Federal News Service

HEADLINE: PRESS CONFERENCE WITH SENATOR CHUCK SCHUMER (D-NY); AND SENATOR RICHARD DURBIN (D-IL) RE: OPPOSE NOMINATION OF JUDGE CHARLES PICKERING TO THE U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT
 
PARTICIPANTS: SENATOR CHUCK SCHUMER (D-NY); AND SENATOR RICHARD DURBIN (D-IL)

BODY:
SEN. SCHUMER: Good morning, everybody. Sorry to hold you up. The subway stopped right in the middle between the—under the new Republican leadership, the subways are not working. (Laughter.) Anyway.

Q Did you walk?

SEN. SCHUMER: Hm?

Q Did you walk?

SEN. SCHUMER: Well, I stayed in there until they brought somebody. I had remembered that somebody—I think Ted Stevens, that when Senator D'Amato was stuck, he would break the glass and go right through. But—so that New York tradition has been broken, at least for now.

Q (Laughs.)

SEN. SCHUMER: Anyway. We're here to talk about a much more serious topic, and that is the nomination or the renomination of Judge Pickering. And as you all know, the Constitution gives senators the power of advise and consent, and last year we voted not to give consent to Judge Pickering's nomination because we had real concerns about his abusing his judicial powers to unethically intervene on behalf of a convicted cross-burner.

In over a decade on the bench, Judge Pickering overstepped his judicial bounds to assist one criminal defendant. The defendant happened to be a white man who had been convicted of burning a cross on the lawn of an interracial family in modern day Mississippi. It was an extraordinary act, both because of how clearly unethical his conduct was, and because of the glaring racial insensitivity that he displayed. Why anyone would go the whole nine yards, and then some, to get a lighter sentence for a convicted cross-burner is beyond me. Why anyone would do that in 1994, and in a state with Mississippi's sad history of race relations is simply mind-boggling.

Combined with the rest of Judge Pickering's record, which basically showed no distinguishing characteristics—this is not a brilliant man who made one mistake—his nomination simply didn't clear the high bar that we set for judicial nominees.

Last month I exercised my constitutional advice powers by writing the president and asking him not to nominate Judge Pickering again.

In the wake of Senator Lott's comments and the encouraging statements from the right—White House on civil rights issues, we had some hope that the administration might agree that Judge Pickering is not the best nominee to a powerful post, a lifetime appointment, on the 5th Circuit Court of Appeals. I must say I'm not surprised that that advice was rejected.

Actions speak louder than words, and when it comes to civil rights, this administration has been talking a good game, but it's consistently ignored the need to move civil rights and racial issues forward. To change the conductor but have the orchestra continue to play the same tune doesn't make much of a difference.

This issue, the nomination of Judge Pickering, is not like an issue—let me say this again. This issue, the nomination of Justice Pickering, is not like affirmative action, where people of good faith can disagree. To renominate Judge Pickering, who has not built a distinguished record and is probably best known for intervening on behalf of a convicted cross-burner, shows, unfortunately, that Richard Nixon's Southern strategy is still alive and well in the White House. And we regret to say that.

And so, over the last several years, there's been a revolution in the courts. The Supreme Court and the circuit courts of appeals have cut back on people's power to go to the courts and have their rights enforced. Congress passes laws to protect women and children and senior citizens and workers and the disabled and people of color, and the courts strike those laws down. The White House and the ideological hard right that's way out of the mainstream understand if they control courts, they can continue the rollback of civil rights in this country.

And so we regret this moment. For years the courts have served as the shield protecting basic civil rights in this country. Instead this administration seems to want the courts to be the sword that destroys those rights. It's troubling, it's worrisome, and we hope it can change.

In the meantime, speaking for myself, I'm prepared to do everything I can to stop the nomination of Justice Pickering. We can do a lot better, and we can do a lot better at bringing people together, as the White House has proclaimed it wants to do, than renominating Judge Pickering.

SEN. DURBIN: Thank you. After weeks of painful reflection, the leadership of the Republican Party, from the president on down, promised a new sensitivity, a new commitment to racial reconciliation in America.

