Congressional Record, Volume 149 Issue 155 (Thursday, October 30, 2003)

[Congressional Record Volume 149, Number 155 (Thursday, October 30, 2003)]
[Senate]
[Pages S13556-S13572]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

(At the request of Mr. Daschle, the following statement was ordered
to be printed in the Record.)
Mr EDWARDS. Mr. President, I rise today to speak against the
nomination of Charles Pickering to the U.S. Court of Appeals for the
Fifth Circuit.
I oppose this nomination because Judge Pickering has repeatedly
demonstrated a disregard for the principles that protect the rights of
so many of our citizens. Judge Pickering's record as a judge is full of
instances in which he has elevated his personal views above the law.
For example, Judge Pickering has shown a lack of respect for the
Supreme Court's landmark

[[Page S13557]]

legal precedents, especially those that protect rights. He has harshly
criticized the Supreme Court's ``one person, one vote'' rulings and has
been reversed numerous times by the Fifth Circuit Court of Appeals for
his failure to follow ``well-settled principles of law.''
In one case, Judge Pickering took extraordinary steps to reduce the
sentence required by law for a man convicted of cross burning. In
addition, he exerted extraordinary efforts to reduce the 5-year
sentence mandated by Federal sentencing guidelines in the cross-burning
case and went so far as to make an ex parte phone call to Justice
Department officials in an attempt to assist the defendant.
And, since his hearing, Judge Pickering has actively solicited the
support of this nomination from attorneys who appear in his courtroom.
This behavior not only calls into question Judge Pickering's commitment
to protecting the constitutional rights of all Americans, but legal
experts agree that his actions violated the canons of judicial ethics.
Unfortunately, some of our colleagues on the other side of the aisle,
in their drive to push through every Bush judge at all costs, have
turned this process into a personal attack on the integrity and
motivations of those of us who oppose this nomination. We have been
accused of anti-Southern bias. Of course, anyone listening to me talk
would have to figure that I am the last person to hold an anti-Southern
bias.
We have even been accused of calling Judge Pickering a racist,
something we have not done. I do not presume to know what is in Judge
Pickering's heart. But I do know what is in his record. That record
proves him unfit to serve as a Court of Appeals judge.
We have tried our best to facilitate consensus and cooperation in
judicial nominations. Unfortunately, most of our efforts are being
rejected, which doesn't make a bit of sense, since we accomplish so
much when we all work together.
We have seen what happens when the President meets us halfway. He has
done it before--rarely, but he has done it. He reached out to us on
Allyson Duncan, an outstanding North Carolinian who just yesterday was
formally installed as a judge on the Fourth Circuit Court of Appeals,
breaking a logjam that had held our State back for a decade.
In that case, President Bush did more than just pay lip service to
our constitutional obligation to advise and consent. He reached out to
us before he made his decision. He consulted with us. He sought our
advice. And in making his decision, the President selected a nominee
who represents the mainstream of our State.
Throughout Judge Duncan's confirmation process, I commended the
President for consulting with us and making an excellent nomination.
And I told him that if he takes this approach to future judicial
nominations we have a real opportunity to find common ground in the
search for excellence on the federal bench. When we work together, we
find outstanding nominees like Allyson Duncan, who represents the best
of North Carolina and America.
But rather than accept my call for consensus, the President just said
no.
There is a saying that if you see a dog and a cat eating from the
same dish, it might look like a compromise, but you can bet they are
eating the cat's food. That is how things seem to be working in
Washington these days. My colleagues and I have tried and tried to find
common ground. We have said yes to Bush judges, time after time after
time. We have said yes to more than 160 Bush judges. But but my
colleagues on the other side of the aisle have instead dug in their
heels and demanded that unless we agree to every judicial nominee the
President sends up here, no matter how unacceptable they are, we are
being obstructionist.
We can do better than this. And we should do better. It is time for
this President to stop saying no to judges who respect our civil
rights. Let's say yes to judges who will fairly apply the law. Let's
say yes to judges who will not allow their extreme personal views to
color their decision-making. Let's say yes to judges who will protect
our civil rights. I am proud to stand with my colleagues today as we
say a resounding yes to fairness, equality and justice.
Ms. CANTWELL. Mr. President, Federal judges serve lifetime terms, and
are responsible for interpreting our Constitution, and our laws, in
ways that have real implications for the rights of regular Americans.
Last year I joined my colleagues on the Judiciary Committee in voting
not to report the nomination elevating Federal District Court Judge
Charles Pickering to the Circuit Court of Appeals to the Senate floor.
I stand by that vote. I continue to have very real concerns about Judge
Pickering's ability to be a fair and neutral Court of Appeals judge.
In evaluating judicial nominations, among the factors I consider are
whether the nominee demonstrates the highest level of professional
ethics and integrity, and has the ability to distinguish between
personal beliefs and interpreting the law. Unfortunately, I believe
Judge Pickering falls short in meeting these criteria. Judge Pickering
is an honorable person, but he is simply the wrong person to fill this
very important position.
Like my colleagues, I am troubled by Judge Pickering's handling of
the case of United States v. Swan, where a white defendant was tried
for burning a cross on the lawn of an interracial couple. Judge
Pickering had multiple ex parte conversations with prosecutors and
Justice Department officials in an effort to reduce the sentence of Mr.
Swan. In doing so, Judge Pickering seems to have lost sight of the
ethical limitations on his actions, and the extent to which he was
failing to maintain judicial independence. As Brenda Polkey, the victim
of the cross burning, said, her ``faith in the justice system was
destroyed'' by Pickering's efforts to reduce Mr. Swan's sentence. In
every aspect of government we need to work hard and keep faith with the
public.
This case indicates how deeply held Judge Pickering's views are, and
how far he will go to arrive at an outcome he believes to be correct.
The difficulty that he has in keeping his personal views out of his
judicial decisionmaking are obvious, not only in this case, but in
several opinions in which he goes beyond the facts of the case to state
his belief of what the law ought to be. Judge Pickering's efforts to
solicit letters of support from lawyers appearing before him in direct
violation of the canons of judicial ethics is another example of his
lack of understanding and adherence to the ethical guidelines that are
critical to maintaining the independence and integrity of the Federal
judiciary.
Because of this troubling record of not following precedent, and of
overstepping ethical bounds to achieve a particular outcome, I asked
Judge Pickering questions at his hearing that focused on the right to
privacy. I asked Judge Pickering about privacy as it pertains to
consumers' rights, specifically medical and financial records, as it
pertains to an individual's right to privacy in the context of
government surveillance, and with regard to a woman's right to make
personal decisions about her body. In response, he declined to state
whether he believed that any right to privacy was conferred by our
Constitution.
While my concern about how Judge Pickering would rule on cases of
fundamental privacy rights is not the only factor in my decision to
oppose his elevation to the Circuit Court, it is one I believe is
important.
The Fifth Circuit covers three States--Louisiana, Texas and
Mississippi--that have passed more anti-choice legislation restricting
a woman's right to make personal choices about her own body than any
other States. In fact, all three States continue to have
unconstitutional and unenforceable laws on their books prohibiting a
woman from having an abortion, because the legislature in each of these
States will not repeal the laws. This is the context against which we
must consider the President's nomination of Judge Pickering.
While Judge Pickering has repeatedly pledged to restrain his personal
ideological views and follow the precedent of the Supreme Court, given
the unique role that the Fifth Circuit plays in protecting not only the
constitutional right to privacy enunciated in Roe and affirmed in
Casey, but also in protecting women's access to abortion providers in
the States with the Fifth

[[Page S13558]]

Circuit, I am concerned about Judge Pickering's willingness to say
where in the Constitution privacy is protected and his willingness to
follow the law.
Judge Pickering's actions on the bench reveal a lack of understanding
of the requirements of judicial ethics and a failure to meet the very
highest standards of the legal profession. Judge Pickering has
exhibited a lack of ability to distinguish his personal believes from
judging the issues before the court, and I therefore cannot support his
elevation to the Fifth Circuit.
Mr. FEINGOLD. Mr. President, I will vote no on cloture on the
nomination of Charles Pickering to be a judge on the U.S. Court of
Appeals for the Fifth Circuit.
We had a fair process in the last Congress on this nominee--two
hearings, a lengthy period of deliberation and debate, and a fair vote.
The nomination was defeated. The Judiciary Committee's consideration of
this nomination was thorough and fair. Obviously, some did not like the
result, but I do not think they can in good faith find fault with the
process.
It is my view that a process that gives a nominee a hearing, and then
a vote in the Judiciary Committee is not an unfair process, or an
``institutional breakdown,'' as some critics of our work in the
committee last year called it. It is the way the Judiciary Committee is
supposed to work. During the 6 years prior to last Congress, the
Judiciary Committee did not work this way. Literally dozens of nominees
never got a hearing, as Charles Pickering did, and never got a vote, as
Charles Pickering did. Those nominees were mistreated by the committee;
Charles Pickering was not. What happened in the Judiciary Committee
last year provides no justification whatsoever for the President's
unprecedented action of renominating someone who has been considered by
the committee and rejected.
Judges on our Federal courts of appeals have an enormous influence on
the law. Whereas decisions of the district courts are always subject to
appellate review, the decisions of the courts of appeals are subject
only to discretionary review by the Supreme Court. Because the Supreme
Court agrees to hear only a very small percentage of the cases on which
its views are sought, the decisions of the courts of appeals are in
almost all cases final. That means that the scrutiny that we in the
Senate and on the committee give to circuit court nominees must be
greater than that we give to district court nominees.
I would think that this would be self-evident, and certainly the
debates over circuit court nominees over the years have been much more
heated than those relating to district court nominees. But I begin with
this point because there are some who have argued that because the
Senate confirmed Judge Pickering to the district court by a unanimous
vote in 1990, he must be elevated to the circuit court.
Judge Pickering now has a substantial record as a district court
judge that he did not have in 1990, and Senators are entitled--indeed
it is our duty--to review and evaluate that record. Even leaving that
aside, a court of appeals judgeship is different from a district court
judgeship.
There is another factor that I think requires us as a committee to
give this nomination very careful consideration. During the last 6
years of the Clinton administration, this committee did not report out
a single judge to the Fifth Circuit Court of Appeals. That is right.
Not a single one.
And as we all know, that was not for lack of nominees to consider.
President Clinton nominated three well-qualified lawyers to the Court
of Appeals--Jorge Rangel, Enrique Moreno, and Alston Johnson. None of
these nominees even received a hearing before this committee. When the
chairman held a hearing in July 2001 on the nomination of Judge Clement
for a seat on this circuit court, only a few months after she was
nominated, it was the first hearing for a Fifth Circuit nominee since
September 1994. We have since confirmed another Fifth Circuit nominee,
Edward Prado.
So there is a history here and a special burden on the administration
to consult with our side on nominees for this Circuit. Otherwise, we
would simply be rewarding the obstructionism that the President's party
engaged in over the last 6 years by allowing him to fill with his
choices seats that his party held open for years, even when qualified
nominees were advanced by President Clinton. And I say once again, my
colleagues on the Republican side bear some responsibility for this
situation, and they can help resolve it by urging the administration to
address the injustices suffered by so many Clinton nominees.
With that background, let me outline the concerns that have caused me
to reach the conclusion that Judge Pickering should not be confirmed.
Except for the DC Circuit, the Fifth Circuit has the largest percentage
of residents who are minorities of any circuit--over 40 percent. It is
a court that during the civil rights era issued some of the most
significant decisions supporting the rights of African American
citizens to participate as full members of our society. It is a circuit
where cases addressing the continuing problems of racism and
discrimination in our country will continue to arise.
Judge Pickering's record as a Federal district court judge leads me
to conclude that he does not have the dedication to upholding the civil
rights laws that I believe a judge on this circuit must have. Judge
Pickering has a disturbing habit of injecting his own personal opinions
about civil rights laws into his opinions and of criticizing plaintiffs
who seek through legal action to correct what they perceive to be
discriminatory conduct. In two separate opinions in unrelated
employment discrimination cases, Judge Pickering not only found against
the plaintiffs but saw fit to disparage their claims in identical
language. This is what he said:

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. . . . The Courts are not super
personnel managers charged with second guessing every
employment decision made regarding minorities. The Court
should protect against discrimination but it can do no more.
This case has all the hallmarks of a case that is filed
simply because an adverse employment decision was made in
regard to a protected minority.

