially active way try to change it? Judge Pickering. Senator, I don't know but two ways to establish that. One is, of course, your testimony under oath, and the other is your record for 10 years. As the Legal Times article in which they analyzed it, they concluded that I had followed the law, that the criticism that I had injected personal views did not keep me from following the law whenever that came down. I viewed these as I did the one in ERISA. It was a question of public interest, which is one of the bases for publishing, and that opinion was used in the debate for a patient's bill of rights in the House of Representatives. So it is sort in the nature of a law journal article or a dicta. Precedents come from dissents and they come from dicta in cases and they come from law journal articles. Senator Schumer. I may come back to the balance issue, but I don't know how much time I have and I want to get this and I want to give you your chance here. The case that has been cited, the cross burning case that has been cited by some of my colleagues, I need not tell you is of great concern to many members of this panel. And it wouldn't be fair for us not to give you a full chance to give your views and tell us something, and let me just tell you where at least I come from on this. It seems to me that cross burning is not just a prank; it is a dagger aimed at the heart of what has been the poison in America, which is our problems with race. The Founding Fathers knew that was our biggest problem and chose to push it under the table. Many of them, I think, later admitted that that was the greatest mistake they made in the Constitution. When de Toqueville came to America in 1830-something, he said that this country will become the greatest country in the world, except for the poison of race. I have to tell you, when someone burns a cross, you know that it is not just a prank, it is just even aimed at the person on whose lawn the cross is burned. It is aimed at all of America and it brings up the invidious history we have had in this regard. So a mandatory sentence was established for that reason. This is different than any other kind of prank. I have to tell you the reasoning that you give for wanting a reduced sentence, the disparity, doesn't wash with me. I haven't heard as many cases as you. Senator Feinstein. Your time is up. Senator Schumer. Thank you. I know case after case where someone pleads to the State's evidence and gets a year or two in a murder case, and someone else gets life imprisonment. This happens regularly. So I guess many of us find it to be, I guess, curious--``troubling'' would be a better word--that on this kind of case where there should from any citizen, let alone a judge, an unusual sensitivity, an almost extraordinary effort to get a lower sentence, you would go below the mandatory minimum when the disparity is not all that unusual. I could sum that up. I have talked to some of my colleagues. I think that is a general feeling here, and we would not be fair to you if we were to vote on your nomination without giving you the full chance. It won't satisfy me for you just to say disparity, because there should be greater sensitivity, No. 1. And, No. 2, in my less long, less extensive legal career than yours, I know of many more cases where there is a greater disparity than 27 months in terms of sentencing. Can you elaborate on what motivated you to go to go to the efforts you did on this particular case? Tell us why, in something as sensitive as cross burning, something inside you didn't say, you know, this is not one to go to the mat on. Judge Pickering. Senator, the disparity--the sentence was 27 months different. What concerned me is the Government came in and they pled the 17-year-old to a misdemeanor, and at the very start they told me we have no objection to home confinement. That was the position of the Government to begin with. I did not know the details at the time that I took the plea. I did tell the Government I have some concern about whether or not this is going to create problems with disparity of sentence. Then they came in and they pleaded the second defendant to a misdemeanor, and he had diminished capacity and they had no objection to his pleading in that manner. Both of these wound up, by agreement with the Government, with home confinement. There were some terms placed on these that they were limited in certain areas and they were ordered to do some things in the area of race relations and restitution. Now, when the evidence came in, it turned out that the 17- year-old had shot into the house and the Government did not charge the 17-year-old with shooting in the house. Likewise, the 17-year-old--there was testimony that he had always been a racist. The testimony in the record before me was that he was by far the most culpable, that he had previously shot into the house and the Government did not elect to prosecute him on that and agreed to home confinement. Then they came in, they offered to have Swan plead guilty. They told him he could not plead guilty to a misdemeanor, but they did allow him, or offer him pleading guilty to a felony that would have resulted in about a 15-month sentence. That is what the Government had agreed with him at the beginning, that if he pled guilty the guidelines would have calculated out about 15 minutes--15 months, is my understanding from what I have been able to review. And, again, I have only reviewed the documents that the Committee has seen just very momentarily when I went outside just a few moments ago, and I have not really done anything more than cursorily reviewed that. Senator Schumer. But according to Justice, Swan was the leader of the case, the ring leader. Judge Pickering. I heard the evidence and my perception was that he was not. I had that clear perception, and I think that the testimony that was there will indicate that the one that was the instigator of it was the 17-year-old. Swan did go on it. Now, Swan--the reason he did not plead guilty--he never denied that he went and burned the cross, and he indicated that he was willing to go and apologize to Mr. Polkey the next day. But he went down there and Mr. Polkey was outraged and he decided that he better not, that he might be in danger. But he denied that he had the necessary intent. Now, in the eighth--there were four of the appellate court judges that reviewed this that said that Section 844 did not apply to cross burning. 