[Senate Hearing 107-843]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 107-843

CONFIRMATION HEARING ON THE NOMINATION OF CHARLES W. PICKERING, SR. TO 
                 BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 7, 2002

                               __________

                          Serial No. J-107-57

                               __________

         Printed for the use of the Committee on the Judiciary


83-959              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003

                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     1
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.   292
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    77
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........   136
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     5
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky.     2
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   136

                        STATEMENT OF THE NOMINEE

Pickering, Charles W., Sr., of Mississippi, Nominee to be Circuit 
  Judge for the Fifth Circuit....................................     6
    Questionnaire................................................    13

                         QUESTIONS AND ANSWERS

Responses of the Nominee to questions submitted by Senator Biden.   141
Responses of the Nominee to questions submitted by Senator 
  Edwards........................................................   167
Responses of the Nominee to questions submitted by Senator 
  Feingold.......................................................   171
Responses of the Nominee to questions submitted by Senator 
  Kennedy........................................................   182

                       SUBMISSIONS FOR THE RECORD

Abbott, Guthrie T., Professor Emeritus, University of 
  Mississippi, University, Mississippi, October 30, 2001, letter.   191
Adelman, Michael, Attorney at Law, Adelman & Steiner, P.A., 
  Hattiesburg, Mississippi, October 29, 2001, letter.............   192
Alston, Alex A., Jr., Attorney at Law, Alston & Jones, Jackson, 
  Mississippi, October 26, 2001, letter..........................   194
Anderson, Reuben V., Attorney at Law, Phelps Dunbar LLP, Jackson, 
  Mississippi, January 8, 2002, letter...........................   196
Anderson, Thomas C., Attorney at Law, Garrison Scott Gamble & 
  Rosenthal, P.C., Hattiesburg, Mississippi, November 6, 2001, 
  letter.........................................................   197
Aycock, Herman L., Chief of Police (Retired), City of Laurel, 
  Mississippi, Ellisville, Mississippi:
    February 2, 2002, letter.....................................   198
    February 5, 2002, letter.....................................   199
Baltar, John, Jackson, Mississippi, January 30, 2002, letter.....   200
Baltar, Mary, Jackson, Mississippi, January 30, 2002, letter.....   201
Barnes, George L., Rev., Laurel, Mississippi, October 25, 2001, 
  letter.........................................................   202
Barnett, Angela, October 18, 2001, letter........................   203
Bennett, Richard T., Attorney at Law, Bennett Lotterhos Sulser & 
  Wilson, P.A., Jackson, Mississippi, October 25, 2001, letter...   204
Blackwell, Leonard E., II, Attorney at Law, Blackwell & White, 
  Gulfport, Mississippi, October 26, 2001, letter................   206
Bolton, Charles, Chief Deputy Sheriff, Forrest County, 
  Mississippi, Hattiesburg, Mississippi, October 30, 2001, letter   208
Breeland, Jace, Tylertown, Mississippi, February 5, 2002, letter.   210
Brinkley, H. Alex, Attorney at Law, McMahan & Brinkley, P.A., 
  Hattiesburg, Mississippi, January 23, 2002, letter.............   211
Brown, Raymond L., Attorney at Law, Brown Buchanan Sessoms, 
  Pascagoula, Mississippi, October 25, 2001, letter..............   212
Bustin, Carol Ann Estes, Attorney at Law, Bustin Law Firm, 
  Hattiesburg, Mississippi, January 28, 2001, letter.............   214
Chesnoff, David Z., Esq., Attorney at Law, Goodman, Chesnoff & 
  Keach, Las Vegas, Nevada, October 25, 2001, letter.............   215
Clarion-Ledger, Jackson, Mississippi:
    October 20, 2001, editorial..................................   216
    November 4, 2001, editorial..................................   217
    January 26, 2002, editorial..................................   219
    February 8, 2002, editorial..................................   220
Cline, Lee W., Attorney at Law, Cline, Ltd., Laurel, Mississippi, 
  January 25, 2002, letter.......................................   222
Colette, John M., Attorney at Law, Jackson, Mississippi, January 
  17, 2002, letter...............................................   224
Cooke, Michael D., Attorney at Law, Iuka, Mississippi, February 
  1, 2002, letter................................................   225
Crosthwait, Frank O., Jr., Attorney at Law, Crosthwait, Terney & 
  Noble, Indianola, Mississippi, October 29, 2001, letter........   227
Cupit, Danny E., Attorney at Law, Jackson, Mississippi, November 
  13, 2001, letter...............................................   229
DeLoach, Gus, Laurel, Mississippi, January 24, 2002, letter......   231
Dillard, W.O. ``Chet'', Attorney at Law, John Arthur Eaves Law 
  Firm, Jackson, Mississippi:
    letter.......................................................   232
    January 23, 2002, letter and attachment......................   234
Doolittle, Roger K., Attorney at Law, Jackson, Mississippi, 
  January 7, 2002, letter........................................   238
Dukes, James K., Attorney at Law, Hattiesburg, Mississippi, 
  January 24, 2002, letter.......................................   239
Dukes, James O., Attorney at Law, Bryant, Clark, Dukes, 
  Blakeslee, Ramsey & Hammond, P.L.L.C., Gulfport, Mississippi, 
  October 30, 2001, letter.......................................   241
Dunbar, Jack F., Attorney at Law, Holcomb Dunbar, Oxford, 
  Mississippi, October 25, 2001, letter..........................   242
DuPree, Hon. Johnny L., Mayor, City of Hattiesburg, Mississippi, 
  October 29, 2001, letter.......................................   243
Dye, Brad, Attorney at Law, Pyle, Dreher, Mills & Dye, P.A., 
  Ridgeland, Mississippi, February 1, 2002, letter...............   244
Edmonson, Hon. Thaddeus, Councilman, City of Laurel, Mississippi, 
  October 29, 2001, letter.......................................   245
Edwards, Hon. John, a U.S. Senator from the State of North 
  Carolina, March 5, 2002, letter and attachments................   246
Evers, James Charles, Wall Street Journal, February 7, 2002, 
  article........................................................   268
Fairley, Donnie Ray, Sr., February 5, 2002, letter...............   269
Fairley, Kenneth E., Rev., Hattiesburg, Mississippi:
    October 30, 2001, letter.....................................   270
    February 5, 2002, letter.....................................   271
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, February 22, 2002, letter and attachments...........   272
Fortenberry, Dewin L., Jr., Attorney at Law, Fortenberry Law 
  Firm, PLLC, Mendenhall, Mississippi, January 17, 2002, letter..   284
Galloway, Ben F., Attorney at Law, Owen & Galloway PLLC, 
  Gulfport, Mississippi, January 17, 2002, letter................   285
Gambrell, Deborah Jones, Attorney at Law, Deborah Jones Gambrell 
  & Associates, Hattiesburg, Mississippi, October 25, 2001, 
  letter.........................................................   286
Gandy, Evelyn, Attorney at Law, Ingram & Associates, PLLC, 
  Hattiesburg, Mississippi, January 9, 2002, letter..............   288
Gavin, Milton, Hattiesburg, Mississippi, February 5, 2002, letter   290
Graham, William M., Attorney at Law, Aultman, Tyner, Ruffin & 
  Yarborough, Ltd., Hattiesburg, Mississippi, October 25, 2001, 
  letter.........................................................   291
Graves, Ernest W., Attorney at Law, Laurel, Mississippi, November 
  1, 2001, letter................................................   293
Gray, Early M., Taylorsville, Mississippi, October 25, 2001, 
  letter.........................................................   294
Harrison, Charles, Laurel, Mississippi, February 5, 2002, letter.   295
Hattiesburg American, February 3, 2002, editorial................   297
Holleman, Boyce, Attorney at Law, Gulfport, Mississippi, October 
  29, 2001, letter...............................................   299
Ingram, Carroll H., Attorney at Law, Ingram & Associates, PLLC, 
  Hattiesburg, Mississippi, January 9, 2002, letter..............   301
Johnson, Oliver, former member, Forest County Board of 
  Supervisors, Hattiesburg, Mississippi, October 30, 2001, letter   303
Jones County Bar Association, Jones County, Mississippi, October 
  31, 2001, resolution...........................................   304
Jones, Nora J., Hattiesburg, Mississippi, January 25, 2002, 
  letter.........................................................   305
Jones, William H., Attorney at Law, Petal, Mississippi, October 
  25, 2001, letter...............................................   307
Jordan, Nathan, Rev., Pastor, St. John United Methodist Church, 
  Hattiesburg, Mississippi, October 26, 2001, letter.............   308
Keith, Damon J., Circuit Judge, United States Court of Appeals 
  for the Sixth Circuit, Detroit, Michigan, November 8, 2001, 
  letter.........................................................   310
King, James R., Vienna, Virginia:
    December 10, 2001, letter....................................   312
    January 26, 2002, letter.....................................   314
King, Tommy, International Director, International Association of 
  Lions Clubs, Columbia, Mississippi, November 6, 2001, letter...   315
Lawrence, Charles E., Jr., Attorney at Law, Hattiesburg, 
  Mississippi, October 25, 2001, letter..........................   316
Legal Times, Jonathan Groner, Washington, D.C., February 4, 2002, 
  article........................................................   318
Lumpkin, Mark D., Attorney at Law, Minor & Associates, Biloxi, 
  Mississippi, January 24, 2002, letter..........................   321
Mack, Melvin, Jones County Board of Supervisors, Laurel, 
  Mississippi, October 25, 2001, letter..........................   322
Magee, Johnny, City Councilman, Laurel, Mississippi, October 25, 
  2001, letter...................................................   323
Marshall, Charles, Member, Forest County Board of Supervisors, 
  Hattiesburg, Mississippi, October 30, 2001, letter.............   325
Matthews, Jolly W., Hattiesburg, Mississippi, October 26, 2001, 
  letter.........................................................   327
Maxey, John L., II, President, Mississippi Chapter-American Board 
  of Trial Advocates, Laurel, Mississippi, February 4, 2002, 
  motion.........................................................   329
McIntosh, Mark F., Senior Litigation Counsel, BellSouth 
  Corporation, Atlanta, Georgia, January 28, 2002, letter........   330
McMahan, Michael B., Attorney at Law, McMahan & Brinkley, P.A., 
  Hattiesburg, Mississippi:
    October 25, 2001, letter.....................................   331
    January 23, 2002, letter.....................................   333
McTeer, Charles Victor, Attorney at Law, McTeer & Associates, 
  Greenville, Mississippi, October 30, 2001, letter..............   334
Meadows, Joseph R., Attorney at Law, Meadows Riley Law Firm, 
  Gulfport, Mississippi, October 26, 2001, letter................   335
Melvin, Leonard B., Jr., Attorney at Law, Melvin & Melvin, 
  Laurel, Mississippi, October 25, 2001, letter..................   337
Meridian Star, Meridian, Mississippi, February 3, 2002, editorial   339
Miller, Robert A., Attorney at Law, Butler, Snow, O'Mara, Stevens 
  & Cannada, PLLC, Jackson, Mississippi, November 7, 2001, letter   340
Minor, Paul S., Attorney at Law, Minor & Associates, Biloxi, 
  Mississippi, October 26, 2001, letter..........................   341
Mississippi Chapter of the Federal Bar Association, Terryl 
  Rushing, President, Jackson, Mississippi, October 26, 2001, 
  letter.........................................................   343
Mississippi Trial Lawyers Association, Shane F. Langston, 
  President, Jackson, Mississippi, October 30, 2001, letter......   345
Montague, Frank D., Jr., Attorney at Law, Montague, Pittman & 
  Varnado, Hattiesburg, Mississippi, October 26, 2001, letter....   347
Mullins, William S., III, Attorney at Law, Gibbes Graves Mullins 
  Hortman Harlow Martindale & Bassi, PLLC, Laurel, Mississippi, 
  January 24, 2002, letter.......................................   348
Naylor, Henry E., Councilman, Hattiesburg, Mississippi, October 
  29, 2001, letter...............................................   350
Northeast Mississippi Daily Journal, Tupelo, Mississippi, January 
  28, 2002, editorial............................................   351
Owen, Joe Sam, Attorney at Law, Owen & Galloway, P.L.L.C., 
  Gulfport, Mississippi, January 17, 2001, letter................   352
Owens, Eugene D., Laurel, Mississippi, October 29, 2001, letter..   354
Pittman, Edwin L., Jr., Attorney at Law, Hattiesburg, 
  Mississippi, January 25, 2002, letter..........................   355
Posey, Chris, Chris Posey, Inc., Laurel, Mississippi, October 29, 
  2001, letter...................................................   356
Royals, Thomas E., Attorney at Law, Thomas E. Royals, PLLC, 
  Jackson, Mississippi, October 29, 2001, letter.................   357
Rube, Melanie, Deputy U.S. Marshal, Hattiesburg, Mississippi, 
  October 25, 2001, letter.......................................   359
Scanlon, Pat H., Attorney at Law, Scanlon, Sessums, Parker & 
  Dallas, Jackson, Mississippi, October 25, 2001, letter.........   360
Schwartz, Scott J., Attorney at Law, Hattiesburg, Mississippi, 
  February 1, 2002, letter.......................................   361
Siggers, Arthur L., Rev., Pastor, Mt. Olive Baptist Church, 
  Hattiesburg, Mississippi, October 31, 2001, letter.............   362
South Central Mississippi Bar Association, James Kearney Travis, 
  III, President, Hattiesburg, Mississippi, October 29, 2001, 
  letter and resolution..........................................   364
Times of South Mississippi, Hattiesburg, Mississippi, November 
  28, 2001, editorial............................................   368
Tollison, Grady F., Jr., Attorney at Law, Tollison Law Firm, 
  P.A., Oxford, Mississippi, October 29, 2001, letter............   370
Trotter, W.C., III, President, The Mississippi Bar, Belzoni, 
  Mississippi, October 30, 2001, letter..........................   371
Waller, William L., Sr., Attorney at Law, Waller & Waller, 
  Jackson, Mississippi, January 14, 2002, letter.................   372
Weathers, Joe Mark, Attorney at Law, Hattiesburg, Mississippi, 
  January 30, 2002, letter.......................................   373
Welch, W. Scott, III, President, American Board of Trial 
  Advocates, Jackson, Mississippi, October 25, 2001, letter......   374
Wilkens, Samuel H., Attorney at Law, Jackson, Mississippi, 
  January 18, 2002, letter.......................................   376
Wilkinson, Gene A., Attorney at Law, Stennett, Wilkinson & Peden, 
  Jackson, Mississippi, January 30, 2002, letter.................   377
Williams, Johnny L., Chancellor, Place Three, Hattiesburg, 
  Mississippi, letter............................................   378
Wilson, Charles Reagan, Professor of History and Director, 
  Advisory Board for the Institute for Racial Reconciliation, 
  University of Mississippi, University, Mississippi, January 29, 
  2002, letter...................................................   379
Wingate, Hon. Henry T., District Judge, Southern District of 
  Mississippi, Jackson, Mississippi, October 25, 2001, letter....   380
Winter, William F., Attorney at Law, Watkins Ludlam Winter & 
  Stennis, P.A., Jackson, Mississippi, October 25, 2001, letter..   382