The use of this kind of language as a boilerplate does not indicate
to me a judge who has an open mind about employment discrimination
lawsuits. I think that people who have legitimate claims under the
civil rights laws of this country have reason to be concerned about
whether a judge who would go out of his way to say these kinds of
things in legal opinions will hear their cases fairly.
Indeed, during his confirmation hearing, Judge Pickering seemed to
confirm that he has a predisposition to believe that employment
discrimination claims that come before him are not meritorious. He
testified that as he understands the law, the Equal Employment
Opportunity Commission ``engages in mediation and it is my impression
that most of the good cases are handled through mediation and are
resolved.'' He went on to say, ``The cases that come to court are
generally the ones that the EEOC has found are not good cases, so then
they are filed in court.'' That is emphatically not the law, and it was
extremely disturbing that a sitting federal judge who has ruled in
numerous employment discrimination cases would so profoundly
misunderstand the role of the EEOC in these cases.
Judge Pickering has also expressed troubling views in voting rights
cases, including criticizing the concept of ``one person, one vote.''
That concept is one of the bedrock constitutional foundations of our
political system. Judge Pickering opined in one case: ``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.'' I do
not believe that we can give the people too much democracy, and I am
not inclined to elevate to a higher court a judge who seems not to take
this constitutional principle seriously.
Another area of the law where Judge Pickering has demonstrated what
seems like a hostility to certain kinds of claims is that of prisoner
litigation. We all know that there is a significant problem of
frivolous lawsuits being filed by prisoners. Congress addressed this
problem in 1996 with the Prisoner Litigation Reform Act, where it
provided certain sanctions for prisoners who file repeated frivolous
claims. Judge Pickering, however, has taken

[[Page S13559]]

the law into his own hands on numerous occasions by threatening to
order prison officials to restrict prisoners' privileges if they filed
another frivolous lawsuit. And he did this even after Congress
specified certain sanctions for repeated frivolous lawsuits in the 1996
Act.
I believe that this kind of threat is inappropriate behavior for a
Federal judge. Judge Pickering's opinions could not help but chill even
legitimate complaints from prisoners. While it is true that much
frivolous litigation is filed by prisoners, it is also true that some
celebrated cases upholding and explaining the constitutional rights of
the accused have had their genesis in a prisoner complaint where the
prisoner did not have a lawyer. Gideon v. Wainwright, which established
the right to an attorney, was such a case. Just the day before Judge
Pickering's second hearing, the Washington Post ran a story about a
prisoner who received a favorable Supreme Court decision in a case that
began with such a complaint. And the petition for certiorari was filed
by the prisoner without a lawyer, as well. I believe that judges at all
levels must have an open mind toward all types of cases. Engaging in
tactics that will frighten people into not asserting their rights is a
highly questionable thing to do.
Judge Pickering did respond to my written questions about his
decisions in prisoner litigation. I was gratified to learn that he
never actually imposed the sanctions he threatened, and I appreciate
his and the Justice Department's efforts to find legal authority for
his orders. I find those efforts unconvincing, particularly with
respect to the orders that he entered after Congress passed the
Prisoner Litigation Reform Act. Judge Pickering states in answer to my
questions that ``[m]y objective was to stop prisoners who were filing
frivolous litigation from doing so,'' and that ``I do not believe that
legitimate complaints by prisoners were chilled by this approach.'' I
simply do not know how Judge Pickering could be so certain now, or when
he was making these orders, that threatening to order prison officials
to take away unspecified privileges if a prisoner filed another
frivolous complaint was a tactic that would discourage only frivolous
suits by prisoners, but not legitimate ones.
I also have concerns about two different ethical issues that arose
during the consideration of his confirmation. I questioned him about
one such issue at his second hearing before Judiciary Committee last
year. After his first hearing, Judge Pickering asked a number of
lawyers who practice before him to submit letters of recommendation. He
asked them to send those letters to his chambers so that he could fax
them to Washington. And he testified that he read the letters before
forwarding them to the Justice Department, which sent them on to the
committee. Now when I asked Judge Pickering about this, he seemed
confused by the questions, as if he thought I was objecting to the fact
that the letters had been faxed rather than mailed. Let me be clear, I
have no problem with faxes. I get them all the time. What I do have a
problem with is a sitting Federal judge asking lawyers who practice
before him to send letters supporting his nomination to a higher court
and having those letters sent to him rather than directly to the
Justice Department or the Senate. That seems to raise an obvious
ethical issue, and I was surprised that Judge Pickering didn't
recognize it, even when I questioned him about what he did.

I asked Professor Stephen Gillers of NYU Law School, one of the
leading experts on legal and judicial ethics in the country, for his
views on this issue. Professor Gillers responded in a letter to me. He
confirmed my concern about Judge Pickering's actions. Let me read a
portion of that letter. Professor Gillers wrote:

It was improper for Judge Pickering to solicit letters in
support of his nomination from lawyers who regularly appear
before him. It is important to my answer that the Judge asked
the lawyers to fax him the letters so that he could send them
to the Justice Department for transmittal to the Senate. He
did not ask the lawyers to send any letters directly to
Washington. Consequently, the Judge would know who submitted
letters and what the letters said, as would be obvious to the
lawyers.

Last year, Senator Hatch obtained a letter on this issue from a
professor Richard Painter. Professor Painter answers only the question
of whether soliciting letters of support violates existing rules of
judicial conduct and never mentions the additional fact that Judge
Pickering asked for the letters to be sent to him rather than to the
Senate. That makes Professor Painter's views much less relevant to the
questions I asked.
Furthermore, Professor Painter's analysis seems to be limited to an
effort to show that the authorities relied upon by Professor Gillers
are not exactly on point and that the standards governing the
solicitation of letters of support for nominations are vague. He argues
that the rules should be clarified and made more specific. And perhaps
he is right about that. But it seems to me to be an insufficiently low
standard to set that judges need only make sure they don't clearly
violate the ethical rules. We should not want judges who simply avoid
clear violations of rules of ethical conduct. We should not want judges
who either don't spot ethical issues or treat them as obstacles to be
parsed and tiptoed around. We should want judges who are beyond
reproach, who know that ethical conduct is at the core of their
responsibilities, because such conduct helps ensure that the public
will respect their decisions. I believe that Judge Pickering's conduct
fell far short in this instance.
Before this year's committee vote on Judge Pickering, some additional
information came to light on this matter that suggests that Judge
Pickering's conduct presents even more serious ethical questions. In
his response to my inquiry about Judge Pickering's solicitation of
letters of support, Prof. Gillers also noted the following:

The impropriety becomes particularly acute if lawyers or
litigants with matters currently pending before the Judge
were solicited. Then the desire to please the Judge would be
immediately obvious and the coercive nature of the request
even more apparent. In addition, soliciting favorable letters
from lawyers or litigants in current matters could lead to
recusal on the ground that the Judge's ``impartiality might
reasonably be questioned.'' 28 U.S.C. Sec. 455(a).

We identified 18 separate letters, all written in late October 2001,
that came to the committee from Judge Pickering's chambers. We now know
that at least seven of the lawyers who wrote letters on behalf of Judge
Pickering at his request actually had cases pending before him at the
time. A number of those lawyers had more than once case pending. One
lawyer received Judge Pickering's request for a letter when a
previously scheduled settlement conference was a little over a month
away. Another lawyer whom Judge Pickering solicited represented the
plaintiffs in a class action against a major drug company. The
defendant filed a motion to dismiss for lack of personal jurisdiction
in May 2001, and the motion was still pending before Judge Pickering
when he requested the letter.
Now I have to ask my colleagues: Suppose you were a lawyer in a case
and your opponents filed a motion trying to get your case dismissed.
The judge has not yet ruled on the motion and you get a call from him
asking you to write a letter of recommendation because he has been
nominated to serve on a higher court. What would you do? Wouldn't you
be troubled? Wouldn't you feel at least a bit of pressure to comply?
And would you write a fully candid letter, especially if the judge
asked you to send the letter to him directly so he could see it before
forwarding it to the Judiciary Committee?
I will submit for the Record a chart indicating the lawyers with
cases pending before Judge Pickering who wrote letters for him upon his
request. I consider this a very serious ethical breach, and Prof.
Gillers agrees. This violation of judicial ethics casts serious doubt
on Judge Pickering's fitness to serve on the Court of Appeals.
It is within this framework that I evaluate the other ethical issue
that has arisen, Judge Pickering's conduct in the Swan cross-burning
case. This case and Judge Pickering's handling of it have been the
subject of a great deal of controversy and public discussion, and I
will not repeat the details. I will only say that I am very troubled by
the Swan case, for a number of reasons. Judge Pickering, it seems to
me, improperly stepped out of his judicial role, to try to get a result
that he favored in the case. He had an ex parte

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contact with the Justice Department about the case. He threatened to
rule on a legal issue in a way that he apparently did not believe was
correct if the Justice Department did not change its sentencing
position. He twice told the Justice Department that he might order a
new trial even though it was clearly outside of his authority to do so.
And he took unusual and apparently unjustified steps to keep his order
secret, which prevented public scrutiny of his actions.
Judicial nominations should not be like legislation that can be
reintroduced and reconsidered by a succeeding Congress. The Senate,
acting through this committee, and exercising its constitutional
responsibility, refused to give its consent to this nomination last
year. I believe it was wrong for the President to re-nominate Judge
Pickering.
I do not believe Judge Pickering is a racist, nor do I believe that
he is a bad person. I did not come to this decision to vote against his
confirmation lightly or because of pressure from interest groups or
other Senators. I sincerely believe that Judge Pickering is not the
right choice for this position. I wish him well in his continued work
on the district court.
Mr. President, I ask unanimous consent to print in the Record the
letter to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:

New York University,

School of Law,

New York, NY, February 20, 2002.
Hon. Russell D. Feingold,
U.S. Senate,
Washington, DC.
Dear Senator Feingold: I am replying to your inquiry of
February 12, 2002. I assume familiarity with Judge
Pickering's testimony and will address the two questions you
ask. I address only these questions. I take no position on
whether Judge Pickering should be confirmed for the Fifth
Circuit or the weight, if any, that should be given to my
analysis. Obviously, many facts are relevant to a
confirmation vote.
It was improper for Judge Pickering to solicit letters in
support of his nomination from lawyers who regularly appear
before him. It is important to my answer that the Judge asked
the lawyers to fax him the letters so that he could send them
to the Justice Department for transmittal to the Senate. He
did not ask the lawyers to send any letters directly to
Washington. Consequently, the Judge would know who submitted
letters and what the letters said, as would be obvious to the
lawyers.
I will assume initially that none of the lawyers whose
letters the judge solicited had current cases pending before
the judge. If a solicited lawyer (or litigant) did have a
pending matter, the situation is more serious, as discussed
further below.
Judge Pickering's solicitation creates the appearance of
impropriety in violation of Canon 2 of the Code of Conduct
for U.S. Judges. This document, based on the A.B.A. Code of
Judicial Conduct, contains the ethical rules that apply to
all federal judicial officers below the Supreme Court.
Judge Pickering's conduct creates the appearance of
impropriety, in part, because of the power federal judges,
and particularly federal trial judges, have over matters that
come before them. Federal judges enjoy a wide degree of
discretion, which means that many of their decisions will be
upheld absent an abuse of discretion. This is a highly
deferential standard. It means that for many decisions, the
district judge is the court of last resort and lawyers know
that.
Given this power over their cases, and therefore over the
lawyers whose cases come before them, ethics rules for judges
forbid them to make certain requests of lawyers and others
that ``might reasonably be perceived as coercive.'' Canons
4(C); 5(B)(2). These particular Canons deal with soliciting
charitable contributions. They absolutely forbid the judge
``personally'' to participate in charitable or other non-
profit fundraising activities. They also forbid participation
in ``membership solicitation'' that ``might reasonably be
perceived as coercive.'' A narrow exception is made for
fundraising from other judges ``over whom the judge does not
exercise supervisory or appellate authority.'' Canon 4(C).
In these situations, of course, the judge would be
soliciting a benefit for an organization, and not, as here,
for the judge himself. That difference makes the present case
more troubling because a judge would ordinarily have a
greater, and certainly a personal, interest in a significant
promotion than he or she would have in a contribution to an
organization with which the judge is affiliated.
Judge Pickering's solicitations was ``coercive'' because a
lawyer who regularly practices before him was not free to
fail to provide a letter endorsing Judge Pickering's
promotion. Given the risk to lawyers' (and their firms')
clients--a risk they would readily perceive--lawyers would
feel coerced to comply with the Judge's solicitation of
letters and in fact to exaggerate their support for the
Judge.
I do not suggest that Judge Pickering would actually
retaliate against a non-complying lawyer or his or her
clients. Nor should the word ``coercive'' be understood to
describe the Judge's subjective intent. Canon 2 tells judges
to ``avoid . . . the appearance of impropriety in all
activities.'' In evaluating Canon 2, we use an objective
standard. We do not ask whether Judge Pickering would in fact
``punish'' a recalcitrant lawyer or what was really on his
mind. We should not have to make that inquiry. We focus on
the situation itself and how it will appear to the public.
Directly on point is Advisory Opinion 97 (1999), which I
attach. It was written by the Committee on Codes of Conduct
of the Judicial Conference of the United States (the body of
federal judges that interprets the Code of Conduct in
response to questions from judges). The Committee was asked
whether and when a person being considered for the position
of U.S. Magistrate, or for reappointment to that position,
must recuse himself or herself under the following
circumstances.
Initial appointments as a magistrate judge are made by
district judges from a list compiled by a panel of lawyers
and others. Identity of the members of the panel is public.
Reappointments as a magistrate judge are made following a
report of the same kind of panel.
The Committee wrote in Opinion 97 that a person appointed
or reappointed as a federal magistrate judge did not have to
recuse himself or herself from sitting in a case where a
lawyer before the magistrate judge had been on the panel
recommending the appointment or reappointment. But the
opinion emphasized that the panel ``operates under a
requirement of strict confidentiality,'' so that the
candidate was ``privy to the individual opinions of the panel
members concerning any candidate.'' If this were not so for a
particular panel member, recusal might be required. (The
Opinion states: ``Of course, in the unlikely event that
during the selection process something were to occur between
a panel member and the magistrate judge that bears directly
on the magistrate judge's ability to be, or to be perceived
as being, fair and impartial in any case involving that panel
member, then the facts on that particular situation would
have to be evaluated by the magistrate judge to determine if
recusal is an issue and if notification should be provided to
the parties.'') In the situation you present, Judge Pickering
removed the opportunity for confidentiality by having the
lawyers' letters sent directly to him for transmittal to
Washington.
The testimony does not clarify whether any of the lawyers
or litigants whom Judge Pickering solicited had current
matters pending before him. The only reference to this issue
is at line 23 on page 81, where you ask whether ``present or
former litigants, parties in cases that you handled'' were
asked to write letters. Judge Pickering answered ``some.''
This is ambiguous.
The impropriety becomes particularly acute if lawyers or
litigants with matters currently pending before the Judge
were solicited. Then the desire to please the Judge would be
immediately obvious and the coercive nature of the request
even more apparent. In addition, soliciting favorable letters
from lawyers or litigants in current matters could lead to
recusal on the ground that the Judge's ``impartiality might
reasonably be questioned.'' 28 U.S.C. Sec. 455(a). As stated
below, judges are instructed to avoid unnecessary recusals.
In Opinion 97, the Committee addressed the situation where
a lawyer currently appearing before a magistrate judge was
simultaneously sitting on a panel considering whether to
recommend the same judge's reappointment. The Committee
concluded that while the issue of the magistrate judge's
reappointment was under consideration by a panel, the judge
should not sit in any matter in which a lawyer on the panel
represented a party. This was true even though the lawyer's
own position on the panel was confidential and unknown to the
judge. (The Opinion states: ``Therefore, in the opinion of
the Committee, during the period of time that the panel is
evaluating the incumbent and considering what recommendation
to make concerning reappointment, a perception would be
created in reasonable minds that the magistrate judge's
ability to carry out judicial responsibilities with
impartiality is impaired in any case involving an attorney or
a party who is a member of the panel.'') Here, of course, the
situation is more serious because Judge Pickering would know
what, if anything, a lawyer wrote.
Opinion 97 is consistent with court rulings that have
disqualified judges, or reversed judgments, when the judge,
personally or through another, was exploring the possibility
of a job with a law firm or government law office then
appearing before him. See, e.g., Scott v. U.S., 559 A.2d 745
(D.C. 1989) (conviction reversed where judge was negotiating
at the time for a job with the Justice Department). Pepsico,
Inc. v. McMillen, 764 F.2d 458 (7th Cir. 1985) (judge
disqualified after headhunter for judge contacted law firms
appearing before judge). Recusal has also been required where
the judge's contact with a litigant or lawyer in a pending
case was not employment-related but was otherwise viewed as
favorable to the judge. Home Placement Service, Inc. v.
Providence Journal Co., 739 F.2d 671 (1st Cir. 1984) (recusal
required where judge cooperated with a newspaper reporter in
a complimentary article about the judge and his wife while
newspaper's case was pending before judge).