844, they said Congress adopted was to apply to arson, the crime of arson, but not to cross burning. Now, one of the circuits had come out that it did apply to cross burning, and one of them had come out that it did not. So that was a decision the Fifth Circuit had not spoken on. My problem with this and the thing that I really felt was wrong is that the Government was coming in and that they were recommending 7\1/2\ years for Swan and that they had recommended home confinement for the other two. I thought that was disparate. I thought it was really the worst case of disparate sentencing that I had ever seen. Now, I don't want to think for 1 minute that I minimized the seriousness of cross burning. That is why I took a stand, not just that reason, but the acts of the Klan in those areas of trying to intimidate people because of race is something that is despicable, and that is why I took a stand against the Klan in the 1960's. And when I was sentencing Mr. Swan, I told him this is conduct that will not be tolerated. This is a despicable act. You have got to pay a debt to society. It is a reprehensible crime, it is a dastardly deed. Cross burning is a heinous crime and you are going to the penitentiary for what you have done. So I view, as do you, Senator, that it is a heinous crime. I so stated in the record. The only problem that I had in this situation was the disparity of sentence of having the most guilty defendant--the Government came in and pled him to a misdemeanor, where he had home confinement, and now they wanted to sentence this one to 7\1/2\ years. There was a split in the circuit, and if I had followed the Lee case, the sentence would have been in this area. When the time came to sentence him, I sentenced him to the mid-range of the guideline line that the Government agreed to in the memorandum of understanding. The guideline was 24 to 30 months. I sentenced him to 27 months. That was 9 months more than he would have gotten had he pled guilty before trial. Senator Schumer. Thank you. Senator Feinstein. Thank you, Senator Schumer. We are going to go into our second round now. One last question on the Swan case, if I might. Was it true that Mr. Swan drove the truck and provided the wood for the cross? Judge Pickering. It was his truck. Whether or not he--he was intoxicated that night. I don't recall without reviewing the transcript more than I have, Senator Feinstein, Madam Chairman. Senator Feinstein. Did he provide the wood for the cross? Judge Pickering. They went to his barn and got the wood, yes. Senator Feinstein. OK, all right. Judge Pickering. But I did not consider that nearly as much of an indication as the young boy who had come by there and shot into the house, and that there was testimony that he had always had--harbored racial animus. Senator Feinstein. I understand. I would like to use my time in a little different way because, in a sense, for many of us this particular seat is as important as a Supreme Court seat. And I want to explain to you why, and in order to do it I would really like to read something that was sent to me on the Fifth Circuit. ``The Fifth Circuit once served as a trailblazer in protecting individual rights. During the 1960's and 1970's, the Fifth Circuit enforced and protected various individual rights, such as, one, requiring desegregation in almost every aspect of the fully segregated South; two, enforcing voting rights; three, prohibiting employment discrimination based upon race; and, four, finding that psychiatric patients who were involuntarily committed to State institutions had a Federal constitutional right to adequate treatment. Four of the circuit's judges exemplified this commitment to protecting individual rights. Known as 'The Four' by opponents, they were accused of destroying the Old South by dismantling the systemic segregation of African-Americans that existed in every aspect of society.'' To a great extent, I think the testimony today has brought out what a different world it was, indeed. ``However, the current Fifth Circuit dismally fails to live up to the legacy of its predecessors. The court is more likely to eliminate to limit rights than to preserve or enforce them.'' That is where your appointment becomes so critical. We all know you are a conservative. That is not really the problem. The problem really is that--and I am going to talk to you about the Equal Rights Amendment, I am going to talk to you a little bit more about reproductive choice, because this becomes a pivotal position for people who have fought for decades for certain rights. And if you have a conservative--I am not saying you are--unabashedly out of the mainstream, all those rights get set back. Could you respond to the statement, please? Judge Pickering. Well, you know, I was looking back in preparation. I do not think that my activities and all of the things that I have done in my life are outside of the mainstream. I think they indicate someone who has been concerned about these rights, and that I have taken action to protect these rights. Going back, I don't want to just keep repeating, but we have talked about the cross burning. We have talked about the bi-racial Committees. We have talked about the fact that we have been involved in integration personally in every aspect from religion, to home, to fraternity, to schools. And I am committed to protecting the rights in accordance with the Constitution. I will have to follow the controlling precedent, but I feel like that is an area that I have made a commitment to and I think my life history reflects that. Senator Feinstein. All right. Now, I supported the Equal Rights Amendment. I did research at the time because I was very much involved in paroling and sentencing earlier, and women did not have equal rights under the law in many criminal actions. It is a fact, Judge. Now, let me relate that fact to your statement in 1976 at the Russian--at the Republican National Convention, and I quote---- [Laughter.] Senator Feinstein. We shouldn't laugh. That wasn't funny. [Laughter.] Senator Feinstein. ``Proponents of the ERA,'' the Equal Rights Amendment, ``won its passage only for psychological reasons. I don't think the Equal Rights Amendment is needed to secure legal rights.'' Judge Pickering. Well, we came out, the subCommittee I was involved in, and we recommended the passage of statutes, of laws, to guarantee equal rights to women. I supported that then strongly and I still think personally that they are entitled to equal rights. That is the same position that the legislative bodies and the American people have taken to this point. The Equal Rights Amendment was never confirmed, but you do have the laws against discrimination that have been applied, and then the Supreme Court has more recently held that they do have equal rights under the Constitution even without an amendment. But at the time, I felt like the amendment itself would perhaps take away some of the special--some of the rights that