[Congressional Record (Bound Edition), Volume 149 (2003), Part 19]
[Senate]
[Pages 26540-26556]
[From the U.S. 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 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.

[[Page 26541]]

  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 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.

[[Page 26542]]

  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 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

[[Page 26543]]

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 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

[[Page 26544]]

     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).
       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

[[Page 26545]]

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 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.

[[Page 26546]]

  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 
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

[[Page 26547]]

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 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

[[Page 26548]]

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 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,

[[Page 26549]]

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 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

[[Page 26550]]

     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:

       The fact that a black employee is terminated does not 
     automatically indicate discrimination. The Civil Rights Act 
     was not passed to guarantee job security to employees who do 
     not do their job adequately.

  In 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

[[Page 26551]]

Pickering's hostile position toward anti-discrimination laws and 
claimants, would be justified in fearing that 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

[[Page 26552]]

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 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

[[Page 26553]]

     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 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.

[[Page 26554]]

  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 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.

[[Page 26555]]


  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. 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.

[[Page 26556]]

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.
  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.

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