 
  NOMINATION OF CHARLES W. PICKERING, SR. TO BE CIRCUIT JUDGE FOR THE 
                             FIFTH CIRCUIT

                              ----------                              


                       THURSDAY, FEBRUARY 7, 2002

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, D.C
    The Committee met, pursuant to notice, at 2:07 p.m., in 
room SH-216, Hart Senate Office Building, Hon. Dianne Feinstein 
presiding.
    Present: Senators Feinstein, Leahy, Kennedy, Biden, Kohl, 
Feingold, Schumer, Durbin, Cantwell, Edwards, Hatch, Thurmond, 
Grassley, Specter, Kyl, DeWine, Sessions, Brownback, and 
McConnell.
    Senator Feinstein. This hearing will please come to order.
    I would like to begin by announcing what the procedure will 
be today. I have been asked by the chairman to Chair this 
hearing and we will proceed according to his request. I will 
make a brief opening statement. The ranking member will make a 
brief opening statement.
    We will then proceed to call Judge Pickering to the witness 
table. We will ask him to rise and be sworn, and then 
questioning of the witness will proceed in two rounds of 10 
minutes each, alternating sides according to seniority. 
Speakers will speak in the order of the initial time of 
arrival; in other words, what we call the early bird rule. If a 
senior Senator arrives late, a more junior Senator who arrived 
earlier will speak first. If, at the end of two rounds, there 
are still Senators with questions to ask, we will extend it to 
a third round of questioning.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Let me just proceed now with a brief statement.
    I think it is very hard to overstate the importance of an 
appointment to the United States Court of Appeals. The Supreme 
Court of the United States is our Nation's court of last 
resort, but it heard less than 80 cases in the 2000-2001 
session. In contrast, the Federal Courts of Appeals considered 
over 27,000 cases during the same period.
    For so many of the legal injuries for which people seek 
redress, the Court of Appeals is the last stop, the ultimate 
decisionmaker. Many of the issues that we wrestle with as a 
Nation--a woman's right to choose, civil rights, the 
relationship between church and state--are essentially decided 
by these courts. Thus, it is imperative that this Committee 
thoroughly screen candidates for those lifetime appointments, 
to ensure that they enter the court without bias, with a 
commitment to upholding the Constitution, and with a 
recognition of their proper role as judges.
    Now, Judge Pickering has had one hearing. There were many 
who thought that, well, the one hearing is done and that should 
be it. However, I want to point out that that hearing was on 
October 18, and the Committee had access at the time to only a 
very slim minority of Judge Pickering's opinions.
    Judge Pickering, by his own count, has published 95 out of 
1,100 opinions he has written. The Committee did not have 
access to his opinions in October. Simply put, without them, 
there was an insufficient record to evaluate his nomination.
    Now, I know that Judge Pickering has spent a lot of time 
working to retrieve these opinions, and the whole Committee, I 
want him to know, appreciates his patience and effort. He has 
given the Committee around 900 of his 1,000 unpublished 
opinions, though over 200 arrived just yesterday afternoon and 
another 100 cases remain unaccounted for.
    I would also just like to note that Judge Pickering's first 
hearing came under extraordinary circumstances. He first 
appeared before the Committee, as I said, on October 18 at a 
hearing room inside the Capitol. The Committee could not use 
the ordinary hearing room in the Dirksen Building, as the 
threat of anthrax contamination forced the closure of the 
Senate office buildings.
    Access to the hearing and access to the Capitol on that day 
was very limited. Many community groups called. They were not 
satisfied with the level of public access to the hearing, given 
the importance of this appointment and the concerns raised 
about the nominee. So, today, we will have an opportunity in a 
minimum of two 10-minute rounds for Senators to ask their 
questions.
    Now, if the ranking member--does anyone know if the ranking 
member is coming? I would defer to him for a statement.
    Senator McConnell. Senator Feinstein, I believe I am going 
to make a statement for----
    Senator Feinstein. Senator McConnell, on behalf of the 
ranking member.

  STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE 
                       STATE OF KENTUCKY

    Senator McConnell. Thank you very much.
    Today, we examine the life and reputation of Charles 
Pickering. I hope that we can do this in a fair and impartial 
manner. From my review of Charles Pickering's record, I have 
been struck by one resounding virtue: moral courage.
    As the tide of racial equality swept America in the 1950's 
and 1960's, it was unfortunately met with fierce resistance in 
certain areas. Laurel, Mississippi, was one. Unlike New 
England, integration was not popular in Jones County. Unlike 
New York, the press was not friendly to integration in Jones 
County.
    Unlike large southern cities such as Atlanta and 
Birmingham, there was no substantial segment of the community 
that had an enlightened view on race relations. Indeed, the 
town of Laurel, in Jones County, Mississippi, with a small 
population, was the home territory of the Imperial Wizard of 
the Ku Klux Klan, Sam Bowers.
    In the 1960's, Klan-incited violence escalated in Jones 
County, Mississippi. The Klan would drive by homes in the 
middle of the night and shoot into them. The Klan would fire-
bomb the homes of African Americans and those who helped them. 
The Klan would murder its enemies who stood for civil rights.
    Because these shootings, bombings, and murders violated the 
criminal law, the victims looked for justice. They found it in 
Jones County Attorney Charles Pickering. On the one hand, 
Charles Pickering had his duty to enforce the law. On the other 
hand, he had public opinion, the press, and most State law 
enforcement personnel against vigorously prosecuting Klan 
violence.
    A 27-year-old Charles Pickering stared in the face his 
political future, many in his community, and the press, and 
chose to do his duty of enforcing the law against the men who 
committed such violence. In the 1960's, in Mississippi, Madam 
Chairman, this took extraordinary courage.
    Soon, County Attorney Charles Pickering found that he had 
to choose again between those in law enforcement who would only 
go through the motions of investigating the Klan and those who 
sought to vigorously prosecute and imprison Klansmen. He chose 
to work with the FBI to vigorously investigate, prosecute, and 
imprison Klansmen. In the mid-1960's, in Mississippi, this took 
courage.
    Then came the threats. The Klan threatened to have County 
Attorney Pickering whipped. With the Klan already fire-bombing 
and murdering other whites whom it viewed as helping black 
citizens, the Pickering family could have easily been next.
    At night, County Attorney Charles Pickering would come back 
to his small home and look into the eyes of his wife, Margaret. 
He would look into the eyes of his four small children, who 
believed daddy could do anything and who did not understand 
hate and murder. One can only imagine how his wife, Margaret, 
would lie awake in fear, hoping that she would hear her 
husband's footsteps coming home.
    Charles Pickering had no money to protect his family. He 
had no press to stand up for him and his family. He had no 
covering of popular opinion to hide behind, and in this time of 
hate, bombings, and murder, Charles Pickering reached down deep 
in his soul and embraced the only thing he did have, his 
religious faith.
    He then testified against Sam Bowers, the Imperial Wizard 
of the Ku Klux Klan, in the fire-bombing trial of civil rights 
activist Vernon Dahmer in 1967. And Charles Pickering signed 
the affidavit supporting the murder indictment of Klansman 
Dubie Lee for a murder committed at the Masonite Corporation's 
pulpwood plant in Jones County. This took courage.
    While it is easy in Washington in 2002 to make a speech or 
sign a bill in favor of civil rights after decades of changed 
racial attitudes in schools and society and in the press, who 
among us would have had the courage of Charles Pickering, in 
Laurel, Mississippi, in 1967? Who among us would have the 
courage of his wife, Margaret, to stand with him?
    There are those who would say we are pleased that Pickering 
was one of the few prosecutors who actually prosecuted crimes 
committed by the KKK in the 1960's, but he should also have 
gone further by calling for immediate integration of schools 
and the workplace. That argument is tantamount to saying we are 
pleased that Harry Truman integrated the Federal armed forces 
in 1948, but he should have gone further and called for the 
integration of the State national guards as well, or to say we 
are pleased that Lyndon Johnson signed the Civil Rights Act in 
1964, after opposing civil rights, but he should have gone 
further and demanded that all businesses adopt an affirmative 
action hiring plan.
    To judge the words and actions of these civil rights 
champions in the 1940's, 1950's and 1960's by a 2002 standard 
would leave them wanting. We must remember that in Mississippi 
and other Southern States in the 1960's, most elected 
prosecutors sat on their hands when the Klan committed acts of 
violence.
    Young Charles Pickering had to deal with white citizens and 
politicians who resisted integration and resisted civil rights. 
He had to deal with these people in a language that would not 
incite further violence and with requests for action that he 
had a chance of getting people to take. He did so with moral 
courage, and because he acted with courage at such a young age, 
Charles Pickering was able to continue with more progressive 
actions decade after decade.
    In 1976, he hired the first African American field 
representative for the Mississippi Republican Party. In 1981, 
he defended a young black man who had been falsely accused of 
armed robbery of a teenage white girl. In 1999, he joined the 
University of Mississippi's Racial Reconciliation Commission, 
and in 2000 he helped establish a program to deal with at-risk 
kids, most of whom were African Americans, in Laurel, 
Mississippi, where 35 years earlier he had backed his 
principles with his and his family's lives. This, Madam 
Chairman, is a record of extraordinary courage. It is a record 
to be commended.
    In the years since the 1960's, attitudes in Mississippi and 
elsewhere have dramatically improved. Schools are integrated. 
The Klan is no longer a powerful force capable of intimidating 
whole communities, and the support from Mississippians, black 
and white, men and women, who have known Charles Pickering for 
decades has been overwhelming. This support no doubt results 
from the moral courage of Charles Pickering.
    In 1990, this Committee unanimously and favorably reported 
the nomination of Judge Pickering, and the Senate unanimously 
confirmed him to the district court bench. In his 11 years on 
the bench, he has handled approximately 4,500 cases. In 
approximately 99.5 percent of those cases, his rulings have 
stood and have not been reversed. The American Bar Association 
rated Judge Pickering ``well qualified'' for the Fifth Circuit 
Court of Appeals.
    I look forward to today's hearing to review Judge 
Pickering's record and his fitness for the Circuit Court of 
Appeals. I am certain that Senator Feinstein will conduct this 
hearing in the fair and even-handed manner, with which she 
approaches all of her duties here in the Senate.
    I will listen to the testimony and review the record, and I 
will measure the allegations and who makes them against the 
whole record and the courage of Judge Charles Pickering. I hope 
this hearing will be free from the half-truths and 
mischaracterization of his record or allegations of guilt by 
association that have been proffered against this nominee by 
some special interest groups.
    Thank you, Madam Chairman.
    Senator Feinstein. Thank you, Senator.
    It is my understanding that in the interest of time, the 
chairman is going to place his statement in the record.
    Is that correct?
    Chairman Leahy. That is right.
    [The prepared statement of Senator Leahy follows:]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    I begin by thanking Senator Feinstein for chairing today's hearing.
    Judge Pickering was nominated to a vacancy on the Fifth Circuit on 
May 25. Unfortunately, due to the change in the process that had been 
used by Republican and Democratic Presidents for more than 50 years, 
his ABA peer review was not received until late July, 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 nominees to other key posts.
    As a result of a Republican objection to a 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. The 
Committee proceeded during the August recess to hold two unprecedented 
hearings involving other judicial nominations, including a nominee to 
the Court of Appeals for the Federal Circuit.
    Judge Pickering was renominated in September. Although Judge 
Pickering's nomination 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. At that time, 
on October 18, the three Senate office buildings were closed because of 
the threat of anthrax contamination. Rather than cancel the hearing in 
the wake of the September 11 attacks and the anthrax-related closures 
and dislocations, 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. Thus, 
today's hearing is the first real opportunity interested citizens will 
have to witness Judge Pickering's testimony and, for most Senators, the 
first chance to question the nominee.
    There is, 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 several years were Marsha 
Berzon, Richard Paez, Margaret Morrow, Arthur Gajarsa, Eric Clay, 
William Fletcher, Ann Aiken and Susan Mollway, among others.
    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. Within a week of the first hearing, the 
Committee made a formal request to Judge Pickering for his unpublished 
opinions. Since October, Judge Pickering has been working to produce 
copies of those opinions to us. In fact, just last week, I was notified 
that 120 more of his unpublished opinions were discovered in the 
courthouse where he sits and just yesterday, barely hours before this 
hearing, another couple hundred opinions were provided. I doubt that 
anyone has had an opportunity to review those recently provided 
materials and we will have to determine how many, of what Judge 
Pickering estimated to be his 1100 unpublished opinions, remain 
unproduced.
    I have continued to work with Senator Lott and, as I told him in 
response to his inquiries in December, I proceeded to schedule this 
hearing for the first full week of this session. This hearing is being 
held less than four months after the October 18 session--not years 
after, as was the case with Richard Paez, William Fletcher and Susan 
Mollway.
    Normally, we would be convening in the Judiciary Committee's 
hearing room. But after we received requests the day before the hearing 
from Senator Lott's office for 15 seats to be reserved at the hearing 
and from the Department of Justice for more than 30 seats, we made 
last-minute arrangements to secure this larger room to accommodate 
them. Otherwise, every seat in our hearing room would have been 
reserved for the nominee and the Administration without any access at 
all to the public.
    I appreciate that Judge Pickering and his clerks have been 
providing materials, especially most recently as this hearing date 
approached. Other recent nominees have been asked by this Committee to 
fulfill far more burdensome requests than producing copies of their 
opinions. For example, four years after he was nominated to the Ninth 
Circuit, Judge Richard Paez was asked to produce a list of every 
downward departure 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. Judge Paez was also asked to produce docket sheets and 
attorney fee information on habeas corpus matters brought on behalf of 
defendants sentenced to death that were then pending before him. 
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. 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.
    While this context is important, I want to ensure that no one 
misunderstands what we are doing here today. We are not engaging in a 
game of tit-for-tat for past Republican practices. We have not delayed 
proceeding on this nomination, as so many nominations were delayed in 
recent years. Rather, this Committee must seriously consider the 
nomination. The responsibility to advise and consent on the President's 
nominees is one that I take seriously and that this Committee takes 
seriously.
    This Committee has asked Judge Pickering to produce a record of his 
judicial rulings. Given the nature of this nomination and given the 
disproportionately high number of unpublished opinions, this request 
seems 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.
    This nomination is not without controversy. Many have written 
letters in support and in opposition to this nomination. Those letters 
will be included in the record. This hearing is an important part of 
the record upon which committee members will rely when asked to decide 
whether or not to recommend favorably the nomination of Judge Charles 
Pickering to the United States Court of Appeals for the Fifth Circuit 
to the full Senate for its consideration.

