[Congressional Record Volume 148, Number 30 (Friday, March 15, 2002)]
[Senate]
[Pages S1965-S1967]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  NOMINATION OF CHARLES PICKERING, SR.

  Mr. HATCH. Mr. President, I rise today to express my deepest-felt 
disappointment in the decision of the Judiciary Committee yesterday 
against the nomination of Judge Charles Pickering, a jurist of the 
highest character and proven dedication to public service.
  Mr. President, I will not repeat my defense of Judge Pickering's 
record, which I addressed here yesterday.
  There are particular reasons why I am disappointed and saddened. 
First, certainly, is the unfairness with which the Judiciary Committee 
treated Judge Pickering's record.
  I feel awful for Judge Pickering and his family for the way that the 
special interest groups and the liberal activists have distorted his 
record.
  It has come to the point that men and women who put themselves up for 
public service and the Senate confirmation process are heroes, willing 
to sacrifice their good name and peace of mind.
  I also feel terribly for the people of Mississippi, and about what 
this decision says to them after the long distance they have traveled 
to correct past wrongs. I feel terribly for the African Americans from 
Mississippi who stood by Judge Pickering, at risk to their own 
reputations.
  Opponents have made much of the meager 26 reversals that Judge 
Pickering has had, an attempt to open old and painful wounds by using 
the all-too familiar race card and suggesting that Judge Pickering has 
a poor record in civil rights cases.
  They claim that Judge has a poor record on voting rights. In fact, he 
has had only four voting rights cases--only four--and he has been 
appealed on the merits in none of them. My staff has counted almost 200 
decisions, and there may be more, in which Judge Pickering has applied 
the various civil rights laws of the United States with neither an 
appeal nor a reversal.
  Opponents sought desperately to find aggrieved litigants with an ax 
to grind. They have found almost none. That is amazing for somebody who 
is in the Federal and State courts for much of a legal career. The 
African American parties who were involved in one of the four voting 
rights cases have even written to support the confirmation of Judge 
Pickering--the same judge who ruled against them.
  Many of my colleagues are lawyers. They know full well, as did these 
African American parties who support Judge Pickering that just ruling 
one way or another in a case does not mean you are against the 
underlying law. With this, does it mean that every judge who has 
overturned a drug sentence is pro-drugs? Obviously not. We all know 
better than that.
  The judge's record is clear and distinguished. But I venture to say 
that the opponents of Judge Pickering are not interested in 
accentuating the positive record, to say the least. It is not 
politically expedient to do so.
  Take the case of little Jeffrey Hill. His parents believed that their 
son was entitled to receive a free appropriate education under the 
Individuals with Disabilities Education Act.
  Jeffrey's parents sued and stood alone against the State of 
Mississippi. Judge Pickering, as he has done in cases involving 
homosexuals, African-Americans and others, appropriately found that the 
law in that case required Mississippi to educate handicapped children. 
Judge Pickering gave little Jeffrey Hill his day in court. He ruled on 
the law.
  Yesterday Senators on the Judiciary Committee received a letter from 
three dozen members of the House of Representatives, including the 
former chairman of the House Judiciary Committee, Mr. Hyde.
  House Members asked that the Judiciary Committee repudiate extreme 
liberal, left-of-mainstream special interest groups that have raised 
Judge Pickering's religious views as an issue, going so far as to 
attack Judge Pickering for a speech he gave on the Bible when he was 
president of the Mississippi Southern Baptist Convention.
  I ask unanimous consent that the House letter be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                   Republican Study Committee,

                                   Washington, DC, March 13, 2002.

  House Members Urge Senators To Repudiate Religious Tests for Judges

Outside Groups Attempting to Create a Religious Test in Order to Defeat 
                   the Nomination of Judge Pickering