Yesterday, with the renomination of Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit, the White House called into question all of its promises to demonstrate that the party of Abraham Lincoln was truly committed to civil rights. I believed, and I'm sure many shared the belief, that the White House would take care not to send us any judicial nominees with questionable credentials on civil rights. I was wrong. On the first list of nominees out of the new White House in this new Congress, we know from lengthy hearings and investigation we have the name of a man who has been caught in a swirl of controversy involving issues of discrimination and equality. That person, of course, is Judge Charles Pickering.

By way of a refresher, let me just tell you this. When Judge Pickering's name first came before the Judiciary Committee for this elevation, for a lifetime appointment to the second-highest court in the land, 38 black Mississippi state legislators wrote to the Senate Judiciary Committee speaking out against him. Every state branch and chapter of the NAACP, 140 of them in Mississippi, opposed his nomination, and it also opposed his nomination to the district court. Congressman Bennie Thompson, the only African-American congressman from Mississippi, said that Judge Pickering was not sensitive enough to minority concerns.

Now, I will tell you this, and I want to make it clear, as I did the first time we considered Judge Pickering for this elevation. It is true that he has a lengthy history of actions and words insensitive to civil rights prior to his elevation to the district court bench. Like many, I have taken those and pushed them aside. That is history. Many people made mistakes, said things they shouldn't have, prior to the enactment of civil rights legislation. I don't believe that Judge Pickering should be condemned or rejected on that basis. But it is fair for us to ask what he has done since he has become a federal district court judge. That record in and of itself, I believe, disqualifies him for this elevation.

Judge Pickering has been reversed on 15 separate occasions by the Fifth Circuit, one of the courts—one of the country's most conservative courts, for ignoring well-settled principles of law. As a judge, Judge Pickering went out of his way in a 1993 opinion to express great skepticism and open hostility toward the Supreme Court's seminal one-person, one-vote doctrine. There is hardly a decision that I can think of in modern times that goes to the question of equality of opportunity to vote and exercise your right as a citizen in America in our government than one person, one vote.

Judge Pickering wrote, quote, "It is wondered if we are not giving the people more government than they want," close quote, in reference to one person, one vote.

As a judge, Charles Pickering repeatedly admonished litigants about the quote, "unfortunate side effects," close quote, of employment discrimination laws. He wrote in one such case, and I quote him, "When an adverse reaction is taken affecting one covered by such laws, there's a tendency on the part of the person affected to spontaneously react that discrimination caused the action," close quote; a direct quote from this renominated Judge Pickering.

As a judge, Charles Pickering stated candidly about his presumption that most lawsuits under Title 7 of the 1964 Civil Rights Act lack any merit.

As a judge, Charles Pickering approached lawyers who regularly practice before him and asked them to send letters of support of his nomination to the Judiciary Committee, raising serious ethical questions which our committee considered.

And let me go back to the case that Senator Schumer has alluded to. Were we not reminded just a few weeks ago by Clarence Thomas on the Supreme Court what cross-burning means to African Americans and others of color across this nation? This is not just some symbolic exercise of free speech. It is as hate-filled as a person can be in reference to race. And this is the one case that Judge Pickering decided to take extraordinary extra-judicial actions to call the Department of Justice in Washington after a conviction by a jury of this defendant and ask them to reconsider, refile the case, change it so that he wouldn't have to impose the mandatory minimum sentence required under law. A cross-burning case in Mississippi!

It is breathtaking to think that just days and weeks after this painful debate over civil rights in the year 2002 and 2003 that this White House would send us the name of Charles Pickering again. I will join with my colleague, Senator Schumer, and others in the Senate to exercise all of our legal rights to make certain that he is not in fact confirmed to serve on the Fifth Circuit U.S. Court of Appeals, which I will close by reminding you has the largest percentage minority population of any circuit of America. Charles Pickering for the Fifth Circuit is the wrong choice.

SEN. SCHUMER: Questions?

Q Senator, what do you intend to do about it? Tell us how do you intend to --

SEN. SCHUMER: Well, we would first—I mean, our first hope is that maybe cooler heads in the Senate would prevail on the Republican side, and urge the president not to bring forward the nomination. Maybe urge the Judiciary Committee to not bring it forward. But if that doesn't work, we're going to work to get 41 votes -- 51 votes, if we can, to defeat Justice Pickering. But I would be willing to use my prerogatives on the floor and be backed up by 41 votes and not let the nomination go forward.