    Senator Feinstein. Then we will proceed.
    Judge Pickering, if you would care to come forward and be 
seated? Would you please stand to be sworn in?
    Do you swear that the testimony given before this Committee 
will be the truth, the whole truth and nothing but the truth, 
so help you God?
    Judge Pickering. I do.
    Senator Feinstein. Thank you. Please be seated.
    If you would like to introduce any of your family--I know I 
had the pleasure of meeting your son, so I know at least he is 
here--if you would like to introduce your family or make some 
comments to the Committee, we would be very happy to receive 
them at this time.

 STATEMENT OF CHARLES W. PICKERING, SR., NOMINEE TO BE CIRCUIT 
                  JUDGE FOR THE FIFTH CIRCUIT

    Judge Pickering. Madam Chairman, I would like to introduce 
the members of my family who are here today: my wife, Margaret 
Ann, who was seated next to me; my son, Congressman Chip 
Pickering, and his wife, Leisha. My daughters, Paige Dunkerton, 
Allison Montgomery, and Christi Chapman, cannot be with us 
today, but I am sure they are watching somewhere if C-SPAN is 
covering this.
    I won't take the time to introduce my 19 grandchildren, as 
I did before. But I am happy to have my sister, Ellen, and her 
husband, Jimmy Walker, and my brother, Gene, and his wife, 
Karon Pickering, who are with us.
    I have a number of friends and supporters here that I am 
happy to have. I will not take the time to introduce them.
    Senator Feinstein. Thank you very much. Do you have a 
statement you would like to make at this time?
    Judge Pickering. I do, Madam Chairman, but I am not sure, 
with the constraints of----
    Senator Feinstein. It is up to you.
    Judge Pickering. Yes. Well, I would like to make a 
statement----
    Senator Feinstein. Please.
    Judge Pickering [continuing]. Because there have been a lot 
of things that have been said that I could not respond to and 
this is my first opportunity to do that and I would like to set 
the record straight on some things.
    Senator Feinstein. Please.
    Judge Pickering. I would like to express, first of all, my 
appreciation to Senators Cochran and Lott for their 
introduction at my last hearing and for their support of my 
nomination.
    I would like to briefly talk with you about my time on the 
bench and the 29 years that I spent practicing law. During my 
11 years as a judge, I have done my best to be fair and 
impartial and to follow the law. I am a firm believer in the 
adage ``we are a government of laws, not of men.'' I have great 
respect for the rule of law.
    In 1990 and again this October, I testified that I firmly 
believe that whomever one marries, whether of one's own race or 
of another race, is a matter of personal choice, and no State 
should pass a law against such marriages. Such laws are, I 
believe, unconstitutional. The Supreme Court so held in Loving, 
and I will follow that case.
    Further, while I have been on the bench, I have 
demonstrated my ability to do just that. To my recollection, I 
have had three cases before me involving mixed-race marriages. 
I had a case before me in which the plaintiff was suing for 
personal injuries. He was planning a mixed-race marriage. The 
jury returned a verdict for only the amount of the medical 
bills. I felt the verdict was inadequate and that the jury had 
been prejudiced because of the planned interracial marriage and 
because of race. I set the jury verdict aside.
    In a criminal case, a young couple who had contracted an 
interracial marriage pled guilty to drug charges. I treated 
them fairly. Even since my last confirmation hearing here in 
October, I received a letter from the wife, who is in Houston, 
Texas, expressing her appreciation for my fairness and 
courtesy.
    In a third case, a young man was convicted of cross burning 
in the yard of a mixed-race couple. During the sentencing, I 
described the cross burning as a reprehensible, heinous crime, 
a despicable act, and that I had no feeling that the incident 
should be swept under the rug, that such conduct would not be 
tolerated, that we have got to stamp out that type of conduct, 
and that the young man was going to the penitentiary. I 
suggested that while he was in the penitentiary, he should do 
some reading on maintaining good race relations.
    Although I have never had an abortion case of any kind to 
come before me, I have had cases where other issues of sexual 
privacy were involved. In a trial where homosexual men were the 
victims of a scam, at the very beginning of the trial it was 
evident that the defendants intended to mount a defense on gay-
bashing. I stopped the proceedings, did not wait for an 
objection, and I gave the jury a cautionary instruction. I let 
it be known that there would be no gay-bashing in my courtroom, 
that homosexuals are entitled to the same protection as 
everyone else, no more, no less. There was no further gay-
bashing in that trial.
    In another case, a group of lesbians had established a 
cultural camp in rural Jones County. The local citizens 
strongly objected. Attorney General Janet Reno attempted to 
dispatch mediators to mediate the situation under the Civil 
Rights Act. A group of local citizens filed a lawsuit against 
Ms. Reno individually and in her official capacity to prohibit 
her dispatch of the mediators and complaining about comments 
she had made.
    I held a conference with the attorneys representing Ms. 
Reno and the plaintiffs, and recommended to the plaintiffs that 
they should dismiss their complaint. Ms. Reno's attorneys and 
the plaintiffs agreed to an order that I recommended. Frank 
Hunger, who was Assistant Attorney General, later told me of 
Ms. Reno's appreciation for the courtesy and manner in which I 
handled her case.
    In another case where a female was seeking damages for 
personal injuries, the testimony of one of the witnesses 
created the impression of a lesbian relationship. In this case, 
the jury returned a verdict for exactly what the defense 
attorney suggested. I again felt that the verdict was too low 
and that the jury had been biased by the impression of a 
lesbian relationship and race. I also set that jury verdict 
aside. Madam Chairman, these are the only two jury verdicts 
that I have set aside in 11 years on the bench.
    During my time on the bench, I have handled cases where I 
disagreed with the controlling law, but nevertheless put aside 
my personal views and followed the law. One of those cases was 
the Suggs case, which involved ERISA. I feel, and still feel, 
that the Federal courts have misinterpreted ERISA, contrary to 
the language of the Act, contrary to congressional intent. The 
results have been to deprive people of health benefits.
    I wrote an opinion of some 70 pages, approximately half of 
which was devoted to analyzing and applying controlling law, 
and the other half was devoted to explaining why I think 
Federal courts have misinterpreted the ERISA statute. Despite 
disagreement, I followed controlling law. However, that part of 
my opinion disagreeing with the controlling authority--the 
dicta, if you will--was widely quoted in the House of 
Representatives this past year in support of a patient's bill 
of rights.
    In another case involving the Federal Arbitration Act, I 
disagreed with the factual determination of the arbitrator. But 
nevertheless, because the law dictated that I should affirm 
this opinion, I did.
    Madam Chairman, on numerous occasions I have had to decide 
whether I could put aside my personal opinions and follow the 
law. I have, and I will. I will follow the law even when I 
disagree with it.
    Now, I have some comments about the Klan days and about the 
Sovereignty Commission, if the Chair will allow me time to go 
over those two issues that have been raised.
    Senator Feinstein. Of course, you can complete your 
statement.
    Judge Pickering. Yes.
    Senator Feinstein. Because there is such interest, I would 
urge you to be as brief as you can so we can get to the 
questions.
    Judge Pickering. Well, prior to becoming judge, I did 
serve, as has been mentioned, and I did prosecute and condemn 
Klan activity. The prosecuting attorney in the Vernon Dahmer 
case, in Hattiesburg, called and asked if I would come down and 
testify against the Imperial Wizard of the White Knights of the 
Ku Klux Klan in 1967, and I agreed to do so.
    We both agreed that a subpoena should be issued. One was 
issued. I went and I testified that he had a bad reputation for 
peace and violence.
    In 2000, I had a petition filed in my court to release Sam 
Bowers on habeas corpus. He has since been convicted. Madam 
Chairman, there have been changes with all of us, with the 
State of Mississippi. But in the last 5 years, both the murder 
of Medgar Evers, one of the original civil rights workers in 
Mississippi, whose brother, Charles Evers, is here in support 
of my nomination today, was re-tried and the defendant, Byron 
de la Beckwith, was sentenced and died in prison.
    Sam Bowers is now in prison in the State of Mississippi in 
State prison for the fire-bombing death of Vernon Dahmer. The 
case that I testified in resulted in a hung jury They filed 
that petition and after I testified against Sam Bowers, I lost 
my next election. One of the reasons was because of my stand 
against the Klan. In 2000, when they filed this habeas corpus, 
they asked me to recuse myself, saying that Sam Bowers and the 
Klan had been responsible for defeating me in my two races for 
statewide race.
    I had a friend who told me that he had infiltrated the Klan 
for the FBI. He told me of going to Klan meetings in pastures 
or wooded areas in the middle of the night with torches and 
Klan speakers perverting Christianity by crossing a sword and a 
pistol over an open Bible and talking about going out and 
burning the homes of African Americans and those who defended 
them.
    The Klan was committing the same kind of diabolical acts 
that have recently been committed against America also in the 
name of religion. He expressed his conviction that these people 
were dangerous and that someone had to do something about it. 
He said that after going to Klan meetings where they had been 
worked into a frenzy by Klan speakers that he had driven by our 
home to make sure no one was burning it. This was a sobering 
moment.
    I also had the experience during that time of going to a 
funeral home and slipping into the chapel because a Klan 
informant had called and wanted to give some information. I was 
not at home, so then he called the district attorney, but he 
didn't want the district attorney to tell anyone else that he 
was meeting with them. The district attorney was afraid it was 
a set-up, so he asked if I could take a gun and go into the 
funeral home and cover the parking lot while he met with him. I 
did that.
    Then I did, as the Senators mentioned, defend this young 
African-American charged with robbing a white female. That also 
was not a popular decision.
    Madam Chairman, I took some stands during this time and 
although it was costly, I have no regrets. The State of 
Mississippi--none of our States have been perfect in any of 
these areas, but we have made tremendous progress.
    There are those that would say that we would have made that 
progress without the intervention of the FBI. I did not believe 
it then and I do not believe it now. We would not have made 
progress and they would not have obtained those rights had it 
not been for the brave young men and women who took a stand to 
obtain those rights, the massive infusion of FBI agents. And, 
yes, I will say that we would not have made the progress that 
we made if it had not been for some local officials who were 
also willing to stand and take a stand in that area.
    Now, the Sovereignty Commission issue: In 1990 when I 
testified before this Committee, Senator DeConcini explained 
that the Sovereignty Commission was a State-funded group which 
was established in 1956 as a response to increased Federal 
intervention in State matters, especially those pertaining to 
civil rights.
    He asked me why, as a State Senator between 1972 and 1978, 
I voted to seal the records of the commission, and I explained 
that I did so because that was the only alternative, that the 
choice was between destroying them or sealing them and that I 
voted to seal them.
    Now, I told him that during the time that I was in the 
State Senate, I do not recall really the commission doing 
anything. It really was de facto abolished; it was not 
functioning. It was something that was still on the books and 
there was a disagreement as to how to handle it, how to get rid 
of it, since it was an existing agency.
    I testified that I was never an officer of the Sovereignty 
Commission, that I never had any contact with that agency, that 
I disagreement with the purposes and the methods and some of 
the approaches that they took. That was my testimony in 1990 
based upon my recollection of events that had occurred some 13 
to 18 years before.
    After reviewing the records, I can say the following today. 
First, I was not an officer of the Sovereignty Commission. My 
recollection in 1990 was completely accurate on that account.
    Second, my record as a county attorney from 1964 to 1968, 
when I assisted the FBI in investigating and prosecuting the 
Klan's attacks on African-Americans and civil rights workers, 
showed that I disagreed with the commission's efforts against 
increased Federal law enforcement intervention in State matters 
pertaining to civil rights. And I have already told you that, 
in my opinion, we would not have solved that problem without 
that intervention. So my recollection in 1990 on that account 
was entirely accurate.
    Third, the choice in 1977 was to abolish or to seal the 
records, and my recollection on that account was correct. As an 
aside, although I had not been asked about my pre-1977 votes 
regarding the Sovereignty Commission, my review of the records 
show that I voted for two appropriation bills for the 
commission prior to 1977. It is my understanding that the 
commission still had some old employees, but its days of high-
profile investigations were long over.
    The reason for not voting against these appropriation bills 
was practical politics. I could have taken a single stand in 
1972 to de-fund the commission. As a first-year State Senator, 
however, my effort would have failed. There was simply not 
enough votes in the senate to kill the commission in 1972. 
Indeed, an attack on the commission in 1972 would have done 
more harm than good by causing the old supporters of the 
commission to rally support for it again. By 1977, however, 
there were a majority of senators who were willing to vote to 
abolish the commission and that is how I voted.
    Fourth, my view of the record has shown that my 
recollection in 1990 that I had no contact with the Sovereignty 
Commission was partially accurate and partially inaccurate. I 
never attended a hearing or a meeting of the commission, and 
never participated in helping the commission investigate a 
civil rights organization or any other organization or person. 
My 1990 recollection was accurate to the extent that it had to 
do with the main purposes of the commission, which was civil 
rights.
    Next, my review of a document that was released after my 
1990 testimony shows that I did have one brief contact 18 years 
earlier, in 1972, as part of a group of State legislators who 
asked a commission employee to be kept informed about a 
pulpwood haulers union. While this document has refreshed----
    Chairman Leahy. Judge, I am sorry. You asked the employee 
what?
    Judge Pickering. I asked the employee--as I recall it, 
Senator, I was going down the corridor of the capital and 
someone called me over and introduced me and said this is an 
employee of the capital. He said, I have some information about 
activities in your area, Masonite plant, union organizing.
    And at that time, we had just gotten through this strike. 
The Ku Klux Klan had infiltrated the labor union to the point 
that when the strike was over, the AFL-CIO took over the local 
union and placed it under a trusteeship. They had murdered a 
security guard. They were shooting into homes and beating 
people.
    And as he made this statement that he had this information, 
we were concerned that there be no further violence at the 
Masonite plant and I made, to the best of my recollection--
Senator, I don't have a very specific recollection, but a vague 
recollection that I said, well, keep me informed if you find 
out anything that is going on there that would be detrimental 
to our area. That is the last that I recall of any contact in 
that area.
    Now, I also--one other comment I should make in that regard 
is that the Governor and lieutenant Governor, by law, were ex 
officio members of the Sovereignty Commission. From 1961 to 
1966, I was law partners with Carroll Gartin. He was lieutenant 
Governor from 1964 until his death in 1966.
    Additionally, William Winter was lieutenant Governor during 
my first 4 years in the senate. Carroll Gartin was defeated for 
Governor in 1959 by segregationist Governor Ross Barnett and 
the White Citizens Council. Governor William Winter was a 
member of President Clinton's Commission on Race and is one of 
the most respected leaders of Mississippi promoting better race 
relations.
    I talked with Governor Winter this morning and I learned 
that he had issued a statement yesterday condemning the guilt 
by association of implying that Carroll Gartin, who is now 
deceased, was a racist. Governor Winter and Governor Gartin 
both were members of this commission ex officio. I had regular 
contact with both of these gentlemen during that timeframe, but 
I have no recollection of ever discussing the Sovereignty 
Commission with either one of them.
    The Governor was also a member of the commission, as were 
other public officials, and I would have contact on official 
business with them, but I remember no contact with any of these 
relative to the Sovereignty Commission. Additionally, when I 
started cooperating with the FBI, I was still practicing with 
Carroll Gartin. Carroll Gartin was aware of what I was doing 
and he never criticized nor requested that I back up.
    Madam Chairman, if I might say just one brief thing, when 
the possibility arose of my being nominated to the Fifth 
Circuit, I had no intention or thought of becoming involved in 
any cause or in anyone's politics. I was simply interested in 
being promoted to the next court up to finish out the final few 
years of my judicial career.
    The charges that have been made against me have been 
hurtful and they have been painful. I have a record of standing 
up for equal protection, respecting the rule of law, and making 
efforts to promote racial harmony for more than four decades. I 
am proud of that record.
    I appreciate the fact that you did give me the opportunity 
to respond and I will be happy to respond to your questions.
    The biographical information of Judge Pickering follows.]

