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…
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.
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 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 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, 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 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 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 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 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?
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?
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.
Mr. President, how much time do I have remaining?
I yield the 2 minutes to the Senator from Massachusetts.
Will the Senator yield for a question?
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.