women did have at that area in regards to domestic matters and spouse and in regard to the military. There were a number of areas that I thought that they could lose some preferences that they had. But I supported at that time, and now support, equal rights. I have 9 grandchildren and 3 daughters, and I certainly would never---- Senator Feinstein. How many are women? How many are girls? Judge Pickering. I have 9 granddaughters. Senator Feinstein. Oh, granddaughters. Judge Pickering. I have 9 granddaughters---- Senator Feinstein. That might be a help. Judge Pickering [continuing]. And 3 daughters, and I would never take away any of their rights. I have 18 grandchildren, and next month I will have a tenth granddaughter. Senator Feinstein. I guess what I am trying to say to you is that at the time that you made that statement, women, for certain crimes in certain States, were serving much longer sentences than men. I documented it. Judge Pickering. That is not right. Senator Feinstein. It is not right. Judge Pickering. That is one of the--the probation officers, whenever they heard that there had been some question about my sentencing, they came to me on their own and they were discussing the fact that I had been very compassionate in trying to find ways not to send African-American defendants and other defendants who were first-time offenders who did not have violent records--and they were talking about the fact--they said, Judge, really you are a pain because you make us prepare charts for every multi-defendant case so that you can stay equal. So if there was disproportionate sentencing to women at that time, I think that was terribly wrong. Senator Feinstein. All right. Now, another statement you made at that same convention. Let me give it to you and ask you to respond, quote, ``We oppose abortion and support a constitutional amendment to limit abortion. The Supreme Court of the United States allows abortion on demand. It gives the husband no say-so. The taking of life is wrong and we should oppose abortion,'' end quote. Judge Pickering. Madam Chairman, as I have indicated before, I know the difference between a political decision and position and a personal decision and a judicial decision. I will follow the law. Senator Feinstein. What do you mean, ``I will follow the law?'' Judge Pickering. I will follow the Supreme Court precedent. The Supreme Court has spoken on the issue of abortion and I will follow it. Senator Feinstein. You are saying you would uphold Roe v. Wade? Judge Pickering. I would have no choice but to uphold that because the Supreme Court has decided it and that would be my responsibility. Senator Feinstein. I am looking for one question here. Let me quickly followup with this. Debate continues in circuit courts and at the Supreme Court regarding the protection afforded a woman's constitutional right to choose following Casey. Senator Cantwell referred to that. For example, in the 2000 Supreme Court decision Stenberg v. Carhardt, the Justices' opinions revealed a disagreement about the meaning of the Casey decision. Justices Souter and O'Connor concurred in the Court's opinion that the ban on so-called partial birth abortion was unconstitutional because it lacked an exception for women's health. However, Justice Kennedy dissented, arguing that Casey had scaled back the previous decisions holding that the woman's health must be paramount. Which opinion in the Stenberg case, Souter and O'Connor, or Kennedy, reflects your view about the role that a woman's health must play in considering an abortion regulation? Judge Pickering. Senator, again, I think that might be an issue that I would be called upon to rule upon, and I think it would be inappropriate for me to give a response to that. Senator Feinstein. Senator Hatch? Senator Hatch. Well, thank you, Madam Chairman. Judge Pickering, earlier you were asked about the Swan case. We were all surprised to learn that you had not seen the documents that Senator Edwards asked you about, and I understand that the Department of Justice has just provided you with copies of those documents. Is that right? Judge Pickering. Yes, they did. I went over them. I scanned them. I didn't really have---- Senator Hatch. In other words, since that---- Judge Pickering. That is correct. Since then, I have viewed them very briefly. Senator Hatch. Well, now that you have had a chance to briefly look over those documents, let me just ask you a couple of questions. First, I would like to ask about your conversation with Assistant Attorney General Frank Hunger, reflected in one memorandum. What is your recollection of that conversation? Judge Pickering. My recollection is simply that Frank was a friend, that I---- Senator Hatch. He is from Mississippi, isn't he? Judge Pickering. From Mississippi. We had been---- Senator Hatch. So you knew him? You knew him before? Judge Pickering. I know him, and I stated a few moments ago, Senator, that that was an ex parte contact, and it was. I do not consider it to be an ex parte contact---- Senator Hatch. Within the framework of the---- Judge Pickering. The framework of the Judicial Code of Ethics. Senator Hatch. Well, he was not one of the attorneys assigned to the case, was he? Judge Pickering. That is correct. This was not his area of responsibility. Senator Hatch. And your conversation with him did not benefit the Government, did it? Judge Pickering. It didn't benefit either side. Senator Hatch. Well---- Judge Pickering. It did not benefit the Government, no. Senator Hatch. What is all the hullabaloo about, then? The fact of the matter is I believe that judges talk to U.S. Attorneys all the time. They belong to the Justice Department. I believe they talk to people at Justice when they see injustices or inappropriate prosecution, and so forth. But the fact is that nobody benefited from that conversation. Judge Pickering. That is correct, no one. Senator Hatch. And certainly the Government didn't benefit from it. Is that right? Judge Pickering. That is correct. The Government did not-- -- Senator Hatch. Do you have anything else you would care to say about that? Judge Pickering. Well, simply that it was, from the technical definition of ex parte contact--I called him and it was just the two of us that were talking, but again I do not consider that that was a violation of the rule. Senator Hatch. What was your outrage that you were talking about, that you talked to him about? Judge Pickering. The outrage was that the Government came in and, in my opinion, they pled the one that was most guilty and agreed to home confinement, and then they were recommending 7\1/2\ years for this other young man. I think the crime, cross burning, is reprehensible