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    Senator Feinstein. Thanks very much, Judge. We certainly 
appreciate that.
    Let me just tell you why I think this is so important. 
There are many who believe that your seat on the Fifth Circuit 
is really going to be pivotal on many critical questions that 
are very controversial in our society. I would like to confine 
my questions on this round to three of those issues. The first 
is a woman's right to choose, the second is appropriate 
regulation of weapons, and the third one is civil rights.
    So let me begin with the first question. In your October 
2001 hearing, you stated that you intend to follow Supreme 
Court precedent on the issue of choice. Now, I am trying to 
reconcile your testimony with your years of advocacy against a 
woman's right to choose.
    I am particularly concerned about your vote as a 
Mississippi State Senator for a resolution endorsing a 
constitutional amendment to ban abortion, except in the case of 
the death of the mother or rape. As you know, this would 
substantially overturn Roe v. Wade, which is the case which 
essentially provides for choice within certain constraints.
    The resolution you voted for stated in part, and I quote, 
``All human life is entitled to the protection of laws which 
may not be breached by act of any court or legislature, or by 
any judicial interpretation of the Constitution of the United 
States.''
    My question is can you explain your support for this 
amendment and for laws that may not be abridged by any judicial 
interpretation of the Constitution of the United States? Are 
there certain laws that trump the Constitution?
    Judge Pickering. No, there are no laws that trump the 
Constitution. Madam Chairman, I recognize and know the 
difference between a personal opinion or view and a political 
position or view and a judicial decision. When I take an oath 
as a judge to uphold the Constitution of the United States, 
that means to uphold the Constitution as interpreted by the 
Supreme Court, and I will do that.
    Senator Feinstein. And what is your position today on a 
constitutional amendment to ban abortion?
    Judge Pickering. Well, you know, my personal views, I 
think, are immaterial and irrelevant, and it would be 
inappropriate for me to share my personal views. I will tell 
you that I will follow the Constitution and I will apply the 
Supreme Court precedent.
    Senator Feinstein. Thank you very much. Let me go to the 
issue----
    Judge Pickering. And I have, Madam Chairman. I have shown 
that I can take a position that is a legal position, regardless 
of what my personal view is. I have demonstrated that in 10 
years on the bench.
    Senator Feinstein. Thank you. Let me go to the issue of 
guns. In United States v. Lopez, the Fifth Circuit, and later 
the Supreme Court, struck down a law regulating guns near 
schools based on the argument that Congress had overstepped its 
bounds. This case joined several cases in recent years that 
have challenged the traditional role of Congress in addressing 
issues of national concern with national regulations. I am 
concerned that this trend threatens to prevent Congress from 
addressing problems that the Nation is asking us to address--
choice, guns, and others.
    I would like to ask you to speak to this case and your view 
of it. Did Lopez represent to you one step in a continuing 
trend toward limiting congressional power to legislate? Did it 
strike the proper balance? And, specifically, please comment on 
the extent to which you believe that Congress can regulate in 
the area of dangerous firearms, particularly when those weapons 
travel in interstate commerce, affect commerce and tourism, and 
have such a devastating impact on the children of this country.
    Judge Pickering. Madam Chairman, I have already addressed 
that issue. I had one of the original Brady gun cases filed in 
my court and I found that that was a proper exercise of 
congressional authority. I upheld the constitutionality of it. 
I did not uphold the direction of the sheriff to check records, 
but I found that it was severable and that the rest of the law 
was enforceable.
    Senator Feinstein. So then you would support the role of 
Congress to regulate in this area?
    Judge Pickering. I did so. I found that to be true in that 
case.
    Senator Feinstein. Thank you very much. Now, let me just 
touch on my civil rights question. The Fifth Circuit has the 
largest percentage of minorities of any circuit in the country. 
If you are confirmed, you will be rendering decisions in a 
circuit where 43 percent of the population comes from minority 
groups.
    In light of this, I am concerned about a number of votes 
you cast as a Mississippi State Senator on the issue of civil 
rights for African-Americans and other minorities. And you 
touched on some of this, but let me quickly state it.
    You voted in 1972 and 1973 for appropriations for the 
Sovereignty Commission. As you pointed out, that was an 
organization established in the 1950's to oppose desegregation 
in Mississippi. In 1973 and 1975, you voted for reapportionment 
plans that continued to provide for county-wide voting in State 
Senate elections rather than creating single-member districts, 
thus diluting African-American voting strength.
    In 1976 and 1979, you voted for open primary legislation 
that abolished party primaries and eliminated the possibility 
of winning a general election with less than a majority vote. 
One of your three African-American colleagues in the 
Mississippi House argued that, and I quote, ``an open primary 
bill had racial overtones because it countered the effects of a 
potential block vote by the black community.''
    How would you explain each of these votes to the 12 million 
minority residents of the Fifth Circuit? And looking back on 
these votes, would you cast the same votes today that you did 
in the 1970's?
    Judge Pickering. Madam Chairman, on the open primary bill, 
I did not view it at all as eliminating the possibility of 
anyone winning an election. The truth of the matter is that 
African-Americans did not vote in Mississippi in any numbers at 
all until 1971. So at the time--and incidentally, on that 
election I ran--I was a Republican nominee for the State 
Senate. Mayor Charles Evers was running as an independent for 
Governor that year, and he and I were on the ballot that was 
distributed in the African-American community. They knew my 
record of what I had done previously and I received two-thirds 
of the African-American vote.
    Now, the open primary bill from my standpoint--and, again, 
I have indicated to you that I know the difference between 
political decisions and judicial decisions. At that time, I 
felt that one of the reasons the Republican Party had not made 
more progress was because all of the voters, practically all of 
them--and whenever I am talking about voters at that time, I am 
basically talking about white voters because this was just--the 
African-American vote was something that had just come on the 
scene.
    You must realize how much progress we have made since that 
time. It is hard to realize that that was the first year that 
they really participated. Well, it was my feeling, and the 
reason I supported the open primary bill--there were not more 
than one or two instances where any African-Americans had won--
I didn't know of any, but there might have been some in other 
parts of the State where they had won in that manner, but that 
was not a general practice.
    I saw it as a vehicle for the Republican Party to make 
progress because if the voters--the voters were not going to 
come vote in a Republican primary because the candidates were 
all in the Democratic primary. The candidates weren't going to 
come run in the Republican primary because the voters were in 
the Democratic Party. So you had a situation of which comes 
first, the chicken or the egg, and I felt like this would give 
an opportunity for the party to grow and that is simply the 
reason I was for an open primary.
    Now, as the redistricting plans, yes, if I was voting on 
those measures today, I would vote differently. At that time, 
we did not have the information that we have now to break down 
with the computers and did not have the ability that you do. 
And reapportionment has changed drastically. I was elected in 
a--when I went to the Senate, reapportionment plan already 
there, and these plans had to be approved by the Justice 
Department. So the plan we adopted could not go into effect 
without being approved by the Justice Department.
    So I had no intent at that time of depriving anyone of the 
opportunity to elect someone to office. In fact, I don't recall 
very much debate about the issue. Going back that far, I am 
sure that if you all--perhaps maybe you wouldn't have the same, 
but remembering the bills you--unless it was something that you 
were involved in, you don't have that much specific 
recollection. I was very much involved in open primary. I 
remember that, but the others I don't remember that much about.
    As far as the Sovereignty Commission, there was an effort, 
as I recall--and, again, I thought when I testified before that 
it had ceased to be functioning when I arrived at the senate. 
It now turns out that it functioned to some degree for a year-
and-a-half after I was there.
    Governor Winter was on that commission during that time and 
he and I talked about it briefly this morning. But I was trying 
to get ready for my testimony, so I didn't have time to have a 
long conversation with him about it. But there was an effort, 
as I recall, to try to change the direction of it. We felt that 
it had too much baggage, it had done too much wrong, it had to 
be abolished, and we did.
    Senator Feinstein. But you voted for appropriations to 
support it.
    Judge Pickering. Apparently, I did. I have no independent 
recollection of it, but the records indicate that.
    Senator Feinstein. Thank you. I see my time is up and I 
will call on the ranking member, Senator Hatch.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Madam Chairman, and thank 
you for being willing to grant me just a little bit extra time 
as ranking member to make my opening statement and, of course, 
hopefully ask a couple of questions.
    I would like to introduce several distinguished 
Mississippians who are here today in support of Judge 
Pickering. These individuals have known Judge Pickering for 
many years and know his strong record on civil rights and his 
fairness as a judge. So I want to recognize just a few of these 
individuals.
    Mr. Charles Evers--if you would stand up, please, sir----
    [Mr. Evers stood.]
    Senator Hatch [continuing]. Brother of slain civil rights 
leader, Medgar Evers. He is a civic leader in Mississippi and 
has held numerous positions, including Mayor of Fayette, 
Mississippi. We are proud to have you here.
    Frank Montague, former President of the Mississippi Bar 
Association.
    [Mr. Montague stood.]
    Senator Hatch. The Honorable Johnny Williams, Chancery 
Judge of Forrest County, Mississippi.
    [Judge Williams stood.]
    Senator Hatch. We are so proud to have you here, both of 
you.
    Mr. Mike McMahan, a trial lawyer in Hattiesburg, 
Mississippi, who practices in Judge Pickering's courtroom on a 
regular basis. We are proud to have you here, as well.
    [Mr. McMahan stood.]
    Senator Hatch. Mr. James King, who is the first African-
American hired to work as a field representative by the 
Mississippi Republican Party. He was hired by Charles Pickering 
when he was directing the party in the 1970's.
    [Mr. King stood.]
    Senator Hatch. So we are honored to have all of you here, 
and others as well.
    This is the second hearing that this Committee has convened 
on the nomination of Charles Pickering, Sr., to be Judge of the 
United States Court of Appeals for the Fifth Circuit. I am 
aware of some of the allegations that have been levied against 
Judge Pickering and I have been interested in hearing his 
response here today, as I feel sure that we will during the 
course of this hearing.
    I am, however, troubled at what appears to be a national 
agenda by a coalition of leftist interest groups who have spent 
months hunting around for an excuse to use the Pickering 
nomination as a way to attempt to paint this administration's 
nominees as extreme. Although I am concerned by the underlying 
agenda, I believe they have picked the wrong nominee for that.
    There appears to be a real disconnect here. We have 
received nearly 100 letters of support for Judge Pickering's 
nomination to the Fifth Circuit. They include letters from 18 
current or former presidents of the Mississippi State Bar. We 
have received letters from 27 members of the African-American 
community, including 4 present or former NAACP officials, 10 
public officials and 4 pastors.
    Eighteen self-professed Democrats have sent letters, 
including two former Governors and three former lieutenant 
Governors. And we have received letters from 57 practicing 
attorneys, including 5 civil rights attorneys, 13 criminal 
defense attorneys, 10 plaintiff's lawyers, and 14 civil defense 
lawyers. Any judge that can get along with that crowd is doing 
pretty good, in my opinion.
    Madam Chairman, I would like to submit copies of these 
letters for the record.
    Some of the Mississippians who have written us have made 
the trip here to D.C. to show their support for Judge 
Pickering. One such supporter, as I have mentioned, is Charles 
Evers, brother of slain civil rights leader Medgar Evers.
    In an editorial that appeared in today's Wall Street 
Journal, Mr. Evers documented Judge Pickering's commitment to 
civil rights over the past four decades, which has included 
testifying against the Imperial Wizard of the Ku Klux Klan in 
the 1960's, hiring the first black political staffer in the 
history of the Mississippi Republican Party in the 1970's, 
representing an African-American man accused of robbing at 
knife-point a 16-year-old white woman in the 1980's, and 
leading a charge to establish the Institute of Racial 
Reconciliation at the University of Mississippi in the 1990's.
    Mr. Evers explained his reasons for coming forward in 
support of Judge Pickering as follows, quote: ``In recent days, 
I have been saddened and appalled to read many of the 
allegations which have been put forth about 
Judge...Pickering...These allegations are mostly made by groups 
with a Washington, D.C., address and a political agenda, not by 
anyone with real knowledge of Judge Pickering's long and 
distinguished record on civil rights. As someone who knows 
Judge Pickering and is familiar with his commitment on matters 
of race, I could not sit by and watch these groups' attempts to 
destroy a good man. Let me tell you about the Charles Pickering 
many of us in Mississippi have known for well over 30 years,'' 
unquote.
    Madam Chairwoman, I would like to submit a copy of this 
editorial for the record as well.
    Senator Feinstein. Without objection.
    Senator Hatch. Others who could not be here today 
nonetheless wrote in ardent support of Judge Pickering. For 
example, Jack Dunbar, former President of the Mississippi Bar, 
wrote, quote, ``I am a Democrat and would not want you to 
confirm any person to the Federal courts of this nation who I 
felt was gender or racially biased. I have never known Judge 
Pickering to be a person or judge that was anything other than 
fair and impartial in his conduct toward women or minorities,'' 
unquote.
    William Winter, former Democratic Governor of Mississippi, 
wrote about Judge Pickering, quote, ``While he and I have not 
always been in agreement on certain public issues, I know he is 
a man of reason and sound judgment. He is certainly no right-
wing idealogue. He will bring a fair, open and perceptive mind 
to the consideration of all issues before the court...He has 
been one of this state's most dedicated and effective voices 
for breaking down racial barriers,'' unquote.
    And Shane Langston, President of the Mississippi Trial 
Lawyers Association, wrote of Judge Pickering, quote, ``We know 
that he applies the law fairly and equally with regard to 
economic status, party affiliation, race, sex, or 
religion...Many members of the MTLA are African-Americans. We 
represent tens of thousands of African-Americans. We prosecute 
more race discrimination cases and claims of civil rights 
violations than any other legal association in the State of 
Mississippi. Members of our association and I represented the 
State conference of the NAACP in a historic challenge to the 
'Mississippi State Flag' regarding its divisive Confederate 
battle symbol. Our organization would never support a judicial 
candidate with a record of hostility or unfairness toward 
litigants claiming civil rights violations,'' unquote.
    These Mississippians, who know Judge Pickering best, urge 
his confirmation. Those fighting Judge Pickering's nomination, 
in contrast, seem to consist primarily of a host of Washington 
lobbyists representing leftist special interest groups whose 
main goal is to fight the Pickering nomination in an organized 
attempt to change the ground rules and impose their political 
litmus test for all of President Bush's judicial nominees.
    After an 8-year hiatus, these groups are back on the scene, 
ready to implement an apparently vicious strategy of 
``Borking'' any judicial nominee who happens to disagree with 
their view of how the world should be. I really like the open-
mindedness of these groups to views different from theirs.
    An article in Monday's Legal Times provides a glimpse of 
what is going on behind the scenes of this confirmation 
hearing. The article reported, quote, ``As a young lawyer in 
Jones County, Mississippi, in the 1960's, Charles Pickering Sr. 
helped put Klansmen in jail. In the early 1990's, when 
preservationists and black activists clashed over a 'colored 
only' sign in a county courthouse, Pickering helped craft a 
compromise that the black community applauded. And as a Federal 
trial judge, Pickering has tried to keep young African-
Americans out of the criminal justice system, convening a group 
of local civic leaders to try to solve the problem. When the 
Senate Judiciary Committee meets February 7 to consider 
Pickering's nomination to the U.S. Court of Appeals for the 5th 
Circuit, his liberal opponents won't be focused on these 
aspects of the nominee's record. Liberal activists have combed 
through the decisions that Pickering has written in 11 years as 
a U.S. district judge in Hattiesburg, Mississippi, and have 
concluded that Pickering's confirmation 'poses a grave danger 
to our rights and liberties.' But a Legal Times analysis of 
Pickering's important rulings, as well as interviews with 
community leaders in his home state, offers an alternative view 
to the liberals' conclusions that Pickering is racially 
insensitive and indifferent to constitutional rights.''
    The article continued, quote, ``[A] look at the 64-year-old 
Pickering's record shows that although he has often ruled 
against civil rights claims, the facts of the cases have often 
tilted strongly against the litigants claiming discrimination. 
And although in some voting rights cases he has doubted the 
correctness of relevant Supreme Court decisions, he has 
followed the law in making his rulings,'' unquote.
    Madam Chairwoman, I ask to submit the full text of this 
article for the record.
    Senator Feinstein. Without objection.
    Senator Hatch. It is against this backdrop that we must 
examine the allegations we have heard and evaluation their 
credibility. I am concerned about the tenor and the tone of the 
attacks that intolerant leftist special interest groups have 
launched against Judge Pickering because they indicate to me a 
broader agenda at work here.
    I see these attacks as part of an organized campaign by the 
usual suspects to, quote, ``change the ground rules,'' unquote, 
for the confirmation of Federal judges. This is precisely what 
some professors and some activists advocated to the 42 Democrat 
Senators who attended a retreat last year in Pennsylvania, as 
reported by the New York Times, if that report is accurate.
    The goal of that retreat was to plot a way to hinder the 
confirmation of President Bush's judicial nominees, according 
to the Times. The conclusion they reached, according to someone 
in attendance who was quoted by the Times, was, quote, ``for 
the Senate to change the ground rules,'' unquote.
    Today's hearing is the culmination of nearly a year of 
effort to change the ground rules by injecting a political 
litmus test into the confirmation process. We have even had 
hearings on injecting political ideology into the confirmation 
process. Even Lloyd Cutler, former President Clinton's White 
House Counsel, thought this strategy was misguided.
    Of course, those legal experts who were invited to testify 
at the first of these hearings by my Democratic colleagues all 
testified that injecting politics into the confirmation process 
is the course the Senate should take. I think that is pathetic.
    To further put this hearing in the appropriate context, I 
would like to make an additional observation about how very 
easy it is to make a political statement in Washington, D.C., 
in 2002, before a friendly crowd who wants to hear it, and 
indeed demands to hear it, given their political muscle. It is 
quite another thing to testify against the Imperial Wizard of 
the Ku Klux Klan in Mississippi in 1967, as Charles Pickering 
courageously did, despite great risk to himself and his family.
    Although the physical safety of Judge Pickering and his 
family remained intact, his political career was not so lucky. 
He was defeated in his next election after testifying against 
the KKK. Years later, the former Imperial Wizard against whom 
he testified claimed credit for defeating Judge Pickering's bid 
for the U.S. Senate in 1966 and for State Attorney General in 
1979. Any Washington interest groups who question Judge 
Pickering's commitment to civil rights would do well to 
remember this.
    Now, I have a number of questions, but I will reserve those 
for the second round, if there is one.
    Senator Feinstein. There will be one.
    Senator Hatch. If there will be one, I will reserve those, 
and I appreciate you giving me just that little additional 
time.
    I don't mean to malign anybody here, but I don't want you 
maligned either.
    [Laughter.]
    Senator Hatch. Well, truth is truth. I don't want you 
maligned either.
    And I will tell you something: I get a little sick of some 
of this stuff that happens about every time we get a Republican 
President. So I just wanted to make these points and I think 
they are points that needed to be made.
    Thank you, Madam Chairman.
    [The prepared statement of Senator Hatch follows:]

Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah

    This is the second hearing that this Committee has convened on the 
nomination of Charles Pickering, Sr., to be a judge on the United 
States Court of Appeals for the Fifth Circuit. I am aware of some of 
the allegations that have been levied against Judge Pickering, and I am 
certainly interested in hearing his response, as I feel sure that we 
will during the course of this hearing. I am, however, 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 this Administration's 
nominees as extremist. Though I am concerned by the underlying agenda, 
I believe they have picked the wrong nominee for that.
    There appears to be a real disconnect here. We have received nearly 
100 letters of support for Judge Pickering's nomination to the Fifth 
Circuit. They include letters from 18 current or former Presidents of 
the Mississippi State Bar. We have received letters from 27 members of 
the African-American community, including 4 present or former NAACP 
officials; 10 public officials; and 4 pastors. Eighteen self-professed 
Democrats have sent letters, including 2 former Governors and 3 former 
Lieutenant Governors. And we have received letters from 57 practicing 
attorneys, including 5 civil rights attorneys, 13 criminal defense 
attorneys, 10 plaintiff's lawyers, and 14 civil defense lawyers.
    Some of the Mississippians who have written us have made the trip 
here to DC to show their support for Judge Pickering. One such 
supporter is Charles Evers, brother of slain civil rights leader Medgar 
Evers. In an editorial that appeared in today's Wall Street Journal, 
Mr. Evers documented Judge Pickering's commitment to civil rights over 
the past four decades, which has included testifying against the 
Imperial Wizard of the Ku Klux Klan in the 1960s; hiring the first 
black political staffer in the history of the Mississippi Republcan 
Party in the 1970s; representing an African-American man accused of 
robbing at knife point a sixteen year old white woman in the 1980s; and 
leading the charge to establish the Institute of Racial Reconciliation 
at the University of Mississippi in the 1990s.
    Mr. Evers explained his reasons for coming forward in support of 
Judge Pickering as follows: ``In recent days, I have been saddened and 
appalled to read many of the allegations which have been put forth 
about Judge . . . Pickering . . . . These allegations are mostly made 
by groups with a Washington, D.C., address and a political agenda, not 
by anyone with real knowledge of Judge Pickering's long and 
distinguished record on civil rights. As someone who knows Judge 
Pickering and is familiar with his commitment on matters of race, I 
could not sit by and watch these groups' attempts to destroy a good 
man. Let me tell you about the Charles Pickering many of us in 
Mississippi have known for well over 30 years.''
    Others who could not be here today nevertheless wrote in ardent 
support of Judge Pickering. For example, Jack Dunbar, former President 
of the Mississippi Bar, wrote, ``I am a Democrat and would not want you 
to confirm any person to the federal courts of this nation who I felt 
was gender or racially biased. I have never known Judge Pickering to be 
a person or judge that was anything other than fair and impartial in 
his conduct toward women or minorities.'' William Winter, former 
Democratic Governor of Mississippi, wrote about Judge Pickering, 
``While he and I have not always been in agreement on certain public 
issues, I know that he is a man of reason and sound judgment. He is 
certainly no right-wing ideologue. He will bring a fair, open and 
perceptive mind to the consideration of all issues before the court--. 
He has been one of this state's most dedicated and effective voices for 
breaking down racial barriers.'' And Shane Langston, President of the 
Mississippi Trial Lawyers Association, wrote of Judge Pickering, ``We 
know that he applies the la fairly and equally with regard to economic 
status, party affiliation, race, sex or religion--. Many members of the 
MTLA are African-Americans. We represent tens of thousands of African-
Americans. We prosecute more race discrimination cases and claims of 
civil rights violations than any other legal association in the State 
of Mississippi. Members of our association and I represented the State 
Conference of the NAACP in a historic challenge to the 'Mississippi 
State Flag' regarding its divisive Confederate battle symbol. Our 
organization would never support a judicial candidate with a record of 
hostility or unfairness toward litigants claiming civil rights 
violations.''
    These Mississippians, who know Judge Pickering best, urge his 
confirmation. Those fighting Judge Pickering's nomination, in contrast, 
seem to consist primarily of a host of Washington lobbyists 
representing left-wing special interest groups whose main goal is to 
fight the Pickering nomination in an organized attempt to change the 
ground rules and impose their political litmus test for all of 
President Bush's judicial nominees. After an eight-year hiatus, these 
groups are back on the scene, ready to implement an apparent vicious 
strategy of Borking any judicial nominee who happens to disagree with 
their view of how the world should be. I really like the open-
mindedness of these groups to views different from theirs.
    An article in Monday's Legal Times provides a glimpse of what is 
going on behind the scenes of this confirmation hearing. The article 
reported, ``As a young lawyer in Jones County, Miss., in the 1960s, 
Charles Pickering Sr. helped put Klansmen in jail. In the early 1990s, 
when preservationists and black activists clashed over a 'colored only' 
sign in a county courthouse, Pickering helped craft a compromise that 
the black community applauded. And as a federal trial judge, Pickering 
has tried to keep young African-Americans out of the criminal justice 
system, convening a group of local civic leaders to try to solve the 
problem.When the Senate Judiciary Committee meets Feb. 7 to consider 
Pickering's nomination to the U.S. Court of Appeals for the 5th 
Circuit, his liberal opponents won't be focusing on these aspects of 
the nominee's record. Liberal activists have combed through the 
decisions that Pickering has written in 11 years as a U.S. district 
judge in Hattiesburg, Miss., and have concluded that Pickering's 
confirmation 'poses a grave danger to our rights and liberties.' But a 
Legal Times analysis of Pickering's important rulings, as well as 
interviews with community leaders in his home state, offers an 
alternate view to the liberals' conclusions that Pickering is racially 
insensitive and indifferent to constitutional rights.''
    The article continued, ``[A] look at the 64-year-old Pickering's 
record shows that although he has often ruled against civil rights 
claims, the facts of the cases have often tilted strongly against the 
litigants claiming discrimination. And although in some voting rights 
cases he has doubted the correctness of relevant Supreme Court 
decisions, he has followed the law in making his rulings.''
    It is against this backdrop that we must examine the allegations we 
have heard and evaluate their credibility. I am concerned about the 
tenor and tone of the attacks that intolerant left-wing special 
interest groups have launched against Judge Pickering because they 
indicate to me a broader agenda at work here. I see these attacks as 
part of an organized campaign by the usual suspects to ``change the 
ground rules'' for the confirmation of federal judges. This is 
precisely what Professors Laurence Tribe and Cass Sunstein and activist 
Marcia Greenberger advocated to 42 Democratic Senators who attended a 
retreat last year in Pennsylvania as reported by the New York Times. 
The goal of that retreat was to plot a way to hinder confirmation of 
President Bush's judicial nominees. The conclusion they reached, 
according to someone in attendance who was quoted by the Times, was 
``for the Senate to change the ground rules.''
    Today's hearing is the culmination of nearly a year of effort to 
change the ground rules by injecting a political litmus test into the 
confirmation process. We have even had hearings on injecting political 
ideology into the confirmation process. Even Lloyd Cutler, former 
President Clinton's White House Counsel, thought this strategy was 
misguided. Of course, Professors Tribe and Sunstein, and Ms. 
Greenberger, who were invited to testify at the first of these hearings 
by my Democratic colleagues, all testified that injecting politics into 
the confirmation process is the course the Senate should take.
    To further put this hearing in the appropriate context, I would 
like to make an additional observation about how very easy it is to 
make a political statement in Washington, DC, in 2002 before a friendly 
crowd that wants to hear it and, indeed, demands to hear it, given 
their political muscle. It is quite another thing to testify against 
the Imperial Wizard of the Ku Klux Klan in Mississippi in 1967, as 
Charles Pickering courageously did despite great risk to himself and 
his family. Although the physical safety of Judge Pickering and his 
family remained intact, his political career was not so lucky: He was 
defeated in his next election after testifying against the KKK. Years 
later, the former Imperial Wizard against whom he testified claimed 
credit for defeating Judge Pickering's bid for the U.S. Senate in 1976 
and for state attorney general in 1979. Any Washington interest groups 
who question Judge Pickering's commitment to civil rights would do well 
to remember this.
    On a separate matter, I would like to note that today's hearing 
seems to have been orchestrated from the start. President Bush 
nominated Judge Pickering for the Fifth Circuit on May 25 of last year. 
For nearly five months, not a single person that I'm aware of raised a 
question with Judge Pickering about obtaining copies of any of his 
unpublished opinions. Then, a mere two days before what was to become 
his first confirmation hearing, Judge Pickering received an oral 
request from the Committee's Democratic staff to provide a list of all 
cases in which he had rendered an unpublished opinion. The request 
covered more than 900 cases, and was impossible to fulfill on such 
short notice. The request was then revised to include only those 
unpublished opinions in four categories of cases: Title VII, the 
Americans with Disabilities Act, ADEA, and the Equal Pay Act. Judge 
Pickering complied with this request on the following day.
    At his October 18 hearing, my Democratic colleagues requested that 
Judge Pickering provide the Committee with his unpublished opinions 
reversed by the Fifth Circuit--a mere 21 out of more than an estimated 
four thousand-plus cases that Judge Pickering has decided during his 
tenure on the federal bench. My friends across the aisle also agreed to 
limit their request for Judge Pickering's unpublished opinions to 
specific categories of cases in order to facilitate their production. 
Accordingly, they asked for those cases pertaining to Voting Rights 
Act, Fair Housing Act, labor relations, Section 1983, equal protection, 
habeas corpus, PLRA, and AEDPA cases. Incidentally, Judge Pickering 
responded in three separate letters the following day. Nevertheless, my 
Democratic colleagues announced their intention at the October hearing 
to schedule a second hearing before ever having seen these additional 
unpublished opinions.
    Within a week of the hearing, my Democratic colleagues requested 
more unpublished opinions in the categories of VAWA, Fourth Amendment, 
and Eleventh Amendment cases. Judge Pickering responded within three 
days to this request.
    Apparently dissatisfied with what they found--or did not find--in 
the opinions that Judge Pickering produced, and contrary to their 
original representation that they would limit their request to specific 
categories of cases, my colleagues then asked Judge Pickering for all 
of his available unpublished opinions, as well as the captions and 
names of defendants in all criminal cases to come before him. This 
request came nearly one month after his hearing. Judge Pickering 
responded by express mail on the same day that he received this 
request. On December 21, Chairman Leahy inquired further about 
additional unpublished opinions. He noted that the Committee had 
received only ``approximately 600 opinions,'' and asked for an 
accounting of the location of Judge Pickering's remaining unpublished 
opinions. He also questioned Judge Pickering's effort to obtain copies 
of his unpublished opinions. Judge Pickering responded, and has since 
been able to locate additional unpublished opinions which he promptly 
turned over to the Committee.
    As recently as January 31, Chairman Leahy insisted that Judge 
Pickering produce not only his unpublished opinions of which he is 
aware, but also ``potentially hundreds more of [his] unpublished 
opinions . . . in paper archives'' of which Judge Pickering is not 
aware. I cannot recall another nominee who has been subjected to a 
document production of this scope. If this continues for future 
nominees, we will have to start filing environmental impact statements 
along with such requests. Again, I don't take our role to thoroughly 
examine the qualifications of judicial nominees lightly. But in all 
seriousness, I have grave concerns about the appearance of a fishing 
expedition that this request has created. I sincerely hope that this is 
not the beginning of a pattern of what some may view as harassment for 
future nominees.
    I would also like to note that holding a second hearing solely for 
the purpose of examining the record of a single nominee is an 
extraordinary measure. During my six-year tenure as Chairman of this 
Committee during the Clinton Administration, we held second hearings 
for 9 nominees who, for various reasons, faced substantial opposition. 
In all but one instance, we considered the nominees facing a second 
hearing along with a slate of other nominees who were making their 
debut before the Committee. Likewise, the second hearing for all but 
one of these nominees took place in a new Congress, which allowed any 
new Members to evaluate the nominee first-hand. I might note that all 
but one of the nominees who endured second hearings before this 
Committee were ultimately confirmed. The nomination of the sole 
individual who was not confirmed was withdrawn. So, the very fact that 
we are here today considering only the nomination of Judge Pickering in 
the same Congress is an extraordinary matter.

