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Pickering Under Attack at Second Hearing  
By: John Nowacki, Deputy Director, JSMP
JSMP Weekly Update for 2/8/02 * Used by Permission

The Senate Judiciary Committee held a second hearing yesterday afternoon for federal district judge Charles W. Pickering Sr., nominated for elevation to the U.S. Court of Appeals for the Fifth Circuit. His initial hearing was held on October 18. The following committee members were present for at all or part of the hearing Feinstein (who chaired it), Leahy, Thurmond, Kyl, Cantwell, Feingold, DeWine, McConnell, Durbin, Kennedy, Sessions, Hatch, Schumer, Brownback, Kohl, Biden, and Edwards. It began at two o'clock and ran just over 4 1/2 hours, with 2 rounds of questions.

Apart from following the attack plan laid out by People for the American Way and other outside liberal interest groups, the Democrats used this as an opportunity to put their rhetoric about changing the ground on confirmation battles into practice. Last year, Senate Democrats and their allies on the Left began openly advocating the use of political litmus tests for judges and a shift in the burden of proof to the nominee himself. At the hearing, several Democrat Senators not only asked Pickering how he would rule on specific issues like abortion, but they also demanded that he prove he would remain true to his testimony under oath that he would follow the law and binding precedent.

At one point, Senator Schumer (D-NY) told the judge that his personal views are "outside of the American mainstream," and that other nominees have testified that they would follow the law. What can you say to convince us, Schumer asked, before asking the nominee about "the idea that we should be looking for more moderate nominees" for the Fifth Circuit.

Pickering's response was that Senators could look to his testimony under oath and his record as a federal judge. He added that even the Legal Times concluded that he had followed the law and precedent in his years on the bench.

Senator Feinstein (D-CA) opened the hearing by explaining that, due to the anthrax situation, the initial hearing was held in a small room in the Capitol, and that many "community groups" had complained about the lack of access. Senator McConnell (R-KY), delivered an opening statement recounting Judge Pickering's record on civil rights issues, including his testimony against the Imperial Wizard of the Ku Klux Klan in Mississippi in 1967. Pickering himself then delivered a lengthy statement, taking the opportunity to answer and rebut the various charges relating to civil rights made against him by various left-wing groups. He also provided several examples of his own judicial rulings that follow the law and precedent despite his own disagreement with that interpretation of the law.

Both Senators Feinstein and Cantwell (D-WA) asked questions about abortion, referring to pro-life positions Pickering had taken while a state senator in the 1970s. "Senator, I know the difference between a political decision and a judicial decision," he responded to Cantwell, whose questioning was much more aggressive. "I would follow the law."

Feinstein also praised the record of the Fifth Circuit in expanding civil rights, but said that confirming a judge who is "outside the mainstream" would set those rights back. "I do not think that my activities in all of the things I've done in my life are outside the mainstream," Pickering responded. "They indicate someone who has been concerned about these rights and I have taken action to protect these rights."

Senator Hatch (R-UT) recognized some of the guests present in support of Pickering, including Charles Evers, the brother of murdered civil rights leader Medgar Evers, whose op-ed in support of Pickering was published in yesterday's Wall Street Journal.

Hatch also noted that the fight against Pickering is really being led by leftist groups promoting a political litmus test for nominees. "I am troubled by what appears to be a national agenda by a coalition of left-wing interest groups who have spent months hunting around for an excuse to use the Pickering nomination as a way to attempt to paint the administration's nominees as extremist," he said. "Though I am concerned about the underlying agenda, I believe they have picked the wrong nominee."

He referred to a New York Times article last year that reported on a retreat for Senate Democrats where blocking Bush nominees regardless of how scholarly or erudite the are was discussed. Addressing the civil rights accusations, it's one thing to make political remarks to a receptive crowd in DC in 2002, he said, but it's another thing to testify against the Imperial Wizard of the KKK in Mississippi in 1967. Hatch also referred to the Legal Times article mentioned above.

Senator Leahy (D-VT) took his turn after Hatch, and said that the committee could actually accomplish more by asking questions than by reading newspaper articles. I understand your statement that you'd follow the law, he told Pickering. I've heard that for 27 years and nominees always say that. I have a problem with you saying that. You've been reversed 26 times by the Fifth Circuit, either because you followed your personal opinions or didn't follow the law.