and I think we have got to--and I stated on the record I have got no intention of not sending you to the penitentiary, and I sent him to a longer---- Senator Hatch. Your concern was disproportionate sentencing? Judge Pickering. Yes, absolutely. Senator Hatch. That this fellow wasn't as guilty as the other two, and yet he got slammed? Judge Pickering. That is right. Senator Hatch. And he got slammed because he wouldn't plead guilty in advance? Judge Pickering. Well, the Government said that that is what they were interested in, was being able to administratively use this to get pleas. They had previously agreed to plead him guilty to a felony that would result in a sentence of about 15 months. Senator Hatch. I don't know whether you saw this Bob Herbert article in the New York Times today. It is called ``A Judge's Past.'' Judge Pickering. Yes, Senator. I was trying to prepare for this and I didn't really want to read things of that nature. At the time, I did glance at it, but I didn't read---- Senator Hatch. Well, I have to admit I think you have answers to everything he has raised in there. I think it is basically a very unfair, one-sided article. Normally, I think hopefully he does a better job, but let me go through a few of the things. Critics have alleged that in a 1959 law review article, you advocated expanding the law to provide for criminal penalties for interracial marriages, and that you advised the Mississippi Legislature how to amend their laws to continue penalizing interracial marriages. Now, Judge Pickering, I would like to ask you some questions about the miscegenation note that you authored while you were a law student at the University of Mississippi. You wrote that article at issue in 1959, more than 40 years ago, right? Judge Pickering. That is correct. Senator Hatch. Now, some have alleged in this article that you condemned Mississippi's miscegenation law. In the article, did you condone or advocate a ban on interracial marriage? Judge Pickering. No. My perception was that this was an academic exercise of analyzing the law. I stated what was wrong with it. I did not consider that I advocated it at all. But regardless of that article, I do not feel--and I have stated this at the third hearing--I agree that who one marries is a personal matter and States should not regulate it. That is a personal feeling. I believe it is unconstitutional and I will follow it. Senator Hatch. In 1967, the Supreme Court decided the case of Loving v. Virginia. You are familiar with that case---- Judge Pickering. Yes, I am. Senator Hatch [continuing]. Which held that State law bans on interracial marriage are unconstitutional. Judge Pickering. That is correct. Senator Hatch. Now, if you are confirmed, will you strictly adhere to that precedent? Judge Pickering. Absolutely. Senator Hatch. I knew that was your answer, but I thought we had better clarify that. On the Voting Rights Act, Judge, your critics are the usual suspects in this town. And by the way, I didn't criticize any of my colleagues. It was criticizing the leftist groups who are here in Washington, who come into these matters almost every time they don't like somebody and I think distort records. Now, your critics would have people believe that you are singlehandedly bringing down the Voting Rights Act. I have looked at the cases that have been raised to suggest that you are against voting rights. I think there are three, to be fair--Fairley v. Forrest County, Bryant v. Lawrence County, and Citizens Rights to Vote v. Morgan. Your critics seem to have a penchant for misquoting you or quoting you out of context, but the thing that is most striking about questioning you on these cases is that none of them were appealed. Am I right on that? Judge Pickering. None of them were appealed. Senator Hatch. The usual suspects always seem to leave that information out of their statements. In fact, the plaintiff in Fairley and the NAACP chapter leader involved in that case have both written Chairman Leahy in support of your nomination. Is that right? Judge Pickering. Yes, sir, they have. Senator Hatch. They say, Judge, that you should always leave the customer satisfied. You seem to be leaving the losing party satisfied. Judge Pickering. In the Lawrence County case, I would point out, Senator, that that was a case in which I ordered redistricting to create a majority justice court district. Senator Hatch. Well, I was most interested in Bryant because I think in that case you displayed a genuine concern for racial reconciliation and a real desire to further the goals of the Voting Rights Act. You wrote that, quote, ``Constitutional guarantees of equality should bring us together, not divide us,'' unquote. That is right, isn't it? Judge Pickering. After I heard the evidence, I also appointed a bi-racial Committee from the parties that were there, and they got together and tried to resolve the matters so that I didn't have to make a decision on the situation, so that they could work it out. Senator Hatch. Mr. Chairman, I would like to submit the rather exceptional letter of the plaintiff in the Fairly case, Mr. Donnie Lee Fairley, supporting Judge Pickering's nomination--I would like to put that in the record. The Chairman [Presiding.] Without objection, that will be made part of the record. Senator Hatch. Thank you, Mr. Chairman. Senator Hatch. Now, Judge Pickering, some have alleged that you are hostile to civil rights. However, I am aware that you have taken actions over the past four decades that express your commitment to civil rights. There is an old saying that actions speak louder than words, and I would like to ask you about some specific instances that illustrate your support for civil rights. You were chairman of the Mississippi Republican Party from 1976 to 1978. In response to Senator Specter, you had mentioned that you were responsible for hiring the first African-American political worker ever in the Mississippi Republican Party. Judge Pickering. Yes, sir. Senator Hatch. In fact, the Committee has received a letter from this gentleman, whose name is James King, who appeared here today and I think is sitting right over here. In his letter, Mr. King explained that when you hired him, you were adamant that his work not be confined to the African-American population of the State. Mr. King stated, quote, ``Chairman Pickering could have enhanced his personal standing with the group by allowing us to believe that he agreed with our approach to targeting an African-American to the African-American community only. But instead he made the point of reminding us that the party's message was to be the same to both communities, and if the message was the same, it could be delivered