    Senator Feinstein. Thank you very much, Senator Hatch.
    The Chair would just like to acknowledge I was present at 
that retreat and I don't remember anything like what you just 
quoted. So I want the record to reflect that.
    Senator Hatch. I am just quoting what the press said.
    Senator Feinstein. The chairman of the Committee, Senator 
Leahy.
    Chairman Leahy. Thank you, Madam Chair.
    Insofar as the confirmation hearing is about you, Judge 
Pickering, and not about everybody that Senator Hatch has been 
referring to, we may actually accomplish more by asking you 
questions than reading newspaper articles.
    I do that because this is an important hearing on your own 
record. A Federal judge gets a lifetime appointment. You 
already hold a lifetime appointment as a Federal judge and you 
understand that, and you know the impact Federal judges have on 
people's lives and their rights and all the freedoms that we 
cherish as Americans, basic rights, fundamental rights, 
fundamental fairness.
    Reaffirming or undercutting people's fundamental belief in 
our system of self-government really matters, and a Federal 
judge is in the forefront of that. In this circuit, it matters 
to the people and litigants in Mississippi and Louisiana and 
Texas, who are part of the Fifth Circuit, but it also matters 
to people in my home State of Vermont and the Second Circuit, 
where I am, because it can become the basis for Supreme Court 
decisions which would then bind all of us. That can be in civil 
rights or reproductive rights or privacy rights.
    These matter, and often it is the courts that are left with 
the responsibility for determining and protecting those rights 
in accordance with the Constitution. It is in our Federal 
courts of appeals that decisions are made that affect directly 
tens of millions of people in the circuit, and they affect what 
goes before the Supreme Court.
    Now, I understand your answer to the question asked by 
Senator Feinstein that you would follow the law, not your 
personal opinion. I have been here for 27 years hearing judges, 
and I have voted for, I would say, 99 percent of all the judges 
appointed by both Republican and Democratic Presidents. They 
always say that and I am sure they always mean it, but I have a 
problem with you in saying that, Judge, and let me very honest 
with you.
    You say you will follow the law, not your personal opinion. 
But I look at your record as a district judge and you have been 
reversed by the Fifth Circuit at least 26 times. Now, either 
that was because you followed your personal opinion or you 
didn't follow the law. It has got to be one or the other.
    I am told that when your court of appeals doesn't publish a 
decision in connection with a reversal or other decisions, it 
is because the court of appeals regards its decision as based 
on well-settled principles of law. Of your 26 reversals, you 
were reversed at least 15 times through an unpublished opinion. 
In other words, the Fifth Circuit said that it was such a well-
settled issue that you had committed mistakes as a judge in 
either not knowing the law or not applying the law in the case 
before you. So let me ask you about a couple of those.
    One is a recent 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, you adopted the recommendation of a 
magistrate and you granted the jail official's motion to grant 
them summary judgment. In other words, you said that the 
petitioner's claim of a First Amendment right to religious 
material which they wanted to get through the mail would be 
denied and you sided with the jailer.
    Now, the Fifth Circuit Court of Appeals, never once seen as 
a group of these liberals that Senator Hatch has referred to, 
said that the inmate's First Amendment rights had been 
violated. In explaining why you were wrong, the Fifth Circuit 
relied on and cited a published decision of its own several 
years before, called Mann v. Smith. In that case, they struck 
down a jail rule prohibiting detainees from receiving 
newspapers and magazines, holding it violating the Fifth 
Amendment.
    Now, in the Mann case, the prison officials had made much 
the same argument about fire hazards and clogged plumbing and 
all that you accepted in the Johnson case. But here was a 
decision right in your own circuit. Certainly, we would all 
agree that the district court judge in the Fifth Circuit is 
bound by the decisions of the Fifth Circuit.
    It was on all fours. It was decided 4 years before your 
decision. It was decided and said denying these magazines under 
these same arguments was a violation of the First Amendment. 
But you turned your back on your own circuit's decision. Why 
wouldn't that have been controlling? And, of course, the Fifth 
Circuit reversed you.
    Judge Pickering. Senator Leahy, let me first mention you 
have talked about 26 reversals, and there may be 26. My count 
was 25, but in any event----
    Chairman Leahy. Well, let's say 25 then.
    Judge Pickering. But 25 or 26 out of 4,000; that is 
slightly more than one-half of 1 percent of the cases that I 
have handled.
    Chairman Leahy. How many go up on appeal?
    Judge Pickering. Well, of those that went up on appeal, it 
was about 93 percent, I think, so it was still a good----
    The Chairman
    [presiding.] Well, let's go to this one, this particular 
case. I picked that only because it is a First Amendment case. 
Four years before, you had a case from the Fifth Circuit that 
was on all fours, and yet you went different than your own 
circuit.
    Judge Pickering. The procedure in handling prison 
litigation is that those are matters that we refer to our 
magistrate judges. And the magistrate judges become somewhat 
experts in that area, much more so than I do, but ultimately 
the buck stops with me. Also, on pro se litigants, we have 
clerks that become specialists in that who operate out of 
Jackson, who serve all of the judges.
    Now, in this case, it was referred to the magistrate judge. 
He analyzed the law and he analyzed it from the basis that the 
prison authorities could limit rights of prisoners if there was 
a penal reason why it needed to be done. And he analyzed that 
the fires and the damage to the plumbing, blocking it up, that 
was a legitimate penal concern and interest.
    Chairman Leahy. Weren't those the same arguments made in 
the Mann case?
    Judge Pickering. Yes. I was going to say the magistrate 
judge did not refer to the Mann case. It was not argued to me 
and that is one where we goofed. If I had been aware of the 
Mann case, I would not have decided that case that way. But 
until it came from the Fifth Circuit, I was not aware of the 
Mann case.
    Chairman Leahy. But the Mann case was in your circuit and 
it was 4 years----
    Judge Pickering. Yes, that is correct.
    Chairman Leahy. Let me take a toxic tort case, Abram v. 
Reichhold Chemicals. You dismissed with prejudice the claims of 
the eight plaintiffs because you held they had not complied 
with a case management order. It is pretty significant when a 
judge dismisses a case with prejudice. It really denies any 
rights to bring the case again or anything else.
    But the Fifth Circuit reversed your dismissal. They held 
you had abused your discretion because you hadn't tried to use 
lesser sanctions before you threw the plaintiffs out of court 
permanently, with prejudice, without hearing the case on the 
merits.
    Again, the Fifth Circuit said that in their circuit 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.
    Now, approximately 3 years before reversing you in the 
toxic tort case--now, I understand you may not have been aware 
of the Mann case, the one we were discussing before, but about 
3 years before reversing you in the toxic tort case, the Fifth 
Circuit had reversed you on the same legal principle, holding 
that you had abused your discretion in dismissing another case 
with prejudice for a discovery violation without any indication 
that you had used dismissal with prejudice as a remedy of last 
resort which should only be applied in extreme circumstances.
    So, in other words, it wasn't a case that you weren't 
aware. You may have been unaware in the First Amendment case, 
but in this case where you really go into the rights of the 
litigants, you were aware of what the court said because they 
had reversed you for doing the same thing a few years before.
    How would you explain that? Again, is it a case of your 
personal feelings or a case of not following the law?
    Judge Pickering. Senator, let me discuss the Reichhold case 
first, and it will require some explanation for you to 
understand the decision that I made. I felt that the Reichhold 
dismissal met the criteria that the Fifth Circuit has set forth 
for dismissal with prejudice.
    The Reichhold cases were assigned to me, I think, some 18 
days after I went on the Federal bench. There eventually were 
10 cases, and of the 10 cases there were about 4,000 plaintiffs 
and they ultimately settled for between $16 and $20 million. 
Now, these cases came along during the final stages of that, 
after a class had been certified for punitive damages, as I 
recall.
    And let me say, Senator, that we are covering a lot of 
material and I am going back a long time in my memory, and all 
of my testimony today will be based upon my best recollection 
of these things.
    Chairman Leahy. Well, now, with all due respect, Judge, I 
told the Department of Justice before this hearing--I mean, 
this is not a surprise thing--that I would raise these cases. 
This is the same Department of Justice where we asked for 
material in your file and they gave us part of it a few minutes 
before this hearing, and even then told us we couldn't use it.
    So I would assume they are being a lot more fair in working 
with you than they have been in preparing material for this 
Committee. I just don't want to leave the impression that this 
is some kind of a ``gotcha.''
    Judge Pickering. No.
    Chairman Leahy. I made darn sure, out of fairness to you, 
that we notified the Department of Justice I was going to raise 
these cases.
    Judge Pickering. Senator, I got that message about 3 hours 
before my testimony. Now, again, it was somewhere between ten 
and eleven o'clock this morning when it was given to me.
    Now, again, I am familiar with this and I think I can give 
you----
    Chairman Leahy. Go ahead.
    Judge Pickering. But I am not like a lawyer arguing a brief 
where you have got the brief up here and you look at everything 
to be sure. I am still having to draw from my recollection even 
if I had remembered it, and I don't want to get in a situation 
where I did once before and remember something and not have 
said that this is according to my recollection.
    So in this situation, these plaintiffs had been told 
repeatedly that they had to get some evidence in to show that 
the damages that were claimed was caused by Reichhold's 
pollution. They brought forward absolutely--and it wasn't one 
time; I had continued the cases and given them about three or 
four extensions, and my impression was that they could not come 
up with it.
    Now, what happened--all of the cases settled except 15, and 
the 15 that were going up, the plaintiffs' lawyers came in with 
some evidence on 8 of them. I analyzed the evidence. It was 
insufficient to establish a cause of action. I dismissed those 
7 or 8 on summary judgment with prejudice. The Fifth Circuit 
affirmed that. Then the Fifth Circuit said the others that I 
should have sanctioned first.
    Senator I had given them ample opportunity at the time. The 
only thing I had not done--if I had sanctioned the attorney for 
that, the Fifth Circuit would have affirmed it. I don't like to 
do that. I had given them three or four times. When it came 
back to me, then they were given an opportunity to again submit 
the evidence. They still could not come up with evidence.
    These 7 or 8 cases were still dismissed on summary judgment 
and they were not appealed.
    Chairman Leahy. But, Judge, I understand you are saying you 
don't like doing it that way, but isn't that the way the Fifth 
Circuit requires you to do it?
    Judge Pickering. Well, I thought----
    Chairman Leahy. I mean, it is not your personal feelings, 
obviously.
    Judge Pickering. No. You are right about that, but I 
thought when I had given three or four that that was 
contumacious. I had given them three or four times to get the 
information. They hadn't done it. I thought it met with the 
criteria. I did not think I had to specifically--I think the 
Fifth Circuit law--and I think it is broad enough to cover that 
situation because I had given them time and time again. I said, 
you have got to get it in. They didn't get it in.
    I had given a continuance, saying you have got to get it 
in. And this was about the third or fourth time that had been 
done before I dismissed it. The Fifth Circuit said you could do 
the same thing on summary judgment, and I did, and they had no 
basis, no evidence to show that these cases had a basis in law. 
So they were dismissed.
    Chairman Leahy. Judge, out of fairness to the next Senator 
who will be asking questions, who will be a Republican--we have 
begun this vote and I think it would be more fair to recess for 
about 5 minutes so we can all go and vote, and we will come 
back so I won't have to interrupt during that time.
    Senator Hatch. Could I just ask just one thing----
    Chairman Leahy. No. We will----
    Senator Hatch. Just to clarify that last point while we are 
here----
    Chairman Leahy. Well----
    Senator Hatch. As I understand it, what you are saying is 
that in the end you were basically sustained.
    Judge Pickering. That is correct.
    Senator Hatch. I mean, so all this rigormarol----
    Chairman Leahy. Well, actually, you weren't sustained.
    With all due regard to my dear friend, Orrin, I hope the 
President nominates you for something and we can ask you the 
questions.
    [Laughter.]
    Chairman Leahy. And you can certainly answer what you did, 
but in the meantime maybe out of fairness to Judge Pickering, 
we should allow him to.
    We will stand in recess for 10 minutes.
    [The Committee stood in recess from 3:22 to 3:33 p.m.]
    Senator Feinstein
    [presiding.] The hearing will come to order.
    I would like to just sort of read the list of Senators in 
their line here according to the early bird rule. The next 
Senator will be Senator Thurmond, then Senator Kennedy, then 
Senators Kyl, Feingold, DeWine, Durbin, McConnell, Cantwell, 
Sessions, Schumer, and Grassley.
    Because Senator Thurmond is not here, and Senator Kyl 
indicated to me that he had to go to Intelligence--there is a 
major Intelligence markup today and I would like to just 
indicate that is where he is. So we will drop down, then, to 
the next Republican that happens to be present, who is Senator 
McConnell.
    Senator McConnell. Thank you, Senator Feinstein.
    Judge Pickering, as you no doubt are aware, the group 
People for the American Way has leveled several criticisms 
against you. The one criticism I found most interesting was its 
charge that you have been, quote, ``promoting religion from the 
bench.''
    Because this organization's report said that it had, quote, 
``disturbing evidence,'' end quote, of your doing so, I 
expected to read that you were performing baptisms in your 
chambers. Instead, the disturbing evidence I found was 
disturbing to me only in that it is so weak as to indicate a 
hostility to religion, or at least to any mentioning of it in 
the public square.
    I don't have time to go through all of this, quote, 
``evidence,'' end quote, so I will highlight a few criticisms 
that are either radical or disingenuous.
    The first piece of evidence is an anonymous quote from the 
Almanac of the Federal Judiciary that said about you, quote, 
``He is the judge who concerns me the most. He is a fine 
person, but he is almost so pious that it interferes with his 
assignment as a judge,'' end quote.
    Now, being pious, if that is true, isn't evidence of 
anything, other than the fact that you exhibit some moral 
rectitude. And it certainly isn't evidence that you are 
promoting religion from the bench. Frankly, after various 
instances of Congressmen, Senators, and even Presidents 
exhibiting lewd and lascivious behavior, I would welcome a 
little more moral rectitude or being pious.
    I note that this organization didn't bother to mention 
other comments from the Almanac of the Federal Judiciary about 
