[Congressional Record (Bound Edition), Volume 148 (2002), Part 3]
[Senate]
[Pages 3267-3269]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    NOMINATION OF CHARLES PICKERING

  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, one of our colleagues earlier, in 
talking about the Pickering nomination, talked about the difficulty of 
making judgments. Of course, that is what they pay us to do. It is 
sometimes difficult. But what is really important for us to be sure of 
is that the judgment we make is our own, independent judgment, made 
with integrity, and not influenced by unfair charges or pressure from 
groups outside the Senate.
  I think a nominee is entitled to that. If charges are made against a 
nominee, we ought to hear about them. We ought to find out if they are 
correct. Maybe delay the vote and have another hearing, if that is what 
is required, so be it. But when the nominee can show that the charges 
against him in case after case after case after case are not justified 
charges, and there are perfectly good and sound reasons for the actions 
he has taken, that his words are being taken out of context, outside 
the normal bounds of any kind of fair criticism, when he can explain 
that in matter after matter after matter that the

[[Page 3268]]

charges are untrue, I believe the members of the Senate Judiciary 
Committee ought to listen to that. Senators should not allow friends 
from the outside, who have an agenda and a commitment to defeating a 
nominee who they have picked as the person they want to go after, to 
control the situation and, in effect, cast a vote in these matters. 
That is what I am concerned about.
  Judge Pickering came before our committee. He was a superb witness. 
He testified with integrity, with skill, with understanding. He is a 
man I believe the committee related to well. I was very impressed with 
his testimony, his whole history as a lawyer and as a judge and as a 
human being. I thought, what a wonderful presentation he made. But it 
seemed not to have changed a single vote.
  When point A was knocked down, we would go to point B, and when that 
was knocked down, to point C. Finally, we ended up with the most weak 
excuses, weak reasons that I do not believe rise to the level, in any 
way, that would justify rejecting this fine man.
  He finished No. 1 in his law class at the University of Mississippi 
School of Law, an excellent school of law. He decided to go back home 
where his family were farmers, in the dairy business, in Laurel, MS.
  Some suggested he did a lot of things in the past, in the 1960s, of 
which he wasn't proud. They said over and over again, with great 
unctuousness: We don't think he's a racist. We are not saying he's a 
racist. But he is a southerner, you know, from Laurel. We have some 
complaints up here in Washington about him.
  What did his record look like? In the 1960s, things were not easy in 
Laurel, MS. Having grown up in the rural South, I know that. I know a 
lot of people made choices they are very greatly disappointed that they 
made, many years ago. A lot of us should have been more alert to 
fighting more aggressively for civil rights than we were. I was in high 
school in those years and I remember the debates that came about. I 
know how deeply the passions and feelings were running.
  In Laurel, there was a trial of a Klansman who was involved in a 
murder. Judge Pickering, in the 1960s, signed a warrant for his arrest 
in that murder.
  Another case involved a head of the Ku Klux Klan in that area. It was 
a tense case in a tough time. Something needed to be done to send a 
signal to that jury that good men and women, in Laurel, MS, knew that 
he ought to be convicted of the crimes he committed.
  Judge Pickering volunteered and testified as a character witness 
against that defendant, saying that he had a bad reputation for 
violence in the community. Nobody, I am sure, relished having to do 
that task at that time. Sure enough, the next election, he lost that 
election. And the Klan bragged that was the reason, that they got the 
man who went against them.
  That is his background. He has a superb legal mind. He finished at 
the top of his class at the University of Mississippi. A man, faced 
with difficult times, was on the right side of the issue.
  We had Charles Evers, the brother of Medgar Evers, the slain civil 
rights worker in Mississippi visit members of the Judiciary Committee. 
He came up here on Judge Pickering's behalf and spoke strongly and 
passionately for him. As did an African-American judge. As did others 
who came. By the way, I think 26 out of 26 living Presidents of the 
Mississippi Bar Association endorsed Judge Pickering. But this group 
came here. I asked them, each one of them: During the 1960s and into 
the 1970s, when civil rights was really a matter of some courage in the 
South, was Judge Pickering on the good guys' side or the bad guys' 
side? They all said he was on the right side. He was on the good guys' 
side. He took actions to reach out and to build harmony and he believed 
that is important.
  He, in fact, serves now as co-chairman--or did until recently--with 
former Governor Winter, a Democrat of Mississippi, on the Ole Miss 
Commission to Promote Racial Harmony. He was chosen to be co-chairman 
of that commission.
  Oh, but they say we didn't accuse him of being a racist. He is 
hostile to employment cases. So Senators Hatch and DeWine went through 
all the employment cases that he dealt with, delineated the two, I 
believe, that were reversed on matters unrelated to the merits, really, 
of employment cases. I also point out in the state of Mississippi, 
there are a group of lawyers who specialize in employment cases 
representing plaintiffs who sue to get their jobs back or for damages 
for mistreatment. The top plaintiffs' lawyer in Mississippi, who 
practiced before Judge Pickering many times, wrote an op-ed in the 
Mississippi paper. Not just a letter, he wrote an op-ed in the paper 
with his name on it, saying Judge Pickering should be confirmed; the 
plaintiffs' lawyer said that Judge Pickering is a fair man and that 
Judge Pickering treated employment cases fairly in court.
  Why would we want to even continue to talk about that issue after 
that matter is raised? But still people do.
  There were other complaints. They said he had asked lawyers to write 
letters on his behalf and that this somehow violated ethics. We had a 
professor who said this was ambiguous at best, and cited histories 
going back to Learned Hand, where judges got letters written on behalf 
of nominees. So I don't think that was the matter.
  They said he had them given to him. The Department of Justice asked 
him to collect the letters and have them sent up. The U.S. Department 
of Justice asked him to collect those letters and send them forward. It 
was during the time of the anthrax scare, when the mail was shut down. 
They wanted him to be sure to collect them all so they could be sent 
straight to the Department of Justice so they could be disseminated to 
those of us in the Senate who needed to know about it.
  I am, frankly, concerned for about the suggestion that there is an 
unfairness, or an excessive conservative bent on the Fifth Circuit 
Court of Appeals. The Fifth Circuit is one of the great circuits in 
America. It has consistently had some of the great judges in America. I 
just had the honor to participate in the swearing in of Ginny Granade, 
the granddaughter of Judge Richard Reeves on the old Fifth Circuit to a 
Federal judgeship in my hometown of Mobile. She worked for me for 12 
years when I was U.S. attorney there. She is one of the finest people I 
know. She has never been political in any way. She was confirmed and is 
now serving there. But the old Fifth Circuit and the Fifth Circuit 
today is a great circuit. It has a good record of being affirmed by the 
U.S. Supreme Court.
  We have had some concerns about the Ninth Circuit Court of Appeals, I 
will admit. I have raised that issue on occasion. One year the Ninth 
Circuit had 27 out of 28 cases that went to the Supreme Court of the 
United States reversed. Year after year--one year it was 13 out of 15. 
The Ninth Circuit has the highest record of reversals of any circuit in 
America by far. The Fifth Circuit is nowhere close.
  I opposed, I will admit, two nominees to the Ninth Circuit. But they 
were confirmed.
  I would have to add, however, that my concerns have been a bit 
validated in that Judges Paez and Berzon, the two I did vote against, 
those two judges on separate occasions have eviscerated and declared 
unconstitutional the ``three strikes and you are out'' law in the State 
of California which the State supreme court, which is not a 
conservative court had previously upheld.
  I will just note that was discretion. Perhaps there was a legal basis 
for those reversals of the important California habitual offender law. 
Maybe the law needs to be changed by the legislature. But judges ought 
to be reluctant to be whacking out long-established State law of this 
kind. I am interested in studying those cases.
  At any rate, I believe we had a good process in the last 8 years of 
President Clinton. In 8 years, 1 judge was voted down--1 judge was 
voted down in 8 years--and 377 judges were confirmed.
  When President Clinton left office, there were only 41 judges 
nominated and pending unconfirmed.
  When former President Bush left office, on the other hand, in 1992, 
there