by the same individual. I can unequivocally state from my personal knowledge and 25 years of knowing Judge Charles Pickering that he is not a racist, and I believe him to be eminently qualified for a seat on the Fifth Circuit.'' Could you tell us a little bit about your decision to hire Mr. King? Judge Pickering. Well, I have always thought that the races should be brought together, not divided and not polarized, and there are so many things that do polarize us. I was attempting to build bridges and to give dialog to where African-Americans and whites could discuss their common problems and come to common consensus, and that was--I felt like it was the right thing for the Republican Party to do and---- Senator Hatch. It was. I understand that in 2000 you joined with an African- American businessman to convene a group in Laurel to develop a program for at-risk kids, particularly African-Americans. Judge Pickering. We did. I had supported the Boys and Girls Club during its existence, although I was not an officer in the group. They ran into some problems that caused the Boys and Girls Club to be terminated, and I had always regretted that. And Mr. Walker and I were having dinner together one night and we sort of made a commitment to one another that we would try to get some group together. We thought we were going to be bringing back a Boys and Girls Club, but we wound out where we worked trying to find something that we dubbed Kids at Risk rather than a Boys and Girls Club. Senator Hatch. Well, I notice that my time is up, but I want to commend you. You have from the American Bar Association a ``well qualified'' rating, which is the highest rating they give, by a majority of the Committee, and a ``qualified'' rating by the rest of them. And they do investigate rather thoroughly nominees before this Committee, and we expect them to. All I can say is that having looked at your record and knowing what you have stood for all these years, I just hope our colleagues will all recognize that and vote for you. I just want to commend you for being the good judge that you really are, and I think that you could do a great job on Fifth Circuit Court of Appeals and I believe you will do a great job and I believe you will be confirmed. Thank you, Mr. Chairman. Judge Pickering. Thank you, Senator. Chairman Leahy. I will just note for the record, Judge Pickering, I am glad that the Justice Department would give you those documents during our break. I had asked them to. Senator Hatch. Yes, I think that is right. Chairman Leahy. They only gave them to us. I wasn't sure whether Senator Hatch was aware of that. It was at my request, but we had only received them severely redacted just minutes before this. I assumed they had given them to you before. It is only fair that you should have them, and I am not quite sure why the Justice Department seems unwilling, even with the heavily redacted ones, to make them part of the permanent record. But I will ask them again if they could be made part of the permanent record. And if indeed they will agree to allow the heavily redacted material to be available, I assume there would be no objection then to making them part of the record. Senator Hatch. Mr. Chairman, I want to compliment you for that. Frankly, I appreciate the things you are trying to do. If I could just make one comment, that is why I went over this because, yes, it was an ex parte conversation, but you didn't consider it an ex parte conversation that violated the judicial canon, and certainly the Government did not benefit from it. Judge Pickering. Yes, that is correct. Senator Hatch. Neither party benefited from it. You were just expressing your frustration, and I have to say that I am aware of a lot of judges who have done that. I think some people may try and blow that out of proportion, but I don't think they should. Chairman Leahy. I don't know if there will be others who will be questioning, but let me just wrap up a few things of mine. In Washington v. Hargett, you rejected the plaintiff's request for DNA testing that he said would prove his actual innocence. But in that, you stated that an attempt to prove actual innocence was, quote, ``the only reason why this court or any other Federal court should be considering a petition for habeas corpus.'' I mention that because you have stated in answer to my questions, Senator Hatch's questions, and several others that, of course, you would have to follow stare decisis, in your case the Fifth Circuit or the Supreme Court. I say that because your statement is contrary to the Supreme Court law and statutory law, which says that a prisoner petitioning for a writ of habeas corpus is contesting the legality of his detention, not his guilt or innocence. The Supreme Court said that 2 years before you decided that particular case. Based on the Herrera case, Federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact. In Drennon v. Hargett, you presided over a case in which a habeas corpus petitioner claimed that he had been denied access to the courts and received ineffective assistance of counsel. He had pled guilty to a charge of capital murder at the age of 15 and received a life sentence. But he claimed in his petition that his attorney had threatened him with the gas chamber if he did not plead guilty, and his lawyer did not make important motions, such as a motion to suppress under Miranda, and so on. He also claimed that he did not know how to obtain relief in the courts for several years because his representatives had misled him. You denied his claim. You wrote 3 pages of a 9-page opinion arguing that habeas corpus should not be allowed unless a petitioner can prove actual innocence. You cited the Ninth and Tenth Amendments, the Preamble to the Constitution, and the Declaration of Independence in support of your views. In Barnes v. Mississippi Department of Corrections, you 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 3 days before being given an initial hearing by a magistrate. You denied that petition, and the Fifth Circuit again overruled you. You stated in that case 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. You cited the Bible and Cook's treatise to make the point that habeas corpus should be limited to petitioners who can prove actual innocence. I cite that because it seems to go in each of those cases contrary to the Supreme Court, and that is why you were overruled. Have I missed the point there? Let me ask you this: What do you feel is the standard for granting habeas? Judge Pickering. Well, of course, the Congress has passed a law and they have established the standard by which we are to consider habeas. The decisions that you are quoting, I think, were