your service, such as ``I think he is a good judge, he is a man 
of high morals, he is a straight arrow, he acts judicial, he is 
a little stern sometimes, he is a little more formal than some 
of the other judges are, he has no bias, he is straight down 
the middle.''
    If having high morals, being pious, or being a straight 
arrow is deemed to promote religion, then we probably have a 
lot of judges who are promoting religion. So this piece of so-
called evidence obviously isn't persuasive.
    As part of its brief against you, this same organization 
also notes that in your personal capacity, you once said that 
the Bible should be recognized as the absolute authority by 
which all conduct of man is judged. Now, even they agree that 
you weren't saying that in the courtroom, in your chambers, or 
in some other judicial or quasi-judicial capacity. You were, in 
fact, saying this as President of the Mississippi Baptist 
Convention, as part of your president's address to that 
organization at your denomination's annual meeting.
    Frankly, as a Southern Baptist myself, I don't know what 
else you would say at an annual meeting of the Southern Baptist 
Convention, particularly when you are the president. Given that 
you were speaking on a purely theological matter, in your 
personal, private capacity, I thought the only thing disturbing 
about this was that people would seek to hold it against you.
    This organization also argues that you are, quote, 
``promoting religion,'' end quote, because you simply suggested 
to a prisoner that he might want to avail himself of Chuck 
Colson's prison ministry. Now, you weren't mandating this or 
threatening this; you were Just mentioning this.
    Given the proven success of Mr. Colson's prison programs, I 
don't think that was at all inappropriate. In fact, Democrat 
Joe Califano, writing in the Washington Monthly in his article 
``A New Prescription,'' noted that a study of New York inmates 
participating in Chuck Colson's Prison Fellowship Program 
showed that they were less likely to commit infractions while 
incarcerated and had a much lower rate of recidivism upon 
release from prison--only 14 percent, compared to 41 percent of 
those who did not participate in this program.
    Chuck Colson's Prison Fellowship Program works in 
conjunction with 1,400 prison chaplains across the country. If 
merely suggesting this program to an inmate out of concern for 
the inmate is impermissible, then I guess we should no longer 
have prison chaplains. I don't know. Maybe that is what this 
organization prefers.
    Last, People for the American Way mischaracterizes your use 
of a one-sentence Bible passage in an opinion. It argues that 
in this verse you were citing the Bible as recorded law on par 
with the Supreme Court. This is what People for the American 
Way said about your reference to that biblical passage.
    What you wrote was the following: ``One of the oldest 
recorded codes of law provides: `the innocent and the just you 
shall not put to death, nor shall you acquit the guilty,' '' 
Exodus 23:7. That doesn't sound like a radical proposition to 
me, nor is it placing the Bible as recorded law on par with the 
Supreme Court.
    In fact, it might interest everyone to know that you 
weren't the first Federal judge to use a Bible passage as part 
of a legal analysis. It is hard to read, but we have a chart 
over here and let me just tell you what it shows. It is a 
biblical passage from one of Chief Justice Earl Warren's 
opinions, a biblical passage from one of Justice Thurgood 
Marshall's opinions, and a biblical passage from one of Justice 
William Brennan's opinions--all radical conservative members of 
the judiciary, I might say. Each of them used a biblical 
passage in this fashion. I guess they were promoting religion 
from the bench as well.
    So, Judge Pickering, I find these accusations against you 
that are based upon your religious activities in your private 
life, or de minimis religious comments in your public life such 
as the one just referred to, to be troubling, not because of 
anything you did, but because they evidence a hostility toward 
religion by your accusers.
    The First Amendment does not command that we eviscerate all 
mention of religion from public life. We start every day in the 
Senate chamber with a prayer, and I might add we haven't 
completely eviscerated religion from our own activities here in 
the Congress. Given your incredibly low reversal record which 
we were discussing earlier, less than 1 percent, I have no 
doubt that you will properly interpret the First Amendment.
    So I have no questions, but I wanted to adDress those 
accusations myself because I found them really quite 
incredulous and completely inappropriate in the context of what 
we are considering today.
    Thank you, Senator Feinstein.
    Senator Feinstein. Thank you, Senator McConnell.
    Senator Kennedy?
    Senator Kennedy. Thank you very much.
    Judge Pickering, I firmly believe that America is never 
going to be America until we free ourselves from all forms of 
discrimination, and this has been a continuing battle for this 
country over a long period of time. I would like, just in the 
time that I have, to talk with you about employment 
discrimination and voting rights, and if I have time to just 
followup on some questions that Senator Feinstein had.
    One of the important areas where there has been 
discrimination--and it has existed in the southern parts of the 
country, and we have our own problems in Massachusetts, as 
well, and all parts of the country. We recognize this, but one 
of the important areas that we have been making some progress 
is in the area of employment, understanding that if people are 
not permitted to work, if they are going to be discriminated 
against in terms of employment, they are not going to be a part 
of the American economy and not be able to be a part of the 
American dream.
    So we passed the Title VII legislation a number of years 
ago and it has been one of the most important--it has been 
challenged and we came back and reaffirmed it in the Ward's 
Cove case in recent years, so we are solidly committed to that.
    The point I want to raise with you is the concern about 
your singling out the civil rights cases as a place to express 
your personal views that appear to be somewhat disdainful of 
the statutory protections against discrimination.
    In the employment discrimination cases that I have 
reviewed, you appear rarely to rule for the plaintiff. In fact, 
I believe I only found two or three discrimination cases in 
which you ruled for the plaintiff, and one of those involved a 
male's claim of gender discrimination, Green v. University of 
Mississippi.
    What troubles me beyond the rulings are the statements you 
made about the perceived problems with Title VII of the Civil 
Rights Act. In one case, after deciding the case for the 
plaintiff, you went on to opine, ``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 Johnson v. Southern Mississippi Home Health, 
1996.
    In another case where you again could have limited yourself 
to the facts and law, you went on to comment that, ``The courts 
are not super personnel managers charged with second-guessing 
every employment decision made regarding minorities.'' You 
stated that the case was frivolous and thus helped to 
discourage employers from hiring protected minorities, in 
Seeley v. City of Hattiesburg.
    In another employment discrimination case, you stated that 
the unfortunate effect of Title VII was to create the 
expectation that discrimination has occurred in every instance, 
thus, quote, ``creating a tension in the workplace.''
    Now, while I understand that not every employment 
discrimination case has merit, I am concerned that in 
discrimination cases you go well beyond what is required to 
explain your holding and proceed to express profound skepticism 
toward these claims. I don't see that you consistently express 
this type of disdain for other categories of claims that come 
before you.
    Title VII of the Civil Rights Act has, of course, been 
recognized by the Congress as one of the most important 
statutes. More than 10 years ago, we amended it to strengthen 
its provisions in terms of protecting employees. So I would be 
interested if you could explain why you express the particular 
skepticism for cases involving this kind of discrimination.
    Judge Pickering. Senator, first, I would like to address 
the first issue that you raised which has to do with the number 
of reversals that I have granted, if I may, and then I will 
answer the other question.
    Senator Kennedy. All right.
    Judge Pickering. In that vein, I would say first of all 
that the mechanism that the Congress has put in place is 
working well. 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. If I am going to grant summary 
judgment, I have to write an opinion and state why I am 
granting summary judgment. If I am going to deny summary 
judgment, I don't have to do that. You can try the case or 
settle the case, or whatever.
    Now, I had my staff go back and look, and of employment 
discrimination cases, my understanding is that nationwide that 
most employment cases that get to court are dismissed, again, 
for the same reason I think I explained just a few moments ago, 
because of the effective work of the EEOC.
    But I had 170 closed cases. I had 68 settled, 51 summary 
judgment granted, 11 voluntarily dismissed, and 3 tried to 
verdict. So not nearly half of the cases that actually came to 
court were dismissed. Most of them either settled or they were 
voluntarily dismissed or they went to trial.
    I have a letter from a female who had an employment case 
before me. Her name was Mary Baltar and she stated that when 
she found out that I was going to be the judge that was 
handling her case that she did not request a jury. She was 
satisfied to come before me as the judge and jury in the 
situation, and she assured in there that I had treated her 
fairly and made sure of that. So I would call your attention to 
that evidence that should be in the record.
    Jim Wade, who is the most prominent attorney in Mississippi 
handling employment discrimination cases, without solicitation, 
wrote a letter to the editor saying Judge Pickering is not 
unfair in the employment discrimination cases. In fact, he 
wrote an excellent letter endorsing that.
    Now, as for the comments, Senator, it is my feeling that 
whenever frivolous lawsuits are brought that that hinders the 
good lawsuits. And the lawsuits where I made those comments in 
were where the case, I thought, clearly indicated there was no 
basis for this action. It never should have been brought, and I 
think that is detrimental to African-Americans who have good 
claims. And I think it does create tension in the workplace 
whenever frivolous lawsuits are filed. So that was the reason 
for the expression of these, no hostility toward enforcing the 
law. I agree with you that they should be enforced, and I will.
    Senator Kennedy. Well, I understand that the EEOC does 
important work, but you know as well as I do it is vastly 
overburdened, and in many instances it takes such a profound 
period of time that people go on into the courts. These are 
legitimate cases which are brought.
    I will go back to see whether these were cases that were 
brought before the EEOC and ruled on in the EEOC and then were 
brought to the courts. But the fact is, with the length of 
time, failure to complete all of its--all of us know that the 
delay in that form of consideration is significant. I just 
noted that you were willing to make comments about this 
particular aspect of employment discrimination which you hadn't 
made with regard to other forms.
    To move on to voting rights, I know that you answered some 
questions on the issue of voting rights, and you also talked 
about the changes that have taken place in Mississippi. You 
pointed out in response to a question that in the Mississippi 
Senate, in the 1970's, you supported the larger multi-member 
districts that served to submerge the black vote. You also 
voted for the open primary bills that sought to dilute the 
black vote by abolishing party primaries, and also the 
``plurality win'' feature of the State's general election.
    The open primary legislation was prevented from taking 
effect twice because the Justice Department objected because it 
was discriminatory against African-Americans. At that time, the 
Democrats were working to exclude the African-Americans, as 
well as the Republicans. I mean, that is the history. I 
remember very well that time. I remember the convention in 1964 
and the group that came on in to represent the Democratic Party 
and their designation. I have some memory of this. It was done 
by Democrats, as well as Republicans.
    In 1975, you voted for a resolution that would repeal 
Section 5 of the Voting Rights Act. So this is the series. 
There is a confluence of different actions that many believe 
were carefully designed in order to exclude the black vote 
here. And the most important, I think, was Section 5 of the 
Voting Rights Act, which, of course, is the important provision 
that requires pre-clearance for voting changes.
    We had seen two instances where the Justice Department 
actually turned down requests by the State previously, but you 
voted against that, and that is in the mid-1970's. And I am 
just wondering, as we are coming into these issues on voting--
and we have gone through this last election with the concern 
people have about whether their vote counts.
    Another issue: on one person, one vote, you considered a 
case involving one person, one vote, in association with a 
county's supervisor's election where the districts were drawn 
pursuant to a redistricting plan that had a 25-percent 
deviation--Fairley v. Forrest County. Your opinion included a 
lengthy discussion in which you characterized this deviation as 
a de minimis variation in terms of voter influence, and this 
even though the Supreme Court has characterized districts with 
lower population variations as not de minimis, but as posing 
constitutional problems.
    You suggested in this case that even when an apportionment 
plan is unconstitutional, ordering new elections would cause 
courts to be more obtrusive into matters that under our 
Constitution should be discharged by others--elected officials 
and legislative bodies. So you continue to express skepticism 
of the one person, one vote principle, stating ``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. Nevertheless, this court is bound to follow the 
precedents established by prior controlling judicial 
decisions.''
    Now, you said you believed that a 25-percent variation was 
de minimis because the actual influence of each voter on the 
outcome of an election is almost infinitesimal. In Reynolds v. 
Sims, the Supreme Court quoted an earlier case that said, ``No 
right is more precious in a free country than that of having a 
voice in the election of those who make the laws under which as 
good citizens we must live. Other rights, even the most basic, 
are illusory if the right to vote is undermined. Our 
Constitution leaves no room for classification of people in a 
way that unnecessarily bridges this right.''
    Given the values that are at stake here, why would you not 
seek to give the maximum protection in protecting voters' right 
in that case?
    Judge Pickering. Senator, that was the Fairley case that 
you are talking about. To the best of my knowledge, I have 
handled four voting rights cases. None of them have been 
appealed.
    Now, it is true in Fairley that I did discuss the history 
and the background of the Voting Rights Act. And, Senator, I 
have had to review so many cases, but I would like to say my 
recollection of that case is that the deviation was 25 percent 
and I said that is unconstitutional, and the parties agreed to 
that.
    The issue in that case was not whether the districts were 
properly--it was whether there would be a special election, and 
I think most of the circuits have agreed that we did not--that 
that was not required. I did not require that.
    Now, the named plaintiff in that case, Mr. Fairley, has 
written a letter in my support saying that he felt that after 
the decision was rendered that they didn't appeal it and they 
didn't feel like it was unfair. His brother, who was president 
of the NAACP, who was instrumental in bringing it, has likewise 
endorsed by candidacy.
    Now, my impression is that a 16-percent deviation is 