Pickering answered that his count was 25 reversals out of about 4000 decisions. Of his decisions that were actually appealed, 93 percent were sustained.

Senator McConnell addressed People for the American Way's claim of "disturbing evidence" that Pickering has promoted religion. PFAW mentioned an anonymous remark about Pickering's "piety" in the Federal Judicial Almanac, but didn't include the many other positive comments in the Almanac. Besides, McConnell said, there's nothing wrong with a pious judge; that simply means he has moral character. McConnell noted that another objection raised by PFAW involved a statement made in his personal capacity.

Senator Sessions (R-AL) pointed out that in several of the cases Democrats were citing where the defendant prevailed, the plaintiffs support Pickering's nomination. He also addressed complaints from the Left about Pickering's unpublished opinions and the insinuations that many opinions aren't published because he has something to hide. Pickering answered that the Federal Judicial Conferences of the U.S. and the Fifth Circuit actually discourage district judges from publishing opinions.

Senator Feingold (D-WI) criticized Pickering about the letters of support he received from Mississippi attorneys, implying that some coercion was involved. Senator Specter (R-PA) sounded some of the Democrats' themes, asking about the influence of personal views on rulings.

Senator Durbin (D-IL) began by saying that "this hearing has become a painful recollection of America's past in the civil rights movement." He then said, rather pointedly, that he can recall the experience former President Clinton had in nominating judges to the Fifth Circuit (a remark echoed later by Schumer, who said certain Clinton nominees would have "balanced" the court). Interestingly, he added that he certainly hopes every nominee of any President is given a respectful opportunity to present his credentials. Whether that means he supports hearings for the Bush nominees Leahy has blocked is unclear.

Senator Kyl (R-AZ) immediately took Durbin to task for his remarks about Clinton nominees. "I want to comment a bit on the tone," he said, before addressing Durbin's implication that the lack of confirmation of certain Clinton nominees should have relevance to Pickering's confirmation. He said that Pickering is being "cross examined here as if he is almost a criminal." The ABA has rated Pickering "well-qualified," and as a committee we have to be careful, he said. We do not have to go along with the lead of certain outside groups with a political agenda. I hope that we wouldn't be bring in political views and follow them regardless of what a nominee says -- as if this is a show and we're all playing out our parts -- that's something we should avoid, he added.

Kyl asked Pickering how he would approach cases without resorting to his own personal views. They are irrelevant, Pickering answered. I would look to the law, the Constitution, and Supreme Court or Fifth Circuit precedent, he said.

Senator Edwards (D-NC) grilled Pickering over his handling of a 1994 case involving three defendants -- at least two of them teenagers -- who burned a cross in front of a family's home, accusing him of violating the code of judicial ethics. The government prosecutors had agreed to plea bargains with two of the defendants, including one who fired a gun into the house and whom testimony had shown to have a long history of racism (Pickering said that the testimony convinced him this defendant was the leader). Under the plea bargains, both defendants were convicted of misdemeanors and sentenced to home confinement. The remaining defendant, who didn't agree to a plea bargain involving a felony conviction and a 15 month sentence, was still convicted and sentenced to the penitentiary by Judge Pickering -- after receiving a stern lecture about the "heinous act" he'd committed, and how he alone bore responsibility for his actions. Pickering twice read this statement to the committee during the course of the hearing.

At the time, Pickering called a friend from Mississippi who was an official at the Department of Justice to vent his frustration, as he explained yesterday, over the disparate sentences mandated by the guidelines and with the government attorneys. It apparently irritated him that the defendant who wouldn't agree to a plea bargain was supposed to get 7 1/2 years while the other two -- including the one who fired the gun -- got off with home confinement. Pickering said that this was an ex parte communication, but that he did not believe this violated the code, especially since the official had no responsibility for or control over the case. In response to questioning from Senator Hatch, Pickering clarified that his conversation with the official did not benefit the government.

Pickering sentenced the defendant to 2 years and 3 months in the penitentiary after the government dropped one of three charges. The sentence he imposed was 9 months longer than the defendant would have received had he pled guilty to the remaining two charges.

Since the government did not benefit from the ex parte communication, Senator Hatch -- who is a former prosecutor -- rhetorically asked, "what's the hullabaloo about?" He told Pickering "To be honest with you, judges make these calls all the time if they think attorneys are not acting properly."

Additional information on Judge Pickering's record and contact information for Senators is available at www.judicialselection.org

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