all decided before Congress passed the law. And as I indicated, I think, Senator Leahy, that the statements that you mention--that I think that I said 10, 15 years or 14 or 15 years after a trial is over, that it really creates all kind of problems on the system to have to go back and re-try cases, when the prosecutors might have changed, the law enforcement officers have changed, witnesses are dead. It just makes it almost impossible. And I think what I indicated that I felt it would be a better question, if it is that far out, that you should only be considering questions of guilt or innocence. Now, I did not say that I was going to apply that, and I think that I attempted to apply in those cases the law as I understood it from the courts. And, of course, since that time Congress has came down and said the statute of limitations is 1 year. Chairman Leahy. But in Hargett, you were talking about the only reason why this court or any other Federal court should be considering a petition for habeas corpus was for actual innocence. But that is not the Supreme Court---- Judge Pickering. The Supreme Court decided it differently and I was acknowledging that it was sort of like---- Chairman Leahy. Prior to that, prior to that. Judge Pickering. Yes, sir. Sort of like in ERISA, I was saying that I think this is an area where they should be limited to questions of innocence this far down the road. But I attempted to apply, as best I understood the law, the controlling law, not what I felt about the situation. Chairman Leahy. I appreciate that. I spent nearly 9 years as a prosecutor and the last thing in the world I wanted to do is have to re-try a case 10 years later---- Judge Pickering. That was what I was talking about. The Chairman [continuing]. Because it was very, very difficult to do. Judge Pickering. Yes. Chairman Leahy. The witnesses are gone and everything else. But the thing I would hate even more than to have to try a case 10 years later is to think I had somebody locked up who was innocent. Judge Pickering. Well, absolutely, and I said that. In fact, I would today--I don't care whether it passed the 1-year statute of limitation, if you had an innocent person. And I suspect that the courts when they get around to interpreting that 1-year statute of limitations, if you come with an actual innocence claim, that they will find some way to keep from being barred by the 1-year statute of limitations. Chairman Leahy. But there are other reasons for having habeas than just to prove actual innocence, are there not? Judge Pickering. Oh, sure, yes, sir. But what I was talking about was the length of time, 14 and 15 years later. Chairman Leahy. That was a DNA case, and DNA testing has exonerated nearly 100 people. Eleven people were on death row. They had been sentenced and they were way beyond the normal appellate time. They were sentenced to die, and then DNA evidence came out that had not been available and proved they had the wrong person. In Illinois, with something like half the people they had on death row, they found they had the wrong person. In one case, they had the right person locked up somewhere else, but they were about to execute the wrong person. I just mention that because it is an area that I was concerned about. Judge Pickering. Senator, on DNA, I feel very strongly that if you create a situation where there is an indication that DNA could likely prove somebody innocent that they should be given that opportunity. In the case that you are talking about, there was no--my recollection of that case is that I found there was no indication that--he was claiming an expert witness proved that he was likely not guilty, but that was not my interpretation of that expert witness' testimony. In fact, the expert witness seemed to me to implicate him more than he did to indicate that he was innocent. But I agree with you. DNA is a marvelous--and I had rather the guilty go free than having an innocent person convicted. I totally agree with that. Chairman Leahy. Thank you. Judge Pickering, you have been here a long time. As I said, the questions I have asked you have been on the cases that I notified the Justice Department I would be asking about. I do not feel, as some Senators on this Committee, that it is somehow inappropriate to ask a nominee questions, especially one who is already holding a lifetime position on the Federal bench, as you are, because of the nature of where you are going. I hope you don't think it has been inappropriate to ask you questions. I am sure the Chair will leave the record open so that you can take a look at your answers, should you wish to add to them or change them. We do want to be fair. I will not use all my time, Madam Chair, but I also want to mention I have been on this Committee now--I hate to even say this--for over a quarter of a century. Nobody has held a hearing with more fairness to both sides than you have, and I appreciate that. Senator Feinstein [presiding.] Thank you very much. Thank you, Mr. Chairman. Senator Kyl, you are next up. STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA Senator Kyl. Madam Chairman, I had no other questions. I would like, though, to comment on what Senator Leahy just said because he and I had a conversation about it earlier. In some comments I made earlier, I lamented the tone of questions. As the chairman of the Committee knows, I certainly don't think there is anything wrong with asking questions, and I think I made that clear in my comments. But I did have concern with the tone of some of the questions--neither of the two majority members who are here right now. But I hope that my comments aren't misunderstood in that regard. Thank you. Senator Feinstein. Thank you, Senator. Senator Sessions? STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator Sessions. Thank you, Madam Chairman. There were a number of things I think we just should mention. I know you are deeply concerned about the right to abortion, and deeply committed to the Roe v. Wade decision. A lot of people didn't agree at that time. The now-Minority Leader of the House of Representatives, Dick Gephardt, in 1976 stated--when were you making these comments about a constitutional amendment? Judge Pickering. 1976, I believe. Senator Sessions. 