[[Page S13561]]

The Code of Conduct for U.S. Judges requires judges to
refrain from activity that could lead to unnecessary recusal.
Canon 3 states that the ``judicial duties of a judge takes
precedent over all other activities.'' Canon 5 instructs
judges to `'regulate extra-judicial activities to minimize
the risk of conflict with judicial duties.'' Opinion 97 and
the cases cited would have given a current litigant who did
not write (or whose lawyer did not write) a letter
recommending the Judge a strong legal basis to seek to recuse
the Judge in the litigant's case. A litigant whose case came
before the Judge reasonably soon thereafter, but whose lawyer
had not written a letter in response to the Judge's earlier
request (as the Judge would be aware), would also have a
basis for a recusal motion.
I hope this letter assists your important work.
Sincerely yours,
Stephen Gillers.

Mr. KOHL. Mr. President, today we are considering the nomination of
Charles Pickering to the Fifth Circuit Court of Appeals. Despite the
fact that the Judiciary Committee rejected his confirmation little more
than 18 months ago, the President has seen fit to renominate Judge
Pickering for this appellate court judgeship. But nothing that has
occurred in the last year should alter our conclusion that we should
not confirm Judge Pickering.
The President's decision to again advance Judge Pickering's
nomination at this time is hard to understand. Had new facts come to
light regarding Judge Pickering's qualifications or record which
assuaged our doubts concerning his fitness for this judgeship, or new
explanations emerged for his rulings and actions while a district
judge, we could understand the President's decision to renominate him.
But absolutely nothing of the kind has happened. His record was
scrutinized at length and in detail by this Committee last year, and a
majority found it deficient. Rather than examining the qualifications
and record of a new nominee, we are once again rehashing the already
well-documented and well-established problems with this nominee. And
our conclusion today is the same as it was last year--Judge Pickering
does not warrant a promotion to the Fifth Circuit.
As Judge Pickering's record became known last year, we grew more and
more concerned about his ability to apply and make the law without
interjecting his strongly held opinions. Many of Judge Pickering's
decisions are far outside of the mainstream and appeared to be
motivated by a rigid ideological agenda. For example, he has shown an
unrelenting hostility to persons bringing cases of employment
discrimination on the grounds of race, ethnicity or gender. In voting
rights cases, he has demonstrated a callous attitude toward the core
democratic principle that every vote must count.
And we are all aware of Judge Pickering's disgraceful actions to
reduce the sentence of a man convicted burning a cross in the front
lawn of an interracial couple. Judge Pickering's extraordinary behavior
on behalf of a defendant in a cross-burning case seriously calls into
question his impartiality, his judgment, and his fitness to serve as an
appeals court judge. This incident looks no better today than it did 18
months ago.
We are further troubled by Judge Pickering's continued active
solicitation of support of letters of recommendation from lawyers
practicing before him. Judge Pickering admitted at his confirmation
hearing last year that he asked several lawyers who practiced before
him to write letters of support and to send those letters to his
chambers so that he could send them on to the Justice Department. This
conduct obviously constitutes an abuse of a judge's position. Even
after hearing the ethical concerns of many last year, he has continued
this inappropriate practice. Such plain disregard for judicial
proprieties and ethics speaks loudly against promoting Judge Pickering
to the Fifth Circuit.
The deficiencies in Judge Pickering's record are particularly
intolerable in a candidate for an appellate judgeship. Once confirmed
to their positions for life, federal judges are unanswerable to the
Congress, the President, or the people. But this fact has special force
when we are considering an appellate court nominee. On the circuit
court, a judge enjoys the freedom to make policy if he chooses with
little concern of being overruled. Subject only to the infrequent
review by the Supreme Court, Court of Appeals judges are the last word
with respect to our liberties, our Constitution, and our civil rights.
I also should stress that I do not oppose Judge Pickering because his
political views might be different than mine. The President has a right
to appoint judges of his own political leanings. But in the case of
Judge Pickering, it appears his ideology is so strong, and his
convictions so settled, as to interfere with his ability to fairly
dispense justice and protect the rights of the most vulnerable in our
society. Judge Pickering's record as a judge over the past decade has
called into question whether he can enter the courtroom and apply the
law fairly, objectively, and without prejudice. This reason alone
compels us to oppose his nomination.
I must also dissent from the charge that filibustering this
nomination is an abuse of our Constitutional duty to advise and
consent. While such a step is not--and should not--be done routinely,
filibusters of judicial nominations have been undertaken under the
leadership of both parties several times in recent years. This does not
even take into account the silent filibuster known as a ``hold''--often
anonymous--which permits one objector to block consideration of a
judicial nominee. President Clinton's nominees were routinely defeated
by anonymous holds. And those holds only defeated the nominees who were
lucky enough to even get a hearing and a committee vote. In the case of
Judge Pickering, his candidacy has been reviewed and debated twice by
the Judiciary Committee. Plainly he has received fair consideration of
his nomination.
Judge Pickering is simply unfit for promotion to the U.S. Court of
Appeals for the Fifth Circuit. No new facts have come forward which
justifies reconsideration of the Judiciary Committee's decision to
reject his nomination last year. For these reasons, I must vote against
cloture on his nomination.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, over the years, I have spoken many times in
the Chamber. In 29 years I have spoken on everything from arms control
treaties to relatively routine matters. In this particular case, I come
here with mixed feelings. The Senator from New York spoke about his two
friends from Mississippi, and that does bother me because the Senate--
and I believe I am very much a creature of the Senate--on many issues,
gets along with comity. The Senators from Mississippi are both good
friends.
I consider the senior Senator from Mississippi, Mr. Cochran, one of
my closest friends in this body. We traveled together in Mississippi,
in Vermont, abroad, and we have always worked closely together on
everything from appropriations to agricultural matters.
Senator Lott has always been very courteous to me and is a good
friend. We even compare photographs of our grandchildren. I think we
have both come to the conclusion that is the best part of life.
We are at a challenging time in our Nation's history. Over the last
several days more than 200 people have been killed or wounded in
Baghdad. The number of unemployed Americans has been at or near levels
not seen in years, poverty is on the rise in our country, and the
current administration seems intent on saddling our children and
grandchildren with trillions in deficits and debt. For the first time
in a dozen years, charitable giving in this country is down. That is
not the type of compassion we heard about just 3 short years ago.
While negative indicators are spiking, the Republican leadership of
the Congress now is choosing to abandon work on very real problems in
education, health care and national security to turn the Senate's
attention to wheel-spinning exercises involving the most controversial
judicial nominees.
Ironically, in spite of the heated rhetoric on the other side of the
aisle, we have made progress on judicial vacancies when and where the
administration has been willing to work with the Senate. Indeed, just
the other day the Senate confirmed the 167th of this President's
judicial nominees--100 of them, confirmed by the previous Democratic-
controlled Senate.
In less than 3 years' time, the number of President George W. Bush's
judicial nominees confirmed by the Senate

[[Page S13562]]

has exceeded the number of judicial nominees confirmed for President
Reagan in all 4 years of his first term in office. Republicans
acknowledge Ronald Reagan as the ``all time champ'' at appointing
Federal judges, and already the record compiled by the Senate in
confirming President George W. Bush's nominees compares very favorably
to his. Since July 2001, despite the fact that the Senate majority has
shifted twice, a total of 167 judicial nominations have been confirmed,
including 29 circuit court appointments. One hundred judges were
confirmed in the 17 months of the Democratic Senate majority, and now
67 more have been confirmed during the comparative time of the
Republican majority.
One would think that the White House and the Republicans in the
Senate would be heralding this landmark. One would think they would be
congratulating the Senate for putting more lifetime appointed judges on
the Federal bench than President Reagan did in his entire first term
and doing it in three-quarters of the time. But Republicans have a
different partisan message. The truth is not consistent with their
efforts to mislead the American people into thinking that Democrats
have obstructed judicial nominations. Only a handful of the most
extreme and controversial nominations have been denied consent by the
Senate. Until today only three have failed. One-hundred sixty-seven to
three. That record is in stark contrast to the more than 60 judicial
nominees from President Clinton who were blocked by a Republican-led
Senate.

Not only has President Bush been accorded more confirmations than
President Reagan was during his entire first term, but the Senate also
has voted more confirmations this year than in any of the 6 years that
Republicans controlled the Senate when President Clinton was in office.
Not once was President Clinton allowed 67 confirmations in a year when
Republicans controlled the pace of confirmations. Despite the high
numbers of vacancies and availability of highly qualified nominees,
Republicans never cooperated with President Clinton to the extent
Senate Democrats have. President Bush has appointed more lifetime
circuit and district court judges in 10 months this year than President
Clinton was allowed in 1995, 1996, 1997, 1998, 1999, or 2000.
Last year, the Democratic majority in the Senate proceeded to confirm
72 of President Bush's judicial nominees and was savagely attacked
nonetheless. Likewise, in 1992, the last previous full year in which a
Democratic Senate majority considered the nominees of a Republican
President, 66 circuit and district court judges were confirmed.
Historically, in the last year of an administration, consideration of
nominations slows, the ``Thurmond rule'' is invoked, and vacancies are
left to the winner of the Presidential election. In 1992, however,
Democrats proceeded to confirm 66 of President Bush's judicial nominees
even though it was a Presidential election year. By contrast, in 1996,
when Republicans controlled the pace for consideration of President
Clinton's judicial nominees, only 17 judges were confirmed, and not a
single one of them was to a circuit court.
In fact, President Bush has now already appointed more judges in his
third year in office than in the third year of the last five
Presidential terms, including the most recent term when Republicans
controlled the Senate and President Clinton was leading the country to
historic economic achievements. That year, in 1999, Republicans allowed
only 34 judicial nominees of President Clinton to be confirmed all
year, including only 7 circuit court nominees. Those are close to the
average totals for the 6 years from 1995 to 2000 when a Republican
Senate majority was determining how quickly to consider the judicial
nominees of a Democratic President. By contrast, the Senate to this
point has confirmed 67 judicial nominees, including 12 circuit court
nominees, almost double the totals for 1999.
These facts stand in stark contrast to the false partisan rhetoric by
which Republican partisans have sought to demonize the Senate for
having blocked seemingly all of this President's judicial nominations.
The reality is that the Senate is proceeding at a record pace and
achieving record numbers. We have worked hard to balance the need to
fill judicial vacancies with the imperative that Federal judges need to
be fair.

