[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.
____________________