       Washington, D.C.--Over three dozen Members of the House of 
     Representatives today sent a letter to Members of the Senate 
     Judiciary Committee asking them to repudiate attempts by 
     groups such as the People for the American Way to establish a 
     defacto religious test preventing persons of faith from 
     serving as federal judges.
       Rep. Walter Jones (R-NC), stated, ``In their campaign 
     against the nomination of Judge Charles Pickering to the 
     Court of Appeals, a number of outside interest groups have 
     asserted that Judge Pickering is unfit because he `promotes 
     religion from the bench.' A close examination of these 
     allegations and Judge Pickering's record clearly indicate 
     that what opponents of his nomination are really objecting to 
     is the fact Judge Pickering is personally a man of religious 
     faith.''
       Rep. Joe Pitts (R-PA) added, ``The failure of the Senate 
     Democrats to repudiate the charge that Judge Pickering is 
     unfit for the Judiciary because of his religious faith sends 
     a very clear message: `So long as Democrats control the 
     Senate, religious people will be prohibited from serving as 
     judges.' ''
       The text of the letter sent to Senate Judiciary Committee 
     Members is reset on the next page:


[[Page S1966]]


                                                   March 13, 2002.
     Members of the Senate Judiciary
     Committee.
       Dear Senators: We write to express our grave concern 
     regarding the attempts by some organizations to have the 
     Senate impose what amounts to a religious test on judicial 
     nominees. As you are aware, Article VI of the Constitution 
     specifically forbids the imposition of a religious test.
       Groups such as People for the American Way have been 
     leading a campaign in opposition to the nomination of Judge 
     Charles Pickering to the U.S. Court of Appeals for the 5th 
     Circuit. Opponents of Judge Pickering have argued that he is 
     unfit because he ``promotes religion from the bench.'' In 
     support of this charge opponents cite a speech Judge 
     Pickering delivered in 1984 when he was President of the 
     Mississippi Baptist Convention and comments made by Judge 
     Pickering from the bench referencing biblical principles and 
     other religious literature.
       Judge Pickering has made clear that he will follow the law 
     and not his particular religious beliefs in the exercise of 
     his judicial duties. Indeed, his record over the past decade 
     as a District Judge clearly indicates that he practiced in 
     the best traditions of the U.S. judicial system, even when 
     making reference to religious literature. Indeed, Chief 
     Justice Earl Warren, Justice Thurgood Marshall, and Justice 
     William Brennan have all made explicit references to the 
     Bible or biblical principles when delivering the opinion of 
     the Supreme Court in cases covering such disparate issues as 
     the Fifth Amendment right against self-incrimination, and the 
     forfeiture and seizure of vessels used for unlawful purposes.
       Many of those opposing Judge Pickering's nomination are in 
     effect arguing that a religious person is unqualified to 
     serve in the federal judiciary because he cannot be trusted 
     to separate his personal religious beliefs from his official 
     duties. This is nothing more than a religious test barring 
     any person of faith from holding a judicial office.
       We request that you join us in publicly repudiating those 
     who argue that people of faith are unsuited for the federal 
     judiciary. Such arguments run counter to our Constitution and 
     the best practices of the American judiciary.
           Sincerely,
         Walter Jones, Henry Hyde, Frank Wolf, J.C. Watts, Ernie 
           Fletcher, Ed Whitfield, John Hostettler, John Cooksey, 
           Henry Brown, Charles Taylor, Joe Pitts, Virgil Goode, 
           Dave Weldon, Chris Cox, Steve Chabot, John Shadegg, 
           Pete Hoekstra, Jeff Flake, Sue Myrick, Mike Pence.
         John Sullivan, Todd Tiahrt, John Doolittle, Melissa Hart, 
           Jim DeMint, Bob Schaffer, Robert Aderholt, Todd Akin, 
           Kevin Brady, David Vitter, Jo Ann Davis, Bob Barr, Joe 
           Barton, Chris Cannon, Roscoe Bartlett, John Linder, Lee 
           Terry, John Shimkus, Tom Tancredo.