In so doing, we have reduced the number of judicial vacancies to 39,
according to the Republican Web site for the Judiciary Committee. Had
we not added more judgeships last year, the vacancies might well stand
below 25. More than 95 percent of the Federal judgeships are filled.
After inheriting 110 vacancies when the Senate Judiciary Committee
reorganized under Democratic control in 2001, I helped move through and
confirm 100 of the President's judicial nominees in just 17 months.
With the additional 67 confirmations this year, we have reached the
lowest number of vacancies in 13 years. There are more Federal judges
on the bench today than at any time in American history.
But, despite this record of progress, made possible only through good
faith effort by Democrats on behalf of a Republican President's
nominees, and in the wake of the years of unfairness shown the nominees
of a Democratic President, the Republican leadership has decided to use
partisan plays out of its playbook as this year winds down.
Today we discuss the nomination of a candidate for a judgeship whose
record already has been thoroughly examined and rejected by the Senate
Judiciary Committee. Instead of debating and voting on the
appropriations bills remaining to us for this year, including the bill
that funds the Justice Department, the State Department, the Commerce
Department and the Federal judiciary. The Senate is being asked to
devote its time to the nomination of a candidate for a judgeship who
has demonstrated that his record as a lower court judge is not
deserving of a promotion. Instead of putting partisanship aside and
bridging our differences for the sake of accomplishing what we can for
the American people, we are asked to participate in a transparently
political exercise initiated by a President who claimed to want to be a
uniter, not a divider. With respect to his extreme judicial
nominations, President George W. Bush is the most divisive President in
modern times. Through his extreme judicial nominations, he is dividing
the American people and he is dividing the Senate.
The nominee we are being asked by the majority to consider today is
Charles W. Pickering, Sr., currently a lifetime appointee on the
Federal trial court in Mississippi. Originally nominated in 2001 by
President Bush, this nominee's record underwent a thorough examination
by the Senate Judiciary Committee and was found lacking. Rejected for
this promotion by the committee last year because of his poor record as
a judge and the ethical problems raised by his handling of his duties
in specific instances, Judge Pickering's nomination was nonetheless
sent back to the Senate this year by a President who is the first in
our history to reject the judgment of the Judiciary Committee on a
judicial nominee. This is the only President who has renominated
someone rejected on a vote by the Judiciary Committee for a judicial
appointment.

For a while this year this renomination lay dormant while Republicans
planned a followup hearing in their effort to reinterpret the facts and
the record. Every once in a while we would read a news account
reporting that some Republican official or other would insist that the
nomination was to resurface. Judge Pickering himself told an audience
at a recently delivered speech that several hearings on his nomination
were scheduled and cancelled over the last year by the Republicans.
Recently, however, Republicans decided to forego any pretense at
proceeding in regular order. They simply placed the name of Judge
Pickering on the committee's markup agenda and voted him out by means
of their one-vote majority. There was no reason given for suddenly
bringing this nomination to the fore again. There are plenty of
nominees for the committee to consider whom it has not previously
rejected. The committee had been told since January that a new hearing
would first be held, but none was.
So the timing has begged the question: Why Judge Pickering, and why
now? Why not move ahead to confirm well-qualified candidates, such as

[[Page S13563]]

Roger Titus or Gary Sharpe? Why expend the Senate's valuable time
rehashing arguments about a controversial nomination that has already
been rejected once before?
Some have charged that the timing of this vote has been arranged to
coincide with the gubernatorial election next Tuesday in Mississippi.
That is because for month, after month, after month--10 months, in
fact--this renomination lay dormant, and Republicans seemed reluctant
to bring it back to the committee, let alone to the Senate floor, for
votes.
Next Tuesday, the people of Mississippi will be voting for their
Governor in what newspapers report may be a pretty tight race. So now
that this nomination is back, coinciding so neatly with an election in
which Haley Barbour, a savvy Republican political operative, is
challenging an incumbent Democratic Governor, Ronnie Musgrove, it does
make you wonder--especially when Governor Musgrove supports the
Pickering nomination. Let us hope that the Senate is not being used for
that partisan purpose.

Here we have a nominee defeated by the Judiciary Committee entirely
on the merits--a nominee who, as Democratic Senators have shown, has a
record that does not merit this promotion, who injects his personal
views into judicial opinions, and who has made highly questionable
ethical judgments. We also have a record of misleading and unfair
arguments made by the nominee's supporters in the Senate in the wake of
his first defeat, examples of Republican Senators implying that
Democrats opposed the nominee because of his religion or region.
Some believe that the political calculation has been made to ignore
the facts, to pin some unflattering characterization on Democratic
candidates in Mississippi, and to count on cynicism and misinformation
to rule the day. Introduce the red herring that opposition to Judge
Pickering's confirmation is tantamount to some kind of insult to the
South, and hope nobody sees through that deception.
The poorly named ``Committee for Justice,'' an organization created
to make the ugliest and most partisan political arguments in favor of
President Bush's nominees, and an organization run by the first
President Bush's White House Counsel, Boyden Gray, has already produced
television advertisements in support of Judge Pickering, designed to
put pressure on Democratic Senators. How long before we see those ads
running on Mississippi television stations? And out of whose offices
does the ``Committee for Justice'' do its business? None other than the
Washington lobbying firm still controlled by and named after the
Republican nominee himself, Mr. Haley Barbour. And now, as part of an
orchestrated campaign, Republican partisans in the House have also been
pressed into service for this misinformation campaign.
Another shameful thing we will hear today is a distortion of the
history of the filibuster. Some Republicans would now have the public
believe that a filibuster of a nominee is, in their words,
``unprecedented.'' This is another deception. As some of these same
Republicans well know, they filibustered the nominations of Judge Paez
and Judge Berzon on the floor of the Senate in 1999 and 2000, as they
conceded at that time. By way of example, I note that several
Republicans currently serving voted against cloture, the motion to
close debate, after the Paez nomination had been pending before the
Senate for more than four years. I have already noted that even after
losing the cloture vote, Republicans led by Senator Sessions moved to
indefinitely postpone a vote on Judge Paez's nomination, and a number
of Republican Senators currently serving voted to continue to block
action on the Paez nomination in 2000. Yet some Republican Senators now
claim that it is unprecedented to filibuster or deny a circuit court
nominee an up or down confirmation vote on the Senate floor.

Their filibuster of Judge Paez's nomination is just one example of
Republican filibusters of Democratic nominees. Others include Dr. David
Satcher to be Surgeon General in 1998; Dr. Henry Foster to be Surgeon
General in 1995; Judge H. Lee Sarokin to the Third Circuit in 1994;
Ricki Tigert to the Federal Deposit Insurance Corporation in 1994;
Derek Shearer to be an Ambassador in 1994; Sam Brown to an ambassador-
level position in 1994; Rosemary Barkett, a Mexican-American attorney,
nominated to the 11th Circuit, 1994; Larry Lawrence, to be ambassador
in 1994; Janet Napolitano at the Justice Department in 1993; and Walter
Dellinger to be Assistant Attorney General for the Office of Legal
Counsel at the Justice Department in 1993.
The nominations of Dr. Foster and Mr. Brown were successfully
filibustered on the Senate floor by Republicans. Similarly, the
nomination of Abe Fortas by President Lyndon B. Johnson to the Supreme
Court of the United States was successfully filibustered by Republicans
with help from some Southern Democrats.
In addition, to the nominees of Democratic Presidents whose
nominations were subject to sometimes fatal delay on the floor,
Republicans made an art form of killing nominations in committee so
that they would never even have a vote on the floor. According to the
public record, more than 60 of President Clinton's judicial nominees
were defeated by willful refusal to allow them a vote, and more than
200 executive branch nominees, including several Latinos, of President
Clinton met the same fate, with their nominations nixed in the dark of
night without any accountability. They were filibustered and never
allowed votes on the Senate floor. I discussed this history in more
detail on February 26, 2003, in the Congressional Record.
In addition, in the Congressional Record on March 5, 2003, March 11,
2003, and March 13, 2003, I summarized the history of filibusters of
nominees. I also spoke on May 19, 2003, about the history of Senate
debate and the constitutionality of Rule XXII of the Senate rules. The
fact of the matter is that many nominees have been blocked from
receiving votes throughout the Senate's history. For example, 25
Supreme Court nominees were not confirmed in the Senate's history.
Eleven of those nominations were defeated by delay, not by confirmation
votes on the Senate floor, including the nomination of Justice Fortas.
Since the early 19th century, nominees for the highest court and to the
lowest short-term posts have been defeated by delay, while others were
voted down. Not even all of President Washington's nominees were
confirmed, nor were many other Presidents', often for political or
ideological reasons. Filibusters and other parliamentary practices to
delay matters were known to the Framers. There was even a filibuster in
the first Congress over locating the capital.
It is too bad that it has come to a filibuster on Judge Pickering's
nomination, but the White House's refusal to accept the Senate's advice
has made it inevitable.
Let me clearly outline, once again, the reasons why I cannot support
this nomination.
Judge Pickering was nominated to a vacancy on the Fifth Circuit on
May 25, 2001. Unfortunately, due to the White House's change in the
process that had been used by Republican and Democratic Presidents for
more than 50 years, his peer review conducted by the ABA's Standing
Committee on the Federal Judiciary was not received until late July of
that year, just before the August recess. At that point the committee
was concentrating on expediting the confirmation hearing of the new
Director of the Federal Bureau of Investigation, who was confirmed in
record time before the August recess, and other nominations.
As a result of a Republican objection to a Democratic leadership
request to retain all judicial nominations pending before the Senate
through the August recess, the initial nomination of Judge Pickering
was required by Senate Rules to be returned to the President without
action. Judge Pickering was renominated in September, 2001.
Although Judge Pickering's nominations was not among the first batch
of nominations announced by the White House and received by the Senate,
in an effort to accommodate the Republican Leader, I included this
nomination at one of our three October hearings for judicial
nominations. The day before his hearing, held on October 18, the three
Senate office buildings were evacuated because of the threat of anthrax
contamination. Rather than cancel the hearing in the wake of the
September 11 attacks and the dislocations due to the anthrax letters,
we sought to go forward.
Senator Schumer chaired the session in a room in the Capitol, but
only a few

[[Page S13564]]

Senators were available to participate. Security and space constraints
prevented all but a handful of people from attending. In preparation
for the October 18 hearing, we determined that Judge Pickering had
published a comparatively small number of his district court opinions
over the years. In order to give the committee time to consider the
large number of unpublished opinions that Judge Pickering estimated he
had written in his 12 years on the bench, and because of the
constraints on public access to the first hearing, the committee
afforded the nominee an opportunity for a second hearing.

I continued to work with Senator Lott and, as I told him in response
to his inquiries that December, I proceeded to schedule that follow-up
hearing for the first full week of the 2002 session. There was, of
course, ample recent precedent for scheduling a follow-up session for a
judicial nominee. Among those nominees who participated in two hearings
over the last few years were Marsha Berzon, Richard Paez, Margaret
Morrow, Arthur Gajarsa, Eric Clay, William Fletcher, Ann Aiken and
Susan Mollway, among others. Unlike those hearings, some of which were
held years after the initial hearings, Judge Pickering's second hearing
was held less than 4 months after the first one and, as promised,
during the first full week of the following session.
I should note that the committee worked with Senators Lott and
Cochran from the time of the change in the majority to ensure swift
confirmation of other consensus candidates to the Federal bench, and as
United States Attorneys and United States Marshals. On October 11,
2001, the Senate confirmed United States District Court Judge Michael
Mills for the Northern District of Mississippi; on October 23, James
Greenlee was confirmed as the U.S. Attorney for the Northern District
of Mississippi; and on November 6, Dunn Lampton received Senate
approval to be the U.S. Attorney for the Southern District of
Mississippi; Nehemiah Flowers was confirmed as the U.S. Marshal for the
Southern District of Mississippi on February 8 although he was not
nominated until the week before adjournment last session; and Larry
Wagster was confirmed as the U.S. Marshal for the Northern District of
Mississippi on February 8 although he was not nominated until the day
before adjournment the session before. We moved forward quickly that
year to fill all these crucial law enforcement vacancies in
Mississippi.
After determining that the number of Judge Pickering's published
opinions was unusually low, and within a week of the first hearing, the
committee made a formal request to Judge Pickering for his unpublished
opinions. Judge Pickering produced copies of those opinions to us. They
came to the committee in sets of 100 or more at a time, including a
delivery of more than 200 the day before Judge Pickering's second
hearing, and another 200 or more nearly a week after. It took three
written requests from the committee and more than 3 months, but
eventually we were assured that all available computer databases and
paper archives for all existing unpublished opinions had been searched.
We appreciated Judge Pickering and his clerks providing the requested
materials. Other nominees had been asked by this committee to fulfill
far more burdensome requests than producing copies of their own
judicial opinions. For example, 4 years after he was nominated to the
Ninth Circuit, Judge Richard Paez was asked to produce a list of every
one of his downward departures from the Federal Sentencing Guidelines
during his time on the Federal district court. That request required
three people to travel to California and join the judge's staff to
hand-search his archives. Margaret Morrow, who was nominated to a
district court judgeship, was asked to disclose her votes on California
referenda over a number of years and required to collect old bar
magazine columns from years before. Marsha Berzon, who was nominated to
the Ninth Circuit, was asked to produce her attendance record from the
ACLU of Northern California. She was also asked to produce records of
the board meetings and minutes of those meeting so that Senators could
determine how she had voted on particular issues. Timothy Dyk,
nominated to the Federal circuit, was asked for detailed billing
records from a pro bono case that was handled by an associate he
supervised at his law firm.
The Judiciary Committee only asked Judge Pickering to produce a
record of his judicial rulings. They are public documents but were not
readily available to the public or the committee. Given the
controversial nature of this nomination and the disproportionately high
number of unpublished opinions, this request was appropriate as part of
our efforts to provide a full and fair record on which to evaluate this
nomination, as some Republican Senators have conceded.
I set forth this background, for the record, to ensure that no one
misunderstands how the committee went about evaluating Judge
Pickering's record. We did not engage in a game of tit-for-tat for past
Republican practices, nor did we delay proceeding on this nomination,
as so many nominations were delayed in recent years. Rather, the Senate
Judiciary Committee seriously considered the nomination, gave the
nominee two opportunities to be heard, and promptly scheduled a
Committee vote. I also postponed a business meeting of the committee 1
week at the request of the Republican leader, out of deference and
courtesy to him.
The responsibility to advise and consent on the President's nominees
is one that I take seriously. I firmly believe that Judge Pickering's
nomination to the Court of Appeals was given a fair hearing and a fair
process before the Judiciary Committee. Those members who had concerns
about the nomination raised them and gave the nominee the opportunity
to respond, both at his hearing and in written follow-up questions. In
particular, I thank Senator Schumer for chairing the October 18 hearing
and for his fairness then and, again, at the February follow-up
hearing. I commend Senator Feinstein for her fairness in chairing that
follow-up hearing. I said at the time that I could not remember anyone
being more fair than she was that day, and I reiterate that today.