[[Page 3269]]

were 54 judges nominated and unconfirmed.
  It is clear that at least 13 fewer judges were pending when Senator 
Hatch chaired the committee and the Republicans left office than when 
the Democrats controlled the Senate and President Bush left office--a 
very similar circumstance. I think it is impossible to say that 
President Clinton's judges were abused.
  With regard to the historic right of Senators to refuse to submit the 
blue slip, giving home State Senators, in effect, an ability to block 
nominees in their home States, that did slow down some of the nominees 
and keep them from being confirmed. Whether those Senators were right 
or not, I don't know. But it is a power we have always held.
  Let me say this: Do the Democrats in the Senate say this is an abuse 
of power and ought to be reduced, and it is something that ought not be 
allowed to go forward? No, they do not. They are now pushing to expand 
the power of the home State Senators beyond what we have had in the 
past to block nominees.
  I am very sad for the Pickering family, and the young Chip Pickering, 
the Congressman from Mississippi. He is one of the very finest Members 
of the House of Representatives. He loves his father. It was painful 
for me to see him have to sit through all of that today. But he is a 
strong young man. His father has a great record. He has served well. I 
am sure he too will bounce back from this.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Dayton). The Senator from Arizona is 
recognized.
  Mr. KYL. Mr. President, I would like to address the Senate in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________