  Mr. HATCH. I think that is wrong. Being a member of the Church of 
Jesus Christ of the Latter Day Saints myself, the only church in the 
history of this Nation that had an extermination order out against it 
by the Governor of Missouri at the time, I fully understand terrible 
religious prejudice. So I decry anybody on the right, or anybody 
supporting Judge Pickering, calling Senator Leahy or any other Democrat 
or any other Member of this body, to criticize their religious 
perspective or view.
  But it certainly was wrong to criticize Judge Pickering's religion 
and his religious perspective. He is a religious, righteous man, the 
type of person you would want to have on the bench. And thank goodness 
he still will be on the bench in the district court, but he won't be 
able to lend his expertise and talents to the circuit court of appeals.
  I join with the concern expressed by my colleagues here and in the 
House, including Democrats. The fact that an impression has been 
created that the Senate Judiciary Committee would impose any test, 
whether a religious test or an abortion litmus test, concerns me 
greatly.
  Republicans refused to establish an abortion litmus test in either 
direction when we controlled this committee. We confirmed 377 of 
President Clinton's judicial nominees without imposing such a test.
  Maybe this has something to do with the make up of the Judiciary 
Committee: all the members on one side of the aisle share a single 
view, but on the Republican side, both views are welcomed.
  I might also add, I believe that underlying these attacks on 
conservative judicial nominees is the issue of abortion. If we had 
chosen to use that as a litmus test issue, President Clinton would have 
had very few judges confirmed. If that is going to be the rule, then 
that is a very bad thing and bad precedent to start. I was told by some 
of the outside groups that they do not believe anybody should serve on 
any court in this land who is not pro-abortion.
  That is an extreme view. Hopefully that view will never have that 
much influence on this body, but, unfortunately, I think it does have 
an influence. I will not ever agree that the Judiciary Committee or the 
Senate should exercise its advice and consent responsibility in a way 
that makes an absolutely lock-step demand that nominees think in a 
particular way on any single issue. Of course, as long as the Democrats 
are in the majority, I cannot stop them from doing so.

  But I can promise this: a decision to impose a litmus test will 
offend everyone in this country who understands and appreciates the 
rule of law, the independent judiciary, and the great tradition of 
debate and acceptance of diversity that have made our country the 
strong democracy it is today.
  Although some Senators on this committee prize diversity as a 
standard for the confirmation process. It concerns me that some 
people's definition of diversity includes only those with diverse skin 
color or ethnicity, and then only if they agree with their liberal 
views.
  Take Miguel Angel Estrada, who the President nominated 310 days ago, 
almost a year, Mr. President.
  Mr. Estrada, an immigrant from Honduras with a distinguished career, 
would be the first Hispanic on the prestigious Court of Appeals for the 
District of Columbia Circuit, and yet I read on the front page of the 
Wall Street Journal today that Democrats are gearing up to do to him 
what they did to Judge Pickering.
  He may be a minority, but he is the wrong kind of a minority, 
apparently, in the eyes of some of these people. I think that is awful.
  Clarence Thomas was a minority, but he was the wrong kind of a 
minority in the eyes of some of these people. That is awful.
  Diversity appears not to include intellectual diversity--diversity of 
personal viewpoints or religious conviction, that have nothing to do 
with ability to follow the law.
  Some of my Democrat colleagues have openly sought to introduce 
ideology into the judicial confirmation process, something which I 
repudiate. I am now concerned that the abortion litmus test would have 
the same effect as a religious test.

  Indeed, most people who are pro-choice hold their position as a 
matter of ideology. Some even allow their chosen ideology to trump the 
tenets of their religion. They do so in good conscience no doubt, and I 
respect that.
  But the great majority of people who are pro-life come to their 
positions as a result of their religious convictions. We view unborn 
life as sacred. We believe in the words of the Declaration of 
Independence that we are ``endowed by our Creator with certain 
inalienable rights'' and that among these is ``life.'' Many Americans 
hold this view as a religious tenet, but this view does not affect 
their ability to interpret the law and precedent, just as skin color 
does not.
  In effect, what is ideology to my Democrat friends is a matter of 
religious conviction to a large portion of the American people.
  When one Senator asked Judge Pickering about Roe versus Wade, Judge 
Pickering's response was unequivocally that he viewed it as the law of 
the land and would follow it as a judge, without regard to his private 
views. Surely, this should be enough. Otherwise, this will mean that no 
judges with private pro-life views, who derive these views from 
religious conviction, will ever again be confirmed in a Democrat-led 
Senate.
  To impose an abortion litmus test on private views--call it 
ideological if you want to--is to exclude from our judiciary a large 
number of people of religious conviction, who are perfectly prepared to 
follow the law.
  I fear this is the door this Democrat-led Senate could be opening. I 
can understand why people would believe that a religious test is being 
imposed.
  Certainly, as a former president of the Mississippi Southern Baptist 
Convention, Judge Pickering's nomination makes concern over a religious 
test understandable. The recorded attacks of the extreme left, special 
interest groups based on Judge Pickering's religious views are 
repugnant, and I do hope that my Democrat colleagues will indeed 
repudiate such tactics.

