Nomination of Charles W. Pickering, Sr., of Mississippi, to be United States Circuit Judge for the Fifth Circuit

EXECUTIVE SESSION

NOMINATION OF CHARLES W. PICKERING, SR., OF MISSISSIPPI, TO BE UNITED STATES CIRCUIT JUDGE FOR 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.

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 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. A? 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 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©; 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. A? 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.