Q How about in committee, is that a possibility also, a filibuster?

SEN. SCHUMER: Well, you know, I think—no. I think in committee the ability to prevent the nomination from coming out is rather limited. If one of the members of the majority party would decide to vote against him, we could—we could win. But so far, that doesn't look good because they all voted the other way last time.

Q Would this be a tag-team filibuster here?

SEN. SCHUMER: I think you'll find more than—I think there's wide support in our caucus to do that. It's not just us. I know Senator Kennedy does. He couldn't be here today because his child is --

Q What about Southern Democratic senators, the ones that are left? You obviously would be targeting them for votes. Does Pickering's identification with Lott make it easier to rally Democrats on the floor in opposition to Pickering?

SEN. SCHUMER: I have not talked to any of my colleagues from the Southern states on this issue, as of yet. I just—to me, this is a moral issue. And as Dick Durbin said, particularly in light of what we went through in the last few weeks, I mean, it's almost as if the White House is saying, "Never mind." That they sort of exercised the demons that have been with us for 200 years, 300 years, by simply working behind the scenes against Trent Lott. And if you ask anybody's committed to civil rights, Democrat or Republican, then that's not going to do the job.

Q Senator, what do Republicans need to do to show that they want to heal the breach, that they learned some things from --

SEN. SCHUMER: Okay. I've been reluctant to prescribe that because there are different ways to do it. Jack Kemp, whose political philosophy was quite different than mine, truly convinced the minority community that he cared about them, and he came up with a whole bunch of, quote, "conservative" ways to bring people together.

But I don't think anyone anywhere can have any doubt that by renominating Justice Pickering, that—Judge Pickering, that there's almost been a case of amnesia about what happened three, four weeks ago.

Do you want to say something?

SEN. DURBIN: (Off mike.)

SEN. SCHUMER: Okay. Thank you.

Q Senator, has the president sent any letter back to your letter to him?

SEN. SCHUMER: Not yet. Hope springs eternal.

Q Senator, do you want more hearings in the Judiciary Committee on this, or --

SEN. SCHUMER: Well, that's something we would have to decide. I mean, the record is quite full.

SEN. DURBIN: Two hearings.

SEN. SCHUMER: We had two hearings. We held one the day of the anthrax scare, and we held one subsequent to that.

SEN. DURBIN: Expedited hearings. This wasn't like the old days, when these would be separated by months and sometimes years between hearings—moved it quickly.

Q But you feel the issues have been aired sufficiently?

SEN. SCHUMER: The issues have been aired sufficiently. I mean, this is—again, this is not an issue where, you know, I think—there are issues where people of good faith can disagree, and I don't think liberals are correct to say, unless Republicans agree with what we think should be done on civil rights, that they're not for civil rights. There are different roads to full equality. But this one is not one of those debatable issues. This one is somebody who showed glaring insensitivity in 1994, and I'm still scratching my head in amazement that they actually nominated him.

Q At this point you expect be able to get 41 votes -- (off mike) --

SEN. SCHUMER: It's too early to tell.

Q Senator, you said that it appears Richard Nixon's Southern strategy is still alive in the White House.

SEN. SCHUMER: Right.

Q What do you mean by that? And do you think that goes to Karl Rove or President --

SEN. SCHUMER: Look, I'm not going to say who it goes to. The White House is the White House. They're the ones who nominated Judge Pickering. I think it's silly to say, "Well, this one was for him. This one was against him." But basically, sort of it's not so different than Trent Lott's comments. Sort of a wink to say, "Well, what happened in the past wasn't so bad" is what it's all about.

Q Do you think --

SEN. SCHUMER: Go ahead. Last one.

Q Frist said yesterday he wants to promote -- (off mike) -- inclusive for all Americans. Do you think this creates problems for him as he tries to make this, particularly early on, a major issue?

SEN. SCHUMER: Well, let me put it in a positive way. I think Senator Frist could do a world of good in terms of racial harmony, in terms of showing that the events of the last few weeks truly were palliative and healing in their result, by saying—by quietly telling the White House that we shouldn't bring Judge Pickering forward.

Remember, the Judiciary Committee has to call him up. This is the White House nominating him—or renominating him. It's the first step.

Thanks.