[[Page S1967]]

  Judge Pickering's record on the bench shows that he, in good faith, 
does understand the difference between the law and private views, and 
that he has followed the law regardless of personal beliefs.
  Judge Pickering has never had an abortion case during his 11 years on 
the bench, but he has ruled on cases in which the issue of sexual 
privacy was involved.
  Conveniently, opponents ignore Judge Pickering's record on gay 
issues. It is not surprising that Log Cabin Republicans, the largest, 
national gay Republican organization, recently issued a press release 
calling on this Committee to approve the nomination of Judge Pickering 
and to send it to the floor of the U.S. Senate.
  Let me quote from the release. According to Rich Tafel, the executive 
director of Log Cabin Republicans:

       Judge Pickering reiterated to me his strong belief that all 
     Americans should be treated equally under the law, including 
     gay and lesbian Americans, and his record as a federal judge 
     clearly demonstrates it.

  They go on to say:

       Among several cases he has heard, two key cases from 1991 
     and 1994 demonstrated Pickering has followed the principle of 
     equality under the law for gay Americans going back over a 
     decade.
       In 1991, Pickering sharply rebuked an attorney who tried to 
     use a plaintiff's homosexuality in a fraud trial. 
     ``Homosexuals are as much entitled to be protected from fraud 
     as any other human beings,'' Pickering instructed the jury. 
     ``The fact that the alleged victims in this case are 
     homosexuals shall not affect your verdict in any way 
     whatsoever.''
       In 1994, an anti-gay citizens group in the town of Ovett, 
     Mississippi launched a crusade of intimidation and threats to 
     drive out Camp Sister Spirit, a lesbian community being built 
     by a lesbian couple. When the group took Camp Sister Spirit 
     to court, Judge Pickering threw their case out.

  They go on:

       His civil rights record is long and distinguished. In 1967, 
     Judge Pickering testified for the prosecution in a criminal 
     hate-murder case against Ku Klux Klan Imperial Wizard Sam 
     Bowers in the death of an African American civil rights 
     worker. When Jones County, Mississippi schools were racially 
     integrated in the 1970's, Judge Pickering and his wife kept 
     their children in the public school system when other white 
     families removed their children. He was a featured speaker at 
     Mississippi NAACP meetings as far back as 1976, when he was 
     chairman of the Mississippi GOP.
       In 1981, he defended an African American man who was 
     falsely accused of robbing a white girl at knife point, 
     forcing the case to a second trial after a hung jury and an 
     eventual acquittal. In 1988, he convened and chaired a 
     bipartisan, biracial committee to promote better race 
     relations in Jones County, Mississippi.

  And then remarkably Tafel says:

       The judge who threw out the anti-Camp Sister Spirit case 
     and rebuked homophobia from the bench in the Deep South over 
     ten years ago deserves a promotion, not a rebuke.

  That is what Tafel said.
  I fear that the Judiciary Committee was not as fair to Judge 
Pickering's record. I am greatly disappointed and profoundly concerned 
for our country.
  What is now occurring is far beyond the mere tug-of-war politics that 
unfortunately surrounds Senate judicial confirmation since Robert Bork. 
My Democrat colleagues are out to effect a fundamental change in our 
constitutional system. Rather than seeking to determine the 
judiciousness of a nominee and whether a nominee will be able to rule 
on the law or the Constitution without personal bias, my Democrat 
colleagues are out to guarantee that our judges are in fact biased. And 
certainly no person who holds certain religious convictions need apply.
  In the America that the Senate Democrats would reshape, citizens will 
have to worry about the personal politics of the judge to whom they 
come for justice under the law.
  The legitimacy of our courts, and especially the Supreme Court, comes 
from much more than black robes and a high bench. It comes from the 
people's belief that judges and justices will apply a judicial 
philosophy without regard to personal politics or bias.
  What my Democrat colleagues are pursuing is an end to the 
independence of our judiciary with unforeseeable, unintended 
consequences to the strength of the Republic.
  Today is the Ides of March. I would call on my Senate colleagues to 
``Beware.'' The fight they started with Judge Pickering is one that 
others may end. I hope, however, to quote Shakespeare further, that 
they have not crossed the Rubicon, that the die is not cast.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________