1976. Well, in 1976 he said, ``In the case of an issue so basic to our society as the right to life, a constitutional amendment is necessary to clarify our belief in due process and the sanctity of life.'' His press release stated at that time that he would sponsor and work for a constitutional amendment to prohibit abortion. Al Gore wrote, ``I strongly oppose Federal funding of abortions. It is my deep personal conviction that it is wrong.'' Others have said the same thing over the years. Certainly, favoring a constitutional amendment is not a suggestion that you don't follow the rule of law. That is the rule of law. If you disagree with a Supreme Court decision, if somebody thinks it is in error or should be corrected, you do it by a constitutional amendment, not by violating a Supreme Court ruling. Isn't that correct? Judge Pickering. Senator Sessions, I believe very strongly in the adage that we are a Government of laws, not of men, and I greatly respect the rule of law. If we don't do that, then there is no way, in my opinion, that we can render effective justice. We have got to follow the rule of law. Senator Sessions. In the comments, you were asked why you bothered to ask the Sovereignty Commission about the union violence there that had occurred in your neighborhood in a casual meeting, a chance meeting, it appeared. I would just offer this for the record. Charles Harrison, the first African-American hired in the Laurel, Mississippi Police Department in the 1960's, wrote in support of your nomination and said this, quote, ``Klansmen had committed violent acts, including murder, at the Masonite pulpwood plant. County Attorney Charles Pickering helped investigate the Klan and signed an affidavit to indict Dubie Lee, a Klansman, for a murder at that Masonite plant. Charles Pickering worked with the FBI to investigate and prosecute violent KKK members, and even testified against the Imperial Wizard of the KKK, Sam Bowers. He put his, his wife's, and his children's lives at risk by doing this. If any person would have mentioned union activity to me that affected Jones County, I would have asked about it, too, as would anyone who knew the violent history of unions at the Masonite plant. That would have had nothing to do with segregation. It would have had to do with protecting people, black and white, from violence. In the end, the Sovereignty Commission''--and I am quoting this letter from this African-American--``In the end, the Sovereignty Commission allegations only prove that Charles Pickering fought against the Klan and for the people of Jones County.'' I think that pretty well says it all, and I know you would appreciate that being made a part of the record, which I will do. As a former United States Attorney, I think judges sometimes think they have a right to complain about prosecutors. They work for the Government. You hold United States Attorneys and Assistant United States Attorneys, most judges do, to a higher standard, don't you, Judge Pickering? Judge Pickering. I do. Senator Sessions. In my 12 years as United States Attorney, I have had a number of occasions when Federal judges say I think this assistant did the wrong thing; I think you were incorrect in this, or I don't know why you sought to bring that case. Maybe, technically, that is not the best way to do things, but it gets some feedback from the courtroom and I think in the long run it is helpful. I know you were concerned about this disparity of sentences, seeing a person who had fired in the house of this interracial couple with a gun. Let me ask you, did you know at the time that that person pled to a misdemeanor and probation, that he had fired a gun into the house? Judge Pickering. I did not, not at the time that the plea was taken. Senator Sessions. Did the Government attorneys know that at that time, or do you know? Judge Pickering. I am not sure whether they did or did not. I have reviewed some records that indicate to me that they should have. Senator Sessions. But it would strike me that it would be a colossal error and really a breach of ethics for a prosecutor to withhold that from a judge, as you evaluate what kind of a sentence to make, if they knew it at that time. Judge Pickering. Well, of course, I had that information at the time I did the sentencing. When I did not have it was when they took the plea. Senator Sessions. When you accepted the plea---- Judge Pickering. Yes. Senator Sessions [continuing]. Under the recommendation? Judge Pickering. Well, the Government brought--they called, as I recall, and this has been several years back. It is difficult for me to remember what happened last month. Senator Sessions. I know. Judge Pickering. But this was at least 5 or 6 years ago. My recollection is the case was scheduled for trial and they called and said can we come down. And they came down fairly late one afternoon and said we want to have this defendant enter a plea of guilty. And they indicated the reasons why they thought it was an appropriate sentence--or appropriate plea, and I took it. That is my recollection. Senator Sessions. Well, I don't believe that---- Judge Pickering. They did not mention that he had shot into the house before I took the plea, not to my recollection. Senator Sessions. Madam Chairman, I thank you for allowing Judge Pickering to have a chance to respond to these charges. I think he has responded to each and every one of them. I believe, as the five Mississippi people who came here with him on his behalf, three of whom are African-Americans prominent in their communities, they said he has been one of the good guys. They said from the beginning he has been on the right side. He has stood up when it was not popular against violence and against the Klan, and to have him now accused of misconduct is odd. One of the lawyers, a plaintiff's lawyer, said he is a populist judge, he is for the little man; he consistently rules for the little guy, and that is who I represent, he told me. Everybody knew he was a man of integrity. When he saw something in this cross burning case that didn't strike him as right, it offended his sense of right and wrong. And I believe Judge Pickering has a sense of right and wrong that is important in a judge to be successful. I just believe that his record is good on that. Judge Pickering, I know a lot of people have their children in private schools. Did your children go to public or private schools? Judge Pickering. My young daughters--the first year that they paired schools, which meant that they would be going to a majority-black school; it was a previously all-black school-- they went to the previously black school and that is where they got their education. We stayed with the public schools. We helped integrate the public schools. And as I have indicated, we had contact with African-American children and we encouraged our children to do that. Senator Sessions. Well, I think that is just another example of setting a good example in your community, of being the kind of community person that brought people together rather than setting them apart. I believe you deserve recognition and credit for that, for a really terrific