STATEMENT OF SENATOR EDWARD M. KENNEDY AT THE SENATE JUDICIARY COMMITTEE EXECUTIVE SESSION ON THE NOMINATION OF CHARLES PICKERING, SR.

October 2, 2003

FOR IMMEDIATE RELEASE

Mr. Chairman, with all due respect, do we have to go through all of this again? The Committee's process worked well in the last Congress. Our two previous hearings on this nominee produced compelling evidence that Judge Pickering should not be confirmed — and certainly not to the Fifth Circuit, the Circuit with the highest minority population in the land, 42%, and which has played a critical role for many years in interpreting the nation's civil rights laws. He shouldn't even have been confirmed for the District Court.

It's clear from his record that he has neither the judgment nor the commitment to core constitutional and federal statutory protections required for promotion to the appellate court.

As a district court judge in the 1990s, Mr. Pickering displayed a pattern of hostility toward established legal principles with which he does not personally agree and, in particular, toward claims brought under civil rights statutes.

Also, while serving on the district court, and even while his nomination is pending, he has engaged in ethically questionable behavior by seeking letters of recommendation from lawyers who appear before him in federal court and by improperly seeking to reduce the sentence of a defendant convicted of a hate crime. Concerns about his nomination are based not on "ancient history," but on a very recent history that casts real doubt on his willingness to follow the rule of law and meet the high ethical standards required of a federal judge.

In cases involving voting rights, employment discrimination, habeas corpus, and prisoners' rights, Judge Pickering has disregarded precedent or made harsh statements that cast serious doubt on whether he has an open mind. He has been reversed at least 15 times by conservative panels of the Fifth Circuit in civil rights and criminal cases. In many of those cases, he ignored controlling precedents or well-settled principles of law. This is not the careful, reasoned, and impartial approach that we expect of our federal judges.

Judge Pickering's responses to my questions about his civil rights record failed to answer my concerns. I asked him why, in a voting rights case in which the sole question was whether to order a special election to remedy a violation of "one-person, one-vote," he had gone out of his way to criticize the "one-person, one-vote" doctrine. Judge Pickering said that he criticized the doctrine as "obtrusive" because "to provide constitutional protection, we are having to do what the judges shouldn't have done, and that is obtrusive." But a long line of Supreme Court decisions makes clear that "having a voice in the election of those who make the laws" is central to our American democracy, and that it is the precise role of the federal courts to step in when those rights are violated and other branches of government are silent.

Even more troubling is Judge Pickering's response to my concern that he ruled for job discrimination plaintiffs in only a handful of cases, and that he was repeatedly disdainful of their claims. He said that he frequently ruled for defendants because most of the "good cases" were handled through mediation by the EEOC, and those cases that proceeded to court had been investigated and found lacking in merit.

There is no basis for the claim that only meritless discrimination cases come to federal court. Congress has intended the federal courts to be a place for enforcing the rights of employees facing discrimination. Judge Pickering distorts the role of the EEOC and the federal courts in providing a forum for discrimination claims.

Judge Pickering's conduct in the cross-burning case in 1994 demonstrates these concerns about his willingness to follow the law and his fairness in civil rights cases. In that case, Judge Pickering undertook a shameful campaign to avoid a five-year congressionally-mandated minimum sentence for a defendant convicted of burning a cross on an interracial family's lawn. After conviction by a Mississippi jury, Judge Pickering pressured the government to dismiss the charge that required the mandatory minimum penalty. He threatened to order a new trial – even though the defendant had not asked for a new trial and even after acknowledging that the law supporting the charge was "unambiguous."

Supporters of his nomination defend his actions on the ground that he has reduced sentences of other criminal defendants in the past, including African Americans. The difference, however, is that in the cross-burning case, Judge Pickering tried to reduce the sentence when the law clearly prohibited the reduction. In a letter to Senator Hatch, he admitted that he has departed downward from other mandatory minimum sentences only when the Sentencing Guidelines allowed an exception.

Nevertheless, Judge Pickering singled out this case – involving a white defendant convicted of a clear civil rights crime – and challenged the mandatory minimum sentencing law. I have long opposed mandatory minimums. Such sentences disproportionately affect minority defendants. But federal judges must follow the law, not nullify it. Judge Pickering has shown no concern about the injustice produced by mandatory minimum sentences in other contexts. Yet he went to great lengths to help a convicted cross burner.

All of us are aware that some Mississippians, including African-Americans, support Judge Pickering. But the Committee has also received letters from many Mississippians opposing his nomination. Eugene Bryant, the President of the Mississippi NAACP, which has more than one hundred chapters in the state, sent a letter opposing his nomination and expressing the NAACP's concerns.

Kathy Egland, an African-American civil rights activist and a lifelong Mississippian, has also written to oppose Judge Pickering's nomination. As she states, "the debate about the Pickering judicial nomination should concern his actions in public office," not whether he is popular in his hometown.

Judge Pickering's nomination was bad enough. His re-nomination is even worse, because of what it also says about President Bush's own lack of commitment to civil rights.

Surely there are well-qualified nominees in Mississippi who won't use their judicial power to roll back civil rights, or vent their scorn for basic Supreme Court precedents.

What's the point of pushing yet again for a nominee who probably cannot get enough support to be confirmed because he doesn't deserve to be confirmed? Enough's enough. It's hard to believe the President would rather pick this fight than pick a decent judge.

Press Contact

Jim Manley (202) 224-2633

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