My regret is that she and so many Democrats on the Judiciary
Committee were subjected to unfair criticism and attacks on their
character and judgment after last year's committee vote defeating the
nomination. I was distressed to hear that Senator Feinstein received
calls and criticism, as have I, that were based on our religious
affiliations. That was wrong. I was disappointed to see Senator Edwards
subjected to criticism and insults and name-calling for asking
questions. That was regrettable. While Democrats and most Republicans
have kept to the merits of this nomination, it is most unfortunate that
others chose to vilify, castigate, unfairly characterize and condemn
without basis some Senators who were working conscientiously to fulfill
their constitutional responsibilities.
I would like to explain exactly what it is about Judge Pickering's
record as a judge that so clearly argues against his confirmation. My
first area of concern, which I raised at his hearing, is that Judge
Pickering's record on the United States District Court bench, as
reflected by several troubling reversals, does not commend him for
elevation. Instead, it indicates a pattern of not knowing or choosing
not to follow the law, of relying to his detriment on magistrates and
of misstating and missing the law.
At his hearing, I asked Judge Pickering about many of these
reversals. Looking at his record, I saw that he had been reversed by
the Fifth Circuit at least 25 times. And in 15 of those cases, the
Fifth Circuit reversed him without publishing their decisions, which
according to their rules and practice indicates that the appellate
court regards its decision as based on well-settled principles of law.
Those Fifth Circuit reversals on well-settled issues indicated that
Judge Pickering had committed mistakes as a judge in either not knowing
the law or in not applying the law in the cases before him. That is
fundamental to judging.
I asked Judge Pickering about a toxic tort case, Abram v. Reichhold
Chemicals. There he dismissed with prejudice the claims of eight
plaintiffs because he held that they had not complied with a case
management order. That means he dismissed them and denied them all
rights to bring the case. Again, the Fifth Circuit reversed Judge
Pickering's dismissal, holding he had

[[Page S13565]]

abused his discretion because he had not tried to use lesser sanctions
before throwing the plaintiffs out of court permanently, without
hearing the case on the merits. Again, the Fifth Circuit did not
publish its reversal, indicating that it was settled law that a
dismissal with prejudice was appropriate only where the failure to
comply was the result of purposeful delay or contumaciousness, and the
record reflects that the district court employed lesser sanctions
before dismissing that action. The Fifth Circuit found none of those
conditions existed.
Approximately 3 years before reversing Judge Pickering in the Abram
case, it had reversed him on the same legal principle in a case called
Heptinstall v. Blount. There the Fifth Circuit held that he had abused
his discretion in dismissing a case with prejudice for a discovery
violation without any indication that he had used this extreme measure
as a remedy of last resort. And in its ruling in Heptinstall, the Court
cited another of its previous rulings which stated the same principle
of law. Thus, this was not a principle with which Judge Pickering was
unfamiliar, he had been reversed on that basis once and committed the
same error again. This was binding Fifth Circuit authority of which he
was aware but chose not to follow.
At his hearing, I asked Judge Pickering to explain his ruling in
Abram, especially in light of the prior reversal by the Fifth Circuit
on the same principle of law in another of his earlier cases. And while
he offered his recollection of the facts of the case, he offered no
satisfactory explanation of why he ruled in a way contrary to settled
and binding precedent.
I asked Judge Pickering about a first amendment case, Rayfield
Johnson v. Forrest County Sheriff's Department. This was a case in
which a prison inmate filed a civil rights lawsuit claiming that a
jail's rules preventing inmates from receiving magazines by mail
violated his first amendment rights. In an unpublished one-paragraph
judgment, Judge Pickering adopted the recommendation of a magistrate
and granted the jail officials' motion to grant them summary judgment.
In other words, he said that the petitioner's claim of a first
amendment right to religious materials which he wanted to get through
the mail would be denied without further proceedings.
In its unpublished opinion, the Fifth Circuit Court of Appeals, not
considered by many a liberal circuit or one that coddles prisoners,
reversed Judge Pickering and said that the inmate's first amendment
rights had been violated. In explaining why he was wrong, the Fifth
Circuit relied on and cited a published decision of its own from
several years before, Mann v. Smith. In that case, they struck down a
jail rule prohibiting detainees from receiving newspapers and
magazines, holding that it violated the first amendment.

What was of concern here was that in the Mann case, the prison
officials had made much the same argument about fire hazards and
clogged plumbing that were made by prison officials and accepted by
Judge Pickering in the Johnson case. This was a case with almost
identical facts in his own circuit, what we call in the law a case ``on
all fours'' with the Johnson case, and he did not cite it. Indeed, he
turned his back on it and ruled the other way. We do not know whether
he did not know the law or did not follow it. At the hearing, Judge
Pickering admitted that the magistrate who had worked on the matter and
he had ``goofed'' and that he was unaware of the law and the recent,
binding precedent in his own circuit.
There are many other reversals, which continue to concern me for the
same reasons that I remain concerned about the Johnson case and about
the Abram case.
One of them is a case called Arthur Loper v. United States. This is
another case in which Judge Pickering was reversed in an unpublished
Fifth Circuit opinion, which again means that he violated ``well-
settled principles of law.'' This case dealt with an enhanced sentence
that the Fifth Circuit found he had imposed improperly on a criminal
defendant. When the defendant made a motion for the sentence to be
corrected or set aside, Judge Pickering denied the inmate's motion
without giving him a hearing but without even waiting for the
government to respond. On appeal, the Fifth Circuit reversed Judge
Pickering's denial of the motion, noting that the government conceded
that the defendant was correct, and that an error had been made that
prohibited the judge from imposing the sentence that he did. The Fifth
Circuit also cited the statute under which the inmate filed his motion,
which requires that under ordinary circumstances, the trial judge
``shall . . . grant a prompt hearing'' and ``make findings of fact and
conclusions of law'' on the petitioner's claims. The Fifth Circuit
criticized Judge Pickering for denying the motion in a ``one-page order
that did not contain his reasoning.'' And then the court went on to
remind him that ``[a] statement of the court's findings of fact and
conclusions of law is normally `indispensable to appellate review.' ''
Reading this case, I can only wonder why Judge Pickering did not abide
by the statute and follow the law. Was he unaware of the requirements
of the law or had he decided to follow his own view of what the law
should be on the matter?
There is another case in which Judge Pickering denied a petitioner's
motion for a hearing and missed controlling Fifth Circuit precedent.
The case was U.S. v. Marlon Johnson, in which a prisoner claimed that
his rights had been violated because of ineffective assistance of
counsel and asked that his guilty plea be set aside. The inmate claimed
that he had asked his counsel to file a direct appeal of his
conviction.
Once again, in another unpublished opinion, the Fifth Circuit
reversed Judge Pickering's denial of the inmate's motion, explaining
that the inmate's ``allegation that he asked his counsel to file a
direct appeal triggered an obligation to hold an evidentiary hearing.''
This time the court of appeals relied on two of its own published
decisions for its conclusion, neither of which Judge Pickering
mentioned in his ruling. Again, there was settled law in the circuit of
which Judge Pickering was unaware of that he chose not to follow.
I know that something will likely be made of statistics purporting to
show that Judge Pickering does not have an unusually high ``reversal
rate,'' and that other judges, some appointed by Democrats, have higher
numbers of unpublished reversals. Whatever these numbers purport to
represent about the quantity of Judge Pickering's reversals--and I
cannot vouch for them one way or another, not knowing their source or
meaning--they do not in any way excuse the poor quality of his
underlying opinions.
In addition to the many times that Judge Pickering has been reversed
by the Court of Appeals for not knowing or following the law, there are
numerous instances of Judge Pickering misstating the law in cases that
were not appealed to a higher court and other cases in which he stated
a conclusion without any legal support.
An example is a statement by Judge Pickering in a case called Barnes
v. Mississippi Department of Corrections. In an earlier go-round in
this case, the Fifth Circuit had reversed Judge Pickering on one point,
and in this later opinion, he tried to explain that they did so, in
part, on the basis of a 1993 Supreme Court case called Withrow v.
Williams. In particular, Judge Pickering wrote that the Supreme Court,
``acknowledg[ed] in Withrow that the Miranda warning is not a
constitutional mandate.'' This was clearly a misreading of Withrow. I
trust that Judge Pickering would now acknowledge that the Supreme Court
recently made clear in Dickerson v. United States that the Miranda
warning is indeed derived from a constitutional mandate.
An example of an entirely unsupported conclusion comes in a case
called Holtzclaw v. United States, where Judge Pickering presided over
a habeas corpus petition by a Federal petitioner whom he had convicted.
Although this was the first habeas petition the prisoner had filed,
Pickering termed the petition frivolous. He regarded the petition as
restating claims that had already been made at trial. He dismissed it,
and stated that he would order prison officials to punish the
petitioner if he filed another frivolous petition. Judge Pickering also
conducted a ``survey'' of cases within his district to determine how
many frivolous habeas petitions had been filed. However, in the section
of his opinion dealing with the sanctions, he did not cite a single
statute, rule of procedure, local

[[Page S13566]]

rule or case as support for his decision. He stated:

In the future, this Court will give serious consideration
to requiring prison authorities to restrict rights and
privileges of prison inmates who file frivolous petitions
before this Court. Specifically, this Court gives notice to
Roger Franklin Holtzclaw that should he file another
frivolous petition for habeas corpus in the future, that the
Court will seriously consider and very likely order the
appropriate prison officials to restrict and limit the
privileges and rights of Petitioner for a period of from
three to six months and/or that the Court will also consider
other appropriate sanctions. Petitioner Roger Franklin
Holtzclaw is instructed not to file further frivolous
petitions.

Judge Pickering relied on no authority when he threatened to impose
sanctions. This sort of action by a federal judge is disturbing.
Through consideration and passage of habeas corpus reforms in 1996,
Congress has made very deliberate decisions about what sanctions ought
to be imposed for frivolous and repetitious petitions. In Holtzclaw,
Judge Pickering went beyond Congress' intent, and in what could be
described as judicial activism, threatens sanctions not contemplated by
the statute.
Another example of Judge Pickering's misunderstanding the basics of
Federal practice and due process occurred in a case called Rudd v.
Jones, where he presided over a prisoner's civil rights claim before
the enactment of the Prisoner Litigation Reform Act. He properly noted
that the Supreme Court required that a pro se plaintiff is ``entitled
to have his complaint liberally construed'' and admitted that, under
this rule, the complaint ``could be construed to state a cause of
action.'' Nevertheless, he claimed that the complaint was stated in
only conclusory terms and decided that, ``based upon previous
experience with complaints that are couched in such a highly conclusory
fashion, this Court is aware that plaintiffs in such cases are very
rarely successful and very seldom come forward with any facts that
would even justify a trial.'' Therefore, on his own motion, the Judge
ordered the plaintiff to refile the complaint with more specific
allegations or have the case dismissed before defendant had to respond.
He also did another ``survey'' to prove that Federal courts were
wasting their resources on frivolous prisoner civil rights claims.
In forcing the plaintiff to refile, Judge Pickering entirely
disregarded Federal Rule of Civil Procedure 8, which requires only
notice pleading. This is a basic tenet of the American system of
jurisprudence, laid out by the Supreme Court in 1957 in Conley v.
Gibson.
In yet another case, Judge Pickering disregards the applicable law.
In United States v. Maccachran, he denied a habeas corpus petitioner's
motion for recusal without referring the matter to another judge. The
petitioner filed affidavits stating that the judge had a personal bias
against him. The relevant statute, 28 U.S.C. Sec. 144, states:

Whenever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal bias
or prejudice either against him or in favor of any adverse
party, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.

According to the statute, the Judge had to allow another judge decide
whether he should be recused or not. However, Judge Pickering did not
follow the law, and he decided the case himself, stating that the
affidavit was false. In support of his decision, he cited the dissent
in a Fifth Circuit case.
I am also concerned about Judge Pickering's rulings and the attitude
they signal on one of the most precious rights we have as Americans:
voting rights. In Fairly v. Forrest County, a 1993 case, Judge
Pickering rejected a ``one-person, one-vote'' challenge to voting
districts that deviated in population by more than the amount deemed
presumptively unconstitutional by the Supreme Court. He called the
doctrine of one-person, one-vote ``obtrusive,'' expressing skepticism
about the role of the Federal courts in vindicating rights under the
Voting Rights Act in order to ensure meaningful participation by all
citizens in elections. In that case he also denigrates the value of
each citizen's vote, arguing that the impact of any malapportionment
``is almost infinitesimal'' because an individual voter holds so little
power. While we have always known about the power and value of
individual votes, the last Presidential election has certainly taught
all of us a new respect for the impact of each citizen. Judge
Pickering's disregard for such a vital American right and for the worth
of each American's vote is extremely troubling.