career, and I thank you for your fine testimony. I think the problem at this point is not going to be with you, Judge Pickering. It is going to be with the people on this Committee. They will have to wrestle with their conscience, and I think if they don't allow the political hubbub to overcome good judgment, you will be in good shape. Thank you. Judge Pickering. Thank you, Senator. Senator Feinstein. Thank you, Senator. It has been a long afternoon, Judge Pickering, but the ranking member has prevailed on me to have a brief--how many seconds? Senator Hatch. Fairly short. Senator Feinstein. And admitting to his seniority and his perspicacity---- Senator Hatch. And friendship. Senator Hatch [continuing]. And friendship---- Senator Hatch. And care and love. Senator Feinstein. How about 120 seconds? That is 2 minutes. Senator Hatch. Let me see what I can do. I don't think I can get it in 2 minutes, but I will try to be very short. I just wanted to close. I personally wanted to thank Madam Chairwoman for conducting a fair hearing. She is fair, and she is a decent and wonderful Senator as far as I am concerned and I have certainly appreciated having her on this Committee. Now, don't count that in my time. [Laughter.] Senator Hatch. I would just like to make the following observation, if I may. We have heard a lot today about Judge Pickering's record with respect to the Swan case and I would like to just make one closing comment on that. Basically, I want everybody here to listen to this and really hear this. You have already mentioned some of this in your earlier testimony, but I think it really is important. I would just like to read an excerpt of your comments during the sentencing phase of Mr. Swan's case. At the sentencing hearing on August 15, 1994, you stated, quote, ``This is conduct that is reprehensible. It cannot, it will not be tolerated, and your views on racial or interracial marriages or those of anybody else involved is completely immaterial. You just cannot intimidate people in their homes,'' unquote. Then again at the November 15, 1994, sentencing hearing you described a cross burning as a, quote, ``heinous crime,'' unquote, and stated, quote, ``If you interpret it that I think it is all right to have prejudice that manifests itself in burning crosses, that is incorrect. I think it was just as reprehensible in the Lee case and I think it was reprehensible in this case, and I think the defendant has got to pay a debt to society for a reprehensible crime that he committed. And nobody made him get drunk and go do what he did that night. He did that,'' unquote. Then at the January 23, 1995, sentencing hearing you reiterated your position by saying, quote, ``You are going to the penitentiary because of what you did. And it is an area that we have got to stamp out, that we have got to learn to live races among each other. And the type of conduct that you exhibited cannot and will not be tolerated. You did that which does hinder good race relations and was a despicable act. I would suggest to you that during the time that you are in the prison that you do some reading on race relations and maintaining good race relations and how that can be done,'' unquote. I personally appreciate you and appreciate those comments. I know that that is what you truly believe, and I believe you will make a great judge. I want to thank our chairwoman here today for the excellent way she has conducted these hearings. Senator Feinstein. Thanks, Senator Hatch. We will keep the record open for additional questions or statements for 1 week. Judge Pickering, you are free to submit any material for the record that you would like to. In any way that you would wish to more fully address the questions, you certainly have that opportunity. I want to thank you and I want to thank everyone. This hearing is adjourned. Judge Pickering. Thank you, Madam Chairman. 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Charles E. Grassley, a U.S. Senator from the State of Iowa I'd like to welcome Judge Pickering to the Judiciary Committee this afternoon. I just want to make a few comments. It's important that we have these hearings to make sure that the individuals that are confirmed to the federal bench are not just highly qualified, experienced legal minds. But we want to ensure that they will follow the rule of law--that is, the intent of the Constitution and the statutes ratified and enacted by the people--regardless of what their personal beliefs might be. We need to make sure that these individuals, lifetime appointments, clearly understand their role in the third branch of government, which is to interpret the law rather than create it. So we should ask questions of these nominees to determine that they will do just that. Now a number of groups have criticized Judge Pickering's record. But I'm not aware that any of these allegations have been substantiated. In fact, Judge Pickering has received a number of letters countering these allegations. There doesn't seem to be a dispute that Judge Pickering has been fine District Court judge. And remember, he's already successfully gone through the Senate review process once before. Unfortunately, I believe that some of these critics have a political agenda. they seem to be requesting us to use their own organizations' agendas as a litmus test as to whether Congress should vote to confirm or reject a judicial nominee. That's just plain wrong. Whether an individual has been nominated by a Democratic or Republican President, I've consistently applied the same criteria in my decision to vote for or against a nominee: does the individual have the requisite intellect, knowledge, integrity, judicial temperament and philosophy to serve on the federal bench? And most of all, will the nominee follow the law rather than legislate from the bench? I've followed this rule regardless of the judicial nominee's own beliefs. For example, a number of President Clinton's nominees served on associations and organizations, or had actively participated in litigation involving taking positions that I may not have agreed with. I voted to confirm the vast majority of those individuals because I believed that they could do the job, notwithstanding those positions or beliefs. I haven't allowed differences in one's own beliefs to be the litmus test in evaluating whether a judicial nomination should or should not be confirmed. Instead we should be confirmed. Instead we should be looking at the nominee's ability to follow and respect the rule of law. I'll continue to do that in regard to Judge Pickering. I hope my colleagues on this Committee will apply the same objective criteria.
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