Additional questions arise from another disturbing trend that emerges
from a review of Judge Pickering's opinions, published and unpublished:
his habit of inserting his personal views into written decisions in
such a way as to create a terrible impression of bias to categories of
plaintiffs and hostility to entire types of claims before the Federal
courts.
One entire category of claims in which Judge Pickering demonstrates
hostility and bias is employment discrimination actions. This is also a
category of cases where an examination of the judge's unpublished
opinions was crucial, because over the last 12 years on the Federal
bench, he chose to publish only one of his employment discrimination
decisions. The remaining 12 were all among the unpublished decisions he
produced to the committee upon request after his first hearing last
October.
What is significant in these cases are the times in the unpublished
opinions that Judge Pickering went beyond merely ruling against the
plaintiff to make unnecessary, off-the-cuff statements about all the
reasons he believes plaintiffs claiming employment discrimination
should not be in court, and about the general lack of substance of
claims brought under the federal anti-discrimination statutes.
For example, in a 1996 case, Johnson v. Southern Mississippi Home
Health, Judge Pickering did not limit his opinion to a legal conclusion
based on the facts presented. Instead he made sure to note that:

In a case called Seeley v. Hattiesburg, No. 2:96-CV-327PG, (S.D.
Miss. Feb. 17, 1998), where he should have limited himself to the facts
and the law, Judge Pickering went on to comment about other matters
relating to race discrimination lawsuits apparently on his mind at the
time, writing that:

[T]he Courts are not super personnel managers charged with
second guessing every employment decision made regarding
minorities. . . The federal courts must never become safe
havens for employees who are in a class protected from
discrimination, but who in fact are employees who are
derelict in their duties.

In a credit discrimination case, Judge Pickering ruled on the case
before him, and then included a lengthy lecture giving his very
personal views on anti-discrimination laws. He wrote:

This case demonstrates one of the side effects resulting
from anti-discrimination laws and racial polarization. When
an adverse action is taken affecting one covered by such
laws, there is a tendency on the part of the person affected
to spontaneously react that discrimination caused the action.
Sometimes this is true and sometimes it is not true. All of
us have difficulty accepting the fact that we sometimes
create our own problems. When expectations are created that
are incapable of fulfillment. . . Plaintiffs fail to
recognize that whatever your race--black, white, or other--
natural consequences flow from one's actions. The fact that
one happens to be protected from discrimination does not give
one insulation from one's own actions.

All of this unnecessary editorializing is ironic given Judge
Pickering's testimony at his first hearing in October of last year,
when he explained to the committee why he has chosen to publish so few
of his opinions over the years. He explained that, ``Americans were
drowning in information,'' and that there is, ``absolutely too much,''
law written down. He testified that his view is, ``[i]f you are not
establishing precedent, why make lawyers have to read,'' and that,
``there is too much being written out there.'' ``If you don't have
anything to add . . . that is going to be helpful to somebody,'' he
said, ``you are just cluttering up the information.''
After reading statements like those I have just read, it seems to me
that a plaintiff with a discrimination claim, reading or knowing about
Judge Pickering's hostile position toward anti-discrimination laws and
claimants, would be justified in fearing that

[[Page S13567]]

the judge had already made up his mind.
Such blatant editorial comments, reflecting such a narrow view of the
important goals of our Nation's civil rights law, and coming from the
pen of the one person who is supposed to guarantee a fair hearing and a
just result, are troubling. Judges are not appointed to inject their
own personal beliefs into a case.
Judge Pickering voiced another disturbing aspect of his views on
employment discrimination cases almost as an afterthought at his second
hearing. In an attempt to explain his statements on the weakness of
many of these cases in response to Senator Kennedy, Judge Pickering
demonstrated a troubling misunderstanding of the role of Equal
Employment Opportunity Commission in reviewing employment cases. He
stated that he believed that, ``the EEOC engages in mediation and it is
my impression that most of the good cases are handled through mediation
and they are resolved. The cases that come to court are generally the
ones that the EEOC has investigated and found that there is no basis,
so then they are filed in court.'' But this is completely wrong. The
EEOC has a backlog of almost 35,000 cases. Both parties must agree to
mediation. The commission lack resources. Yet Judge Pickering had
already prejudged employment discrimination cases filed in court as
without merit. That kind of erroneous and unfair a generalization about
the strength of discrimination cases by a Federal judge responsible for
presiding over them, was extremely disconcerting. That a Federal judge,
on the bench for a dozen years, could so misunderstand the legal and
practical mechanisms behind employment discrimination cases was
disturbing.

While fair treatment in employment on the basis of race, sex,
national origin, age and disability is fundamental to the American
dream, and crucial to a free and thriving economy, due process in
criminal proceedings can be a matter of life and death. Here, too,
Judge Pickering has misunderstood the law and injected his personal
views.
In a 1995 case, Barnes v. Mississippi Department of Corrections,
Judge Pickering presided over a habeas corpus case in which a prisoner
claimed that his confession was involuntary because he had been held in
custody for more than three days before being given an initial hearing
by a magistrate. The judge denied the petition and the Fifth Circuit
reversed his decision. After remand, he again denied the petition,
stating that granting such a habeas petition ``is far more cruel than
denying to a known murderer a procedural right regardless of how
important that right is.'' He cited the Bible and Coke's treatise to
make the point that habeas corpus should be limited to petitioners who
can prove actual innocence. That was a misstatement of the law in
contradiction to Supreme Court precedent. He further stated that,
``[i]t is the fundamental responsibility of government to protect the
weak from the strong, but it is also a fundamental responsibility of
government to protect the meek from the mean--the law-abiding from the
law violating.'' He cited no legal precedent for this apparently
personal view that society's natural law rights to be free from crime
override the specific protections contained in the Bill of Rights.
In Drennan v. Hargett, a 1994 case over which Judge Pickering
presided, a habeas corpus petitioner claimed that he had been denied
access to the courts and received ineffective assistance of counsel. He
had pleaded guilty to a charge of capital murder at age 15 and received
a life sentence. He claimed that his attorney had threatened him with
the gas chamber if he did not plead guilty and that his lawyer did not
make important motions, such as a motion to suppress his confession
under Miranda. He also claimed that he did not know how to obtain
relief from the courts for several years because of his youth and
because his representatives misled him. Judge Pickering denied the
claim, and devoted a third of his opinion, three pages of a nine-page
opinion, to arguing that habeas corpus should not be allowed unless a
petitioner can prove actual innocence. In this unusual opinion, he
cited the ninth and tenth amendments, the Preamble to the Constitution
and the Declaration of Independence in support of his views, adding
that he believes the Bill of Rights is in tension with the preamble on
this point. Again, he cited no legal precedent for these odd and
extremely personal views, almost entirely unrelated to the controlling
law.
And in Washington v. Hargett, a 1995 habeas corpus case, Judge
Pickering rejected the plaintiff's request for DNA testing required to
prove his actual innocence, but stated that an attempt to prove actual
innocence was, ``the only reason why this Court or any other federal
court should be considering a petition for habeas corpus,'' so long
after the trial. While that may be Judge Pickering's personal opinion,
it is undeniably contrary to Supreme Court and statutory law. They
state that a prisoner petitioning for a writ of habeas corpus is
contesting the legality of his detention. The Supreme Court explained
as much two years before Judge Pickering decided this case.
Interestingly, whatever the answer to that question, in the same case
where Judge Pickering declared the importance of actual innocence, he
denied a petitioner the only thing that could have possibly proved
his--a DNA test. It was in that case of Washington v. Hargett that
Judge Pickering summarily rejected the plaintiff's motion for a DNA
test in order to prove his claim of innocence. The case involved a rape
that occurred in August 1982, before DNA was generally available and
accepted in the courts. Yet the judge suggested in his opinion that DNA
testing was inappropriate simply because the request came in 1995--13
years after the trial. As he put it:

Plaintiff had a fair criminal trial. He was, and is,
entitled to nothing more. He was not entitled to a perfect
trial. No such trial can be held. Plaintiff states that he
wants DNA testing now thirteen years later. He wants a new
trial. A new trial, now, 13 years later, would be much less
reliable than the one that occurred 13 years ago.

As Judge Pickering may well know, over the last decade, post-
conviction DNA testing has exonerated well more than 100 people,
including 11 who were awaiting execution.
I have introduced legislation that would, among other things, afford
greater access to DNA testing by convicted offenders. Senator Hatch and
Senator Feinstein have also introduced bills to promote the use of DNA
testing in the post-conviction context. In recent weeks I joined with
Chairman Hatch and others in introducing a bill drawn from these
earlier efforts. Attorney General Ashcroft has stated that ``DNA can
operate as a kind of truth machine, ensuring justice by identifying the
guilty and clearing the innocent.'' Judge Pickering appears in this
case to have created an exception to his own oft-expressed view that
habeas corpus should be considered would be to establish actual
innocence.
I have asked in a number of different cases and areas of the law
whether Judge Pickering was unaware of the law in different areas or
whether he was trying to impose his own views in spite of the law.
Another area of great concern to me--Judge Pickering's intervention on
behalf of a convicted criminal--raises this same fundamental question.
In this 1994 case, United States v. Swan, Judge Pickering presided
over a case brought against three people accused of burning a cross on
the lawn of an interracial couple. Two of the defendants, one a
juvenile and the other with significant mental disabilities, accepted
plea bargains offered by the prosecution. The third, Daniel Swan, the
only competent adult of the three, was also offered a plea up to the
last minute, but chose to go to trial, and was convicted of all three
counts brought by the Government. The story of what happened next is
what troubles me about Judge Pickering.
But before I get to that, I think it is important for us to
understand exactly what the facts were in the case. From the trial
transcript we know that on a night in early January of 1994, three
young men hanging out and drinking in front of a convenience store got
the idea to go and burn a cross on the lawn of a local family where the
husband, Earnest Polkey, was a white man, and his wife, Brenda, was
African American. Testimony at trial shows that two of the defendants,
Jason Branch, who was at the time a juvenile, and Daniel Swan, a
competent adult, were the moving forces behind this idea. The third
man, Mickey Thomas, had a very low IQ and mental difficulties. It
really

[[Page S13568]]

was Branch and Swan who referred to the Polkey family using awful
racial slurs, and together they cooked up this idea.
After deciding what they would do, they moved into action, and using
Daniel Swan's pickup truck, his wood, his nails, his gasoline and his
lighter, the three men constructed a cross, took it to the Polkey's
front lawn, leaned it up against a tree, and lit it on fire.
Not long afterward, the three were caught by the FBI and all three
were charged with the identical counts: 18 U.S.C. 241, conspiracy to
deprive victims of their civil rights, 18 U.S.C. 3631(a), intimidation
on account of race, and 18 U.S.C. 844(h)(1), the use of fire in the
commission of a felony. All three were also offered a plea bargain
which would result in little or no jail time, and two of them took the
offer. Two of them, Jason Branch, the minor, and Mickey Thomas, who has
a mental disability, took the deal. They decided not to roll the dice
with a jury, and to admit their responsibility for the crime. These
kinds of deals happen every day. They permit the justice system to
function, and they offer defendants opportunities to admit their guilt.
One of the defendants, Daniel Swan, didn't take the offer. Instead,
Mr. Swan, who had boasted to friends before he was caught that he would
never do any time even if he was caught, decided to take his chances in
front of a jury. Well, it was not a wise decision for Mr. Swan, because
once the jury heard the evidence that I recounted earlier, they
convicted him on all counts. And that is where Judge Pickering's
unethical behavior comes in.
Instead of doing what the law required of him and sentencing Daniel
Swan to at least the congressionally required mandatory minimum
sentence of 5 years for his conviction of the use of arson in a felony,
he started to act like one of Daniel Swan's defense attorneys and to
advocate for him, insisting that the Justice Department drop the arson
charge so Swan could get a more lenient sentence.
Why would the Government drop a charge after having secured a
conviction in such a terrible hate crime? Why would the prosecution
agree to imposition of such a reduced sentence for someone already
found guilty by a jury of his peers? According to documents that the
Department of Justice produced to the committee only minutes before
Judge Pickering's second hearing was to begin, and documents that they
agreed to make public in a heavily redacted form a week after that,
Judge Pickering made them an offer that they could not refuse. He
threatened them. He threatened them with bad law--with a decision that
would have called into question the applicability of the arson charge
to cross burnings. And he threatened to make--and presumably grant his
own motion for a new trial for Mr. Swan--a motion for which there would
have been no basis in law.
He badgered them, ordering them in extraordinary terms to consult
personally with the Attorney General, to report on all prior Justice
Department prosecutions for cross burnings, and to agree to dismiss an
already secured conviction, in the face of the fact that the law did
not permit the result he sought. And when the prosecutors, career
assistants in the United States Attorneys Office and career prosecutors
in Washington, refused to cave in to his bullying, Judge Pickering took
things a step further, and he called an old friend, then in a high-
ranking position at the Department of Justice. As he admitted in a
letter to me and in testimony at his second hearing, Judge Pickering,
unhappy with the answer he was receiving from those prosecuting the
case, called the Assistant Attorney General for the Civil Division, a
friend of long standing from Mississippi, to, as he explained it,
express his frustration with the prosecutors. Judge Pickering insisted
in his testimony to the committee that he did not ask his old friend to
do anything or take any action but he did not deny the contact.
This sort of contact with the Department of Justice during a pending
case is extremely troubling. These sorts of ex parte contacts are
expressly prohibited by every code of conduct and canon of ethics ever
written, and for good reason. The credibility of our entire system of
justice rests on the presumption that the conduct of every trial,
criminal or civil, is fair and above board, and that no one side has
any real or perceived advantage. Judge Pickering's phone call and
actions undermine that assumption in very disturbing ways.
Judge Pickering and his defenders in this matter will tell you that
he intervened in this case not because he took pity on Daniel Swan, a
convicted hate criminal, but because he was concerned about the
disparity among the sentences handed down to the three offenders. He
blamed the Government for agreeing to lower sentences for the two
parties who pleaded guilty and then ``recommending,'' as he
inaccurately puts it, a higher sentence for the party who took his
chances with a trial. He tried to give the impression that upon the
sentencing for Mr. Swan he was surprised to learn about certain aspects
of the crime and the defendants' behavior in them. But it is clear,
upon examining the record, that none of the defendants was sentenced
until after Mr. Swan's trial, until after all the testimony about their
actions and relative culpability had been revealed in sworn public
testimony. Judge Pickering is the one who sentenced all these
defendants after having presided over the case.
Moreover, I know of no other criminal cases in which Judge Pickering
intervened based on a concern about disparate sentencing or another
case in which he took action to avoid imposing a sentence based on a
statutory mandated minimum. His defenders will point to a few cases
where he properly showed leniency within the law, but they are
different from this one. In those cases it is clear he had the legal
discretion to reduce sentences, but those advocating this nomination
can point to no specific legal justification here.
The law has very real consequences, as this letter from Mrs. Brenda
Polkey makes clear. It was sent to me last year when I was Chairman of
the Committee. Mrs. Polkey says:

My now-deceased husband, Ernest Polkey, and I were the
victims of a cross-burning at our home in Improve,
Mississippi in 1994. We had purchased the home in Southern
Mississippi while I was still active military and my husband
had retired from the military. The cross-burning case was
prosecuted by the Justice Department in Judge Charles
Pickering's court.
I write to express my profound disappointment in learning
of Judge Pickering's actions toward the defendant, Daniel
Swan. As you can imagine, my family suffered horribly as a
result of the conduct committed by Mr. Swan and the two other
defendants. My daughter actually saw the cross in our yard
the morning of the incident. I still have a photograph of the
cross that I took that morning to make sure that the crime
was documented properly.
The trial of Daniel Swan was extremely emotional for me and
my family. As a native Southerner, I had grown up in the
1960's with violent acts based on race, and I lost a member
of my family due to a racial killing. I never imagined that
violence based on racism would come my way again in the
1990's. We helped in the prosecution of the case, and I
testified at the trail. The local NAACP gave me a certificate
for my role in pursuing the case.
I experienced incredible feelings of relief and faith in
the justice system when the predominantly white Mississippi
jury convicted Daniel Swan for all three civil rights crimes.
I had hoped against hope that the jury would do the right
thing and convict Mr. Swan of this horrible deed. The jury
came to a guilty verdict on all three counts after only two
hours.
My faith in the justice system was destroyed, however, when
I learned about Judge Pickering's efforts to reduce the
sentence of Mr. Swan. I cannot begin to explain what his
actions have done to my longstanding opinion that we were
correct in helping to prosecute the case, in trying to
bring about justice and in trying to prevent hate crimes
from being committed against other persons. I am
astonished that the judge would have gone to such lengths
to thwart the judgment of the jury and to reduce the
sentence of a person who caused so much harm to me and my
family.
I am very much opposed to any effort to promote Judge
Pickering to a higher court. Respectfully yours, Mrs. Brenda
Polkey.

When I raise questions about this case and Judge Pickering's
involvement in the case and suggest it violates every Canon of Judicial
Ethics, it is not just my opinion. It is the opinion of some of the
Nation's foremost legal scholars on judicial ethics. Let me read to you
what some of them have said. Professor Stephen Gillers of the New York
University School of Law, one of the foremost, if not the foremost,
legal ethics experts in the country, told Senator Edwards after Judge
Pickering's hearings: ``Judge Pickering exceeded

[[Page S13569]]

his powers as the trial judge in the Swan case in a way that undermined
decisions of the political branches of government. He then sealed the
Order that would have fully revealed his actions.''
The professor concludes that this is a violation of Canon 2A and
3A(1) of the Code of Conduct for U.S. Judges because of his failure to
respect and comply with the law or to be faithful to the law. He
substituted his judgment not only for the judgment of the prosecutors,
but also for the judgment of the legislators, this Senate and the
House, instead of sticking to his role as a judge. And by sealing the
order that revealed his position, he made certain that no judicial
review of his actions could occur.
Professor John Leubsdorf, legal ethics professor and Judge Lacey
Distinguished Scholar at Rutgers Law School, agreed with Professor
Gillers. Professor Leubsdorf, who has been studying and teaching Legal
Ethics for 25 years, has taught at Columbia, Cornell, and the
University of California-Berkeley's law schools, and has published
articles in the Harvard, Yale, Stanford, Texas, NYU, Pennsylvania,
Minnesota, and Cornell law reviews, could not have been clearer. After
reviewing the judge's actions, he concludes that, ``[w]hatever Judge
Pickering's motives may have been, this was no way for a judge to
behave,'' and that he ``cannot escape the conclusion that Judge
Pickering departed from his proper judicial role of impartiality in the
Swan case to become an advocate for the sentence he considered
proper.''
Steven Lubet, a Professor of Law at Northwestern University Law
School, director of the law school's Program on Advocacy and
Professionalism, and the author of numerous articles on legal ethics,
reached much the same conclusion. He tells us that, ``Judge Pickering's
actions raise serious questions under the Code of Conduct for United
States Judges. In particular, it appears that Judge Pickering initiated
a prohibited ex parte communication in violation of Canon 3A(4),'' and
that his, ``extended efforts to reduce Swan's sentence for cross
burning appear to have compromised his impartiality, taking him nearly
into the realm of advocacy, thus implicating Canons 2A and 3A as
well.''
The ethics concerns raised by the judge's behavior in the cross
burning case are not the only ethical problems Judge Pickering's
nomination presents. There is also the very serious matter of his
having solicited letters of support and having asked to review them
before forwarding them to the Justice Department and to the Senate. As
Professor Gillers for NYU explains, this is a matter of grave concern.
The letter, which has been made a part of the record, recounts the
various Canons of the Code of Conduct for U.S. Judges implicated by
this behavior, and is just another reason why I cannot approve of Judge
Pickering's elevation.
I should note that Judge Pickering's behavior in this matter is
similar to that of a nominee from more than 20 years ago, Charles
Winberry. Nominated to the U.S. District Court in North Carolina by
Democratic President Jimmy Carter, Mr. Winberry's nomination was
defeated in the Judiciary Committee in 1980. Among the grounds on which
I opposed this nomination, sent to the Senate by a President of my
party, were my objections to Mr. Winberry's having solicited letters
from lawyers who would be appearing before him, if he were confirmed,
and for asking for blind copies of those letters.
The increasing frequency of nominees campaigning for confirmation to
the federal bench is a troubling development and one that threatens the
very independence of our judiciary. I was concerned about it in 1980
and I remain concerned about it in 2002.
During the course of these proceedings, some have falsely contended
that Democratic Senators have called Judge Pickering a racist. That did
not happen and that criticism is a smokescreen to obscure the real
problems with this nomination. I attended the committee hearings on
this nomination and witnessed Democratic Senators asking questions and
the nominee being given opportunity after opportunity to make his best
case for elevation to the Fifth Circuit. Some have even insinuated that
Senators who oppose this nomination are anti-Southern or anti-
Christian, a smear that is as wrong as it is ugly. The talking points
distributed by the other side are partisan, political and intentionally
misleading. They have been accepted and repeated by some who have
failed to review the record. That is unfortunate.

I think the nominee's past views and actions during a difficult time
in Mississippi's history were not irrelevant, but I based my decision
on his years on the bench and the record amassed and reviewed at our
hearings.
So let me sum up for my colleagues what Judge Pickering's own record
makes clear. Judge Pickering's record is replete with examples of bad
judging and is littered with cases that demonstrate a misunderstanding
of the law in many crucial and sensitive areas. Judge Pickering's
record shows a judge inserting his personal views into his judicial
opinions and putting his personal preferences above the law. It is a
record that does not merit this promotion to one of the highest courts
in the land. Based on Judge Pickering's record, I will vote against
invoking cloture, and should cloture be invoked, I will vote against
this nomination.
If Judge Pickering's nomination is not ultimately successful, he will
nonetheless remain a Federal judge of the Southern District of
Mississippi with life tenure. He will be responsible for presiding over
cases and determining matters central to the lives and well-being of
many people in Mississippi and from elsewhere. He has served as a
prosecutor, a State legislator, a local leader, and now as a Federal
judge.
The oath taken by Federal judges is a solemn pledge to administer
justice fairly to those who come before the court seeking justice. It
extends to those who are rich or poor, white or black, Republican or
Democrat, without regard to gender or sexual orientation, national
origin or disability.
Judge Pickering remains a very important and powerful person in
Mississippi. I understand that he may be the only Federal judge who
sits in Hattiesburg. The judge's ability faithfully to discharge the
duties of the office are important every day, on every case, with
respect to every claim and regarding every litigant. I bear him no
malice and wish him and his family well.
Parliamentary inquiry: How much time remains for the distinguished
Senator from Utah and myself?
The PRESIDING OFFICER. Each side has 7\1/2\ minutes.
Mr. LEAHY. Mr. President, I will yield 3 minutes to the distinguished
senior Senator from Massachusetts in just a moment.
I would hope, after this debate, we might start debating judicial
nominees based on the facts and not on some of the innuendoes we have
heard.
Mr. President, before I yield, I understand that again we are
reserving the last 5 minutes for the distinguished senior Senator from
Mississippi; is that correct?
The PRESIDING OFFICER. That is correct. You asked for 5 minutes, but
you will not have 5 minutes after allotting the 3.
Mr. LEAHY. I understand. I thank the distinguished Presiding Officer,
who is, after all, a model of propriety and fairness.
I yield 4 minutes to the Senator from Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I oppose the nomination of Judge Charles
Pickering on his record. I want to be absolutely clear about that.
Charles Pickering has a disturbing record as a U.S. district court
judge that simply does not qualify him for appointment to the Fifth
Circuit. He has often been hostile to plaintiffs bringing civil rights
claims, he has questioned the value of important constitutional
protections such as ``one-person, one-vote,'' and he has tried to
restrict habeas corpus. His cases are filled with dicta and with
expressions of his own personal opinion. This all calls into question
his ability to enforce statutory and constitutional protections and his
judicial temperament.
The States of the Fifth Circuit are among the poorest in the Nation.
They have a population that is 42 percent minority--the highest of any
circuit. For many years, the Fifth Circuit had a critical role in the
Nation's history in applying and interpreting the civil rights laws.
Not long ago, the circuit was hailed for its courage in protecting

[[Page S13570]]

the civil rights of African Americans. When Congress passed the 1964
Civil Rights Act and the 1965 Voting Rights Act, many State and local
governments in the South resisted these measures. Federal judges such
as Elbert Tuttle, Frank Johnson, and John Minor Wisdom helped to make
the promise of equality a reality by enforcing these landmark laws of
our time. It is particularly important that a judge appointed to this
court have a commitment to civil rights, to the constitutional
safeguards that protect all Americans, and to the rule of law.
I am disturbed by the rhetoric I have heard today that those of us
who oppose this nomination are a ``lynch mob.'' This rhetoric is a
profoundly cynical misuse of race and disregards the lessons that we
should all have learned from history. Those who cannot tell the
difference between a mob bent on murder and torture of an innocent
individual solely because of the color of his skin, on the one hand,
and those of us in the Senate who seek to focus on genuine issues in
Judge Pickering's record, on the other hand, needs a serious history
lesson. Frankly, such a comparison is not only unfair, but it does an
injustice to those African Americans who suffered and died at the hands
of real lynch mobs in the South, including in the State of Mississippi.
This is not a lynch mob, this is reasoned debate, and it is part of our
constitutional role of advice and consent to engage in such debate.
Judge Pickering's troubling record on civil rights and his injection
of his personal opinion can be seen in his extraordinary intervention
on behalf of a cross-burning defendant. Pickering repeatedly pressured
the Federal Government to drop a charge against a convicted cross-
burner to avoid having the defendant serve a congressionally mandated
5-year minimum sentence. Pickering went so far as to threaten to order
a new trial, and to initiate an ex parte communication with a high-
ranking official of the Justice Department while the case was pending
before him. Three ethics experts have written Senator Edwards stating
that this conduct violated the Code of Judicial Conduct.
I have spent a great deal of time thinking about this case, and I
have come to the conclusion that Judge Pickering's efforts to reduce
the defendant's sentence of a convicted cross-burner in United States
v. Swan cannot be justified by the fact that other participants in the
cross-burning received lesser sentences.
The other two participants in the cross-burning pled guilty and
therefore were not subject to mandatory minimum sentences. Mr. Swan was
tried and found guilty of a crime that has a mandatory minimum
sentence. This eliminated any sentencing discretion Judge Pickering
might have had under the law. Thus, this case raises the question of
whether Judge Pickering will follow the law even if he does not agree
with it.
Mr. Swan was an adult of average intelligence at the time of the
crime. By contrast, one of the other participants was severely limited
in intelligence, with an IQ of 80, and the other was a juvenile. Thus,
Mr. Swan arguably bore greater responsibility for the hate crime.
Finally, the materials used to build the cross, the gasoline used to
douse it, the truck used to transport it, and the lighter used to
ignite it all belonged to Mr. Swan.
The PRESIDING OFFICER. The Senator has used 4 minutes.
Mr. LEAHY. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. Two minutes.
Mr. LEAHY. I yield the 2 minutes to the Senator from Massachusetts.
Mr. KENNEDY. Judge Pickering has a duty to follow the law and the
canons of judicial ethics whether or not he agrees with them. His
failure to do so in this recent case cast doubt on whether he would do
so if confirmed to the Fifth Circuit.
In a letter to Senator Hatch, Judge Pickering admitted that he has
departed downward from other mandatory minimum sentences only when the
Sentencing Guidelines allowed an exception.
I have heard some say that the fact that some black Mississippians
may support Judge Pickering should be enough to have him confirmed.
Many black Mississippians, including those from organizations
representing thousands of African Americans in Mississippi have come
out against Judge Pickering. The State's major African American Bar
Association--the Magnolia Bar Association--has written a letter to the
Committee opposing Judge Pickering. He is also opposed by Eugene
Bryant, President of the Mississippi State Conference of the NAACP,
which represents one hundred chapters of the NAACP.
Democrats have not smeared Judge Pickering's reputation by examining
his record. Judge Pickering has a complex legacy. On the one hand, he
testified against the KKK and has spoken in favor of racial
reconciliation. On the other, he has opposed civil rights laws, and the
concept of ``one-person, one-vote'' under the Voting Rights Act.
Democrats on the Judiciary Committee have never said that he is a
racist. But the committee has to determine what sort of judge he will
be, not what kind of neighbor he is or the nature of his historical
legacy. His 12 years as a district court judge provide us with a clear
record that he is unwilling to apply or respect the law when he
disagrees with it, and I will vote against his nomination.
Mr. HATCH. Mr. President, how much time do I have?
The PRESIDING OFFICER. The Senator from Utah has 7 minutes 29
seconds, with 5 minutes being reserved for the Senator from
Mississippi.
Mr. HATCH. Is that all the time left on either side?
The PRESIDING OFFICER. That is correct.
Mr. HATCH. Mr. President, I have heard my distinguished friends on
the other side say we have approved 167 judges but have rejected only 3
with a filibuster. Actually, that is a little bit of an untruth because
Miguel Estrada was filibustered and, of course, withdrawn. Priscilla
Owen is presently being filibustered. Carolyn Kuhl, there is a
threatened filibuster on her. These are all circuit court of appeals
nominees. William Pryor has already been filibustered. Charles
Pickering is being filibustered. This is a cloture vote to determine
whether we can even have the dignity of an up-or-down vote.
Leon Holmes has been threatened with a filibuster. Janice Rogers
Brown has been threatened with a filibuster. Claude Allen has been
threatened with a filibuster.
The fact is, we have never had a filibuster before in the history of
the Senate, in the history of this country, with regard to judicial
nominees.
I have heard a lot of comments about what a nice man Judge Pickering
is and all of this; it is the record they disagree with. This is a man
who has been on the bench for a long time, and he would be a rare
person if you didn't find one or two cases with which you disagree. I
have to say that in all honesty, most of these arguments they have made
are smokescreen issues and arguments.
Mr. LEAHY. Will the Senator yield for a question?
Mr. HATCH. I can't right now because I have a limited time.
Every one of them can be answered. Let me tell the principal reason
behind this. After we voted Judge Pickering out of the committee a few
weeks ago, we held a press conference. One of the people who appeared
with us at the press conference was one of the leading civil rights
ministers of the South, former head of the ACLU in Mississippi, really
one of the most respected people in the civil rights cause. His life
had been threatened. He came and spoke fervently for Judge Pickering.
Before he did, I got up and I said: This is all about abortion.
After he spoke, he came up to me and he said: Senator, as you know, I
am pro-choice, but you are absolutely right. This is all about
abortion. Let me make that case by putting up this chart, the National
Abortion Rights Action League.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. HATCH. I ask unanimous consent for 30 seconds for each side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. The National Abortion Rights Action League, Pro-choice
America sent this out to everybody they could: ``Urge your Senators to
stop anti-choice nominee Pickering'' because they know he is pro-life,
even though he has agreed he will abide by the law. He will abide by
Roe v. Wade.

[[Page S13571]]

He will abide by the other abortion cases. That is what this is all
about. Frankly, I have it on impeccable information that that is what
this is all about.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. I am sorry the Senator from Utah was unwilling to yield
for a question. He mentioned a threatened filibuster on Mr. Holmes. I
assure him, we have cleared Holmes on our side. The Republicans could
bring him up any time they want. There is no filibuster being
threatened over here. I don't know why they don't bring him up. Gary
Sharpe of New York, I don't know why they don't bring him up. These are
judges they could bring up any time they wanted. They have been cleared
for a vote on this side. We may vote for or against them. But Mr.
Holmes is not being filibustered. That is a mistake on the part of the
Senator from Utah.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. COCHRAN. Mr. President, Charles Pickering has been subjected to
the most intense and thorough scrutiny that I can remember any judicial
nominee enduring since I have been in the U.S. Senate. After all of his
opinions as a United States district judge have been read and reread
and dissected, this is what the record shows.
In 13 years on the Federal bench, he has demonstrated a sense of
fairness and good judgment that has reflected credit on the Federal
judiciary. He has become known throughout our State as someone who is
above reproach, who is totally honest and honorable, and who applies
the law without regard to race, creed, or ethnicity in an intelligent,
thoughtful, and sensible manner.
He is widely respected as a United States district judge. I have no
doubt that if confirmed by the Senate, he will serve with distinction
and dedication on the United States Court of Appeals for the Fifth
Circuit.
Before he became a Federal judge, Charles Pickering served ably in
the Mississippi State Senate and was the chairman of the Mississippi
Republican Party. He was elected county prosecuting attorney after he
had been engaged in the practice of law for only 2 years. When Charles
Pickering was nominated to serve on the U.S. District Court for the
Southern District of Mississippi in 1990, he was approved unanimously
by the Senate Judiciary Committee. And he was confirmed unanimously by
the U.S. Senate.
As U.S. district court judge, he has become one of the highest rated
judges in the Nation. Judge Pickering has received the highest rating
from the American Bar Association. He has a lower reversal rate than
both the national and Fifth Circuit average. Mr. President, 99.5
percent of his cases have been affirmed or not appealed. Of those cases
that have been appealed, Judge Pickering has only a 7.9-percent
reversal rate, which is 20-percent lower than the national average of
the Department of Justice, and two times lower than the average
district court judge in the Fifth Circuit.
He has been endorsed by the current president and the past 17
presidents of the Mississippi State Bar. He is endorsed by all of the
major newspapers in Mississippi. He has also been endorsed by all of
our State government officials who were elected statewide, including
the Democrats who serve as Governor, attorney general, and secretary of
state.
The people who know Charles Pickering the best are the residents of
my State, and they overwhelmingly support his confirmation as a court
of appeals judge.
It is time to end this effort to discredit and demean this good man.
It is time for the Senate to do what is right and confirm this well-
qualified and honorable nominee.
The PRESIDING OFFICER. Has all time been yielded back?
The majority leader.
Mr. FRIST. Mr. President, on leader time, I wish to make a few
closing statements with regard to this vote and this nomination.
In a few minutes, we will have the opportunity to vote on whether
Judge Pickering, whom the Senate has once before confirmed to the
Federal district court without blemish, can be given the simple
fairness, the simple honesty of an up-or-down vote or whether he will
be denied that fairness.
The vote matters to many people because none of the President's
judicial nominees has suffered more indignities and distortions than
this superbly qualified man, Judge Pickering.
Others in the past and over the course of the morning have spoken
much more ably about the qualifications with regard to this superbly
qualified individual, Judge Charles Pickering.
I know the passion of the two Mississippi Senators from whom we just
heard. We heard Senator Lott speak about this man, and we heard the
strong support from Mississippi Senator Thad Cochran for this nominee,
and we know of the hard work of the chairman of the Judiciary
Committee, Chairman Hatch--all of whom have worked so hard to bring
this nomination to the floor over the last 2\1/2\ years since he was
first nominated by President Bush--again, 2\1/2\ years ago.
It had always been my hope over the last 10 months since I became
majority leader that we would be able to put much of the unfortunate
history of the 106th Congress behind us when it came to judicial
nominations. By that, I refer to the inaction on nominees in committee
to their outright defeat in committee which denied the opportunity for
all Senators to exercise the constitutional responsibility of advise
and consent, and the ability and opportunity to vote up or down on
judicial nominations. I think we have made huge progress over the
course of this year in that regard, thanks to Chairman Hatch.
While in many ways we closed that chapter of Senate history, a new
chapter has opened and, once again, I believe we will see it today, and
that is this unprecedented use of the partisan filibuster in the Senate
to deny Senators the opportunity and the ability to have an up-or-down
vote to speak clearly, and the way we have the power to do that is
through our votes, either for a judicial nomination or against a
judicial nomination.
What bothers me as majority leader is what that says about our
institution and about the future of this institution. Many of us have
spoken to this and have warned over the past several months about the
dangers of departing from this 200-year history of the Senate, that
tradition of precedent from which all of a sudden we are seeing this
departure over the course of this year.
Today, in just a few minutes, once again we have a choice, an
opportunity to move ahead and make progress and to discharge that
constitutional responsibility of an up-or-down vote. This is not only a
vote to decide whether the Senate will say yes or no to a man who, as
we all know, is perfectly qualified, a good man, a man of high
integrity and character, an able jurist who we all know will bring
credit to the Federal appeals court.
To vote yes on cloture, in my view, is the latest referendum on
whether or not we want to reaffirm our history in this body, the
Senate, whether or not we want to shut this new chapter of
unprecedented delay and destruction, whether or not we want to return
the Senate to the well-worn path that it has tried over the last 200
years but from which over the course of this year we seem to be
deviating, a path of men and women coming to this body and by their
vote being able to take direct responsibility of either confirming or
rejecting a nomination.

I represent the State of Tennessee. Right now I represent my party as
Republican leader. In addition, I, as majority leader, believe I have a
responsibility to this entire body. Together we look to the past and we
build for the future. I appeal once again to my colleagues to remember
the history we have as stewards, as servants to this institution; that
we remember the responsibilities charged to us by the Constitution,
responsibilities of advise and consent, and vote aye on cloture, and
then vote up or down but vote one way or another on the nomination of
Charles Pickering. To do any less than that does fail the history we
have had the privilege to recognize and be part of. Indeed, it adds one
more obstacle to the progress we could make as we go forward.
Finally, it does ensure that with this new course foisted on the
Senate, we will have to meet that radical departure from 200 years of
history with responses that will reestablish a more regular order of
action in the future.

[[Page S13572]]

Mr. President, I close by simply saying I urge our colleagues to
support an opportunity for an up-or-down vote--that is all we ask--on
Judge Charles Pickering.
The PRESIDING OFFICER. All time has expired.
Mr. REID. Will the majority leader yield for a question not related
to the Pickering nomination?
Mr. FRIST. Through the Chair, I will be happy to yield.
Mr. REID. Mr. President, we were originally going to have a vote on
the global warming issue. It would have been about 12:45 p.m. This will
necessitate that vote occurring around 1:15 p.m., but under the regular
process here, on Thursdays we do not vote during the hour of 1 p.m. to
2:15 p.m. I wonder if the leader will be able to at this time indicate
that the managers of the Healthy Forests issue should be here about
1:15 p.m., or thereabouts, so they can start on that issue prior to
voting on the global warming issue, which I hope can occur at 2 o'clock
because there are a number of people on our side who need to vote on
that. I hope the leader understands what I am saying.
Mr. FRIST. Mr. President, I do. Let me talk to the managers before
actually agreeing to anything. I have not talked with them about the
scheduling. Before committing to a schedule, let me make an
announcement right after this vote.
Mr. LOTT. Mr. President, has all time expired?
The PRESIDING OFFICER. All time has expired.
Mr. LOTT. Mr. President, I ask unanimous consent that the cloture
vote be vitiated and that the Senate immediately proceed to a vote to
confirm the nomination of Judge Charles Pickering to the Fifth Circuit
Court of Appeals.
Mr. REID. I object.
The PRESIDING OFFICER. Objection is heard.

Cloture Motion

The PRESIDING OFFICER. By unanimous consent, pursuant to rule XXII,
the Chair lays before the Senate the pending cloture motion, which the
clerk will report.
The assistant legislative clerk read as follows:

Cloture Motion

We the undersigned Senators, in accordance with the provisions of
rule XXII of the Standing Rules of the Senate, do hereby move to bring
to a close debate on Executive Calendar No. 400, the nomination of
Charles W. Pickering, Sr., of Mississippi, to be United States Circuit
Judge for the Fifth Circuit.

Bill Frist, Orrin Hatch, Trent Lott, Conrad Burns, Lamar
Alexander, Arlen Specter, Mitch McConnell, Mike DeWine,
Chuck Hagel, Rick Santorum, Craig Thomas, Thad Cochran,
John Ensign, Lindsey Graham, Elizabeth Dole, Michael B.
Enzi, Gordon Smith.

The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Charles Pickering, Sr., of Mississippi, to be United
States Circuit Judge for the Fifth Circuit shall be brought to a close?
The yeas and nays are mandatory under the rule. The clerk will call the
roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from North Carolina (Mr.
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily
absent.
I also announce that the Senator from Nebraska (Mr. Nelson) is absent
attending a family funeral.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``nay.''
I further announce that, if present and voting, the Senator from
Nebraska (Mr. Nelson) would vote ``yea.''
The PRESIDING OFFICER (Mr. Ensign). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 54, nays 43, as follows:

[Rollcall Vote No. 419 Ex.]

YEAS--54

Alexander
Allard
Allen
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Chafee
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Voinovich
Warner

NAYS--43

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Graham (FL)
Harkin
Hollings
Inouye
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden

NOT VOTING--3

Edwards
Kerry
Nelson (NE)
The PRESIDING OFFICER. On this question, the yeas are 54, the nays
are 43. Three-fifths of the Senators duly chosen and sworn not having
voted in the affirmative, the motion is rejected.

____________________