unconstitutional. That is what I understand the Supreme Court 
to be. Now, the obtrusiveness, a number of judges have written 
about. When we are forced as judges to go in and draw 
districts, we are doing that which legislatures should do. And 
to that point we are being obtrusive in that we--to provide 
constitutional protection, we are having to do what the judges 
shouldn't have done, and that is obtrusive.
    But the 25-percent I did not find to be de minimis. I did 
raise some question about the fact that, for instance, my 
precinct was put in with another county and I would personally 
prefer to vote in my own county even if there was some 
deviation. But that is not the law and I will follow the law.
    Senator Kennedy. My time is up.
    Senator Feinstein. Thank you very much, Senator Kennedy.
    Senator Sessions, you are next on the early bird.
    Senator Sessions. Thank you.
    So you are saying, Judge Pickering, that the plaintiff in 
that case who was seeking a civil rights remedy has written a 
letter in support of your nomination saying that they were 
treated fairly in that case?
    Judge Pickering. Yes, that is correct.
    Senator Sessions. Well, I think that is more important than 
some of these groups that are trying to make this nomination a 
show here. The person who filed the lawsuit, who tried the 
lawsuit, who sought relief, was satisfied with the relief and 
supports the nominee. I think that is important.
    On this Dahmer case--is that it, the Klan case?
    Judge Pickering. Dahmer.
    Senator Sessions. Dahmer, yes.
    Judge Pickering. Mr. Vernon Dahmer.
    Senator Sessions. Dahmer.
    I wanted to get it quite correct. This was in the 1960's. 
You were asked to testify as a character witness against him, 
not a fact witness, when you have no choice about that, 
basically. But you were asked to give your opinion of his 
character and you agreed to go and testify against him and say 
he was a bad character. Is that correct?
    Judge Pickering. I did. I think there were two or three 
people in Jones County that they contacted. I think one of them 
was a banker and one of them was me, and I agreed to testify 
and they subpoenaed me to do that.
    Senator Sessions. Did the others testify?
    Judge Pickering. Well, I think there was only one other 
one. There were many law enforcement officers they didn't ask.
    Senator Sessions. Well, I was going to ask that. I thought 
it was interesting that you were asked and thought to be a 
person who might be willing to testify against a Klan leader. 
Did that indicate that your reputation in the community and 
your feelings about this Klansman were known and that you 
disapproved of them? Did they probably know that when they 
asked you to testify?
    Judge Pickering. Well, it was known because I had issued 
statements condemning the Klan activity. And in addition to 
that, I had attended the FBI briefings and meetings where they 
were trying to solve civil rights violations not only in Jones 
County, but in neighboring counties and nearby counties.
    I think there were probably some 90 FBI agents that were 
assigned to work in that area, and frankly if they had not been 
assigned there, we would not have solved those problems.
    Senator Sessions. And you had five individuals that I got 
to talk with earlier who are here on your behalf, three 
African-Americans, and I asked them this question and they all 
answered the same way.
    I said, with regard to Judge Pickering, during the 1960's 
when so much tension and turmoil and violence and hatred was 
afoot, was he a force for good in the community? Was he a force 
for progress and change, or was he a force against change and 
progress? And they all said, without hesitation, you were on 
the right side; you were a force for progress and change. And I 
think that is more important, those people who know you, grew 
up in the community with you, than some of these people that 
are putting out words and messages on the television and in 
newspapers who really don't know the facts about it.
    It was curious to me that it was suggested that somehow you 
performing badly to have 26 reversals out of 4,000 cases. I 
suspect, in your opinion, the court of appeals was wrong on 
some of those reversals. They could have been, couldn't they?
    Judge Pickering. Well, they have the last say. Whether I 
agree with them or not, I have to abide by what they say.
    Senator Sessions. Well said, Your Honor. That is true, 
spoken like a good district judge.
    You indicated that of the cases that went up, you had a 93-
percent affirmance rate, you think?
    Judge Pickering. In that range, yes.
    Senator Sessions. And all 4,000 don't go up?
    Judge Pickering. No, no, no.
    Senator Sessions. But if somebody feels wronged and they 
think the district judge clearly was in error, they will take 
that case up, will they not?
    Judge Pickering. They will.
    Senator Sessions. And if they don't feel like they are 
wronged, they generally won't take the case up. So the first 
decision on whether a party has been wronged in a case they 
have to make themselves before they decide to appeal to the 
higher court.
    Judge Pickering. If they don't take action to appeal it, 
the end of it is in the district court.
    Senator Sessions. Well, I would just say that just because 
your case wasn't appealed--I mean, that is an indication of its 
validity in itself, would it not be?
    Judge Pickering. I would think so, in most instances, not 
in every one.
    Senator Sessions. And on the prison case, there is some 
very complex law in prison litigation. This Congress has 
improved, I think, the law in some regards, but magistrate 
judges around the country do handle those cases at the first 
level.
    Judge Pickering. That is correct.
    Senator Sessions. And you indicated they really develop a 
high degree of expertise in these cases, do they not?
    Judge Pickering. They do.
    Senator Sessions. And when a magistrate judge has reviewed 
a case and cites the authoritative law and it comes across your 
desk, you have the final say. It is your final decision whether 
to affirm it or not affirm it.
    Judge Pickering. That is correct.
    Senator Sessions. But you don't----
    Judge Pickering. Senator, I might add in that respect that 
I looked back to see if my prison litigation reversal rate was 
any worse than the rest of my reversal rate. It is not. In 
fact, it is better. The percentage of my cases that were prison 
litigation was about a third, about 33 percent, and the 
percentage of my reversals that were prison cases was about 25 
percent.
    Senator Sessions. The magistrate judge does the research, 
does the facts and sets out the law, and you review it and see 
if anything strikes you as improper. But you do tend to give 
deference to the opinion of the magistrate judge, do you not?
    Judge Pickering. I consider that they are sort of the 
experts in the area and they have more knowledge. But, again, 
the buck stops with me and I have the responsibility. Now, 
sometimes what will happen is the magistrate judge will make a 
recommendation and after the magistrate judge has made a 
recommendation, the pro se plaintiff will come before me and he 
will argue something different than he argued before the 
magistrate judge. And if that happens, I generally send it back 
to the magistrate judge and ask him to look at the issue again.
    Senator Sessions. With regard to the suggestion that you 
abused your discretion in one of the reversals by the court out 
of those just 26 cases, of course, I think people ought to know 
that that is a standard basis for reversal. Trial judges are 
given certain discretion and they exercise it the best the Lord 
gives them the ability, and when a judge upstairs decides not, 
the holding is you abused your discretion. It is not like you 
committed a crime, is it?
    Judge Pickering. That is a term of art.
    Senator Sessions. Yes.
    Judge Pickering. And unless they make that finding, they 
can't reverse me.
    Senator Sessions. I don't think we ought to make too much 
out of the fact that a court, in a few cases out of 4,000, said 
you abused your discretion.
    I know Senator Kennedy is concerned about employment 
discrimination cases. I haven't seen anything in your comments 
that suggests to me a lack of willingness to enforce those 
fairly, but you just indicated, I believe, that Attorney Jim 
Wade, who does more of those probably than anybody in the 
State, a plaintiff's lawyer--is that right?
    Judge Pickering. He is a plaintiff's lawyer.
    Senator Sessions. He wrote a letter to the newspaper in 
your behalf?
    Judge Pickering. He did.
    Senator Sessions. Defending you on those cases?
    Judge Pickering. He did. He said that the charge that I was 
not fair in employment cases was not a charge that stuck. He 
said he felt that I was--was very complimentary of my handling 
of employment cases.
    Senator Sessions. With regard to the fact that you had a 
number of unpublished opinions, I find that a most curious 
complaint. In 1964, the Judicial Conference of the United 
States, which includes the Chief Justice and the chief judge of 
each circuit court of appeals and a district judge from each 
circuit, passed the following resolution: ``Resolved that the 
judges of the courts of appeals and district courts authorize 
the publication of only those opinions which are of general 
precedential value, and that opinions authorized to be 
published be succinct.''
    Is that your understanding of the court's view about 
publishing too many opinions?
    Judge Pickering. The Judicial Conference of the United 
States and the Judicial Conference of the Fifth Circuit both 
have discouraged district courts publishing opinions. And the 
circuit court of appeals' Federal Rules of Appellate 
Procedure--or the Federal Judicial Center Judicial Writing 
Manual says this: ``Because decisions of district judges are 
merely persuasive authority--i.e., they are not binding 
precedent even in their own districts--publication should be 
the exception.''
    The truth of the matter is that the appellate courts only 
publish about 20 percent of their opinions. And I published 
about 8 percent of mine, and it has been mentioned 15 of the 
reversals were not published. So publication should be the 
exception rather than the norm.
    Senator Sessions. Well, I think that is exactly correct. I 
remember when I graduated from law school, we checked on this. 
The F. Supp., which carries the district court opinions, issued 
15 volumes that year. In the year 2000, it was 52 volumes. So 
you have this plethora of opinions piling out there that 
provide little guidance, and I think judges would do well to 
restrain themselves and not publish their great works of 
literature. And I don't think you should be criticized for not 
publishing too many opinions.
    Judge Pickering. Well, I must confess that that was one 
that was an indication or implication that questioned did I 
have something to hide. I was shocked when that issue was 
raised because I thought I was doing what I was supposed to be 
doing, and I really thought that it was an indication that I 
didn't have to see my name in lights or in print every time 
that I rendered a decision. I thought I was doing the right 
thing.
    Senator Sessions. You were doing the right thing, but what 
I have learned as you watch this process, Judge Pickering, is 
that the experts who are trying to make your record look bad, 
they know that if they say you had 26 reversals and you had all 
these unpublished opinions that that will, for the uninitiated, 
sound bad and put a certain cloud there.
    I think that is not fair and it is not legitimate, and I am 
glad the chairman has given you an opportunity today to have 
your say and explain some of it.
    Judge Pickering. Senator, I must confess when I----
    Senator Feinstein. Thank you, Senator Sessions.
    Senator Feingold?
    Senator Feingold. I thank the Chair.
    Judge Pickering, it has been good to hear your statement in 
which you covered a number of issues, and also your answers to 
questions about issues that have largely been the ones that 
have already publicly been associated with the question of your 
confirmation.
    I would like to get into a couple of other matters. As 
Senator Hatch mentioned, the Committee has received really 
quite a large number of letters in favor of your nomination 
from Mississippi. It is an impressive outpouring of support 
from people who know you, and I congratulate you on that, but I 
would like to ask you about some of the letters.
    We count at least 18 letters from members of the bar in 
Mississippi who have appeared before you during your time as a 
U.S. district judge. All of these letters are dated either 
October 25 or October 26, and they were all faxed to Washington 
from your chambers in Mississippi.
    Can you tell me how you came to obtain these letters?
    Judge Pickering. Yes. Senator, I knew of no opposition to 
my nomination that had been pending since May, sometime in May 
of last year, until 2 days before I came for my hearing on 
October 16th. Well, when I came and the opposition came and 
they wanted to produce the unpublished opinions and I started 
producing those, it was obvious that there was some opposition 
somewhere. So I contacted individuals and told them if they 
felt inclined to write letters, or else I had someone else on 
my behalf contact them at that time.
    And if you will recall, Senator, that was at the time of 
the anthrax scare and mail wasn't going through.
    Senator Feingold. I do recall.
    Judge Pickering. So if we were going to get it to you, the 
only way we could get it to you was fax it.
    Senator Feingold. This certainly isn't a criticism of 
faxing.
    So you have said that you have asked these lawyers to write 
letters in support of your nomination?
    Judge Pickering. Yes. I didn't tell them what to say.
    Senator Feingold. Did you ask present or former litigants, 
parties in cases that you handled, to write such letters?
    Judge Pickering. Some.
    Senator Feingold. Did you request that they send the 
letters to you, to be forwarded to the Committee?
    Judge Pickering. That was the procedure that was suggested 
because that was the only way that we knew to get them here and 
to get them through the anthrax.
    Senator Feingold. Did you review the letters before you 
forwarded them?
    Judge Pickering. Most of them.
    Senator Feingold. How many attorneys did you ask to submit 
letters?
    Judge Pickering. A lot less than you have, because there 
were--and some of this--I would ask one attorney; they would 
ask another attorney. Sometimes, other people would call on my 
behalf, but I would say 20 to 25 percent of them probably 
came--Senator, I started--I had three major surgeries last year 
from the time the President nominated me until I came.
    And one of the things that was real touching to me was one 
morning I was being discharged from the hospital after my 
second surgery. There was an African-American lady who came in 
the room. My baby daughter was there. And she was a real 
exuberant person and she had been before me and I didn't 
remember at the time. Her name is Nora Jones and you have a 
letter from her that was filed just recently.
    It was touching to me, with my family there and at a time 
when I was sort of down. She said, I am president of the 
Charles Pickering fan club. She had been before a judge in New 
Orleans that was African-American. She had lost. She came 
before my court. I felt like she was not being treated fairly. 
I let that be known. She was able to get her life back together 
and settle it. Yes, I have some letters from folks like that 
who have been before me.
    Senator Feingold. I certainly appreciate that comment. I 
just want to know if you received any letters that you did not 
forward to the Committee that you reviewed.
    Judge Pickering. The letters, I think, have been forwarded 
that I received.
    Senator Feingold. You forwarded all the letters that you 
received?
    Judge Pickering. Yes.
    Senator Feingold. Are you aware of attorneys who you asked 
to----
    Judge Pickering. Let me--I forwarded them to the Justice 
Department.
    Senator Feingold. There were no letters that you reviewed 
that you chose not to forward?
    Judge Pickering. No. I forwarded all letters that I 
received.
    Senator Feingold. Are you aware of attorneys who you asked 
for recommendations but who declined to provide them?
    Judge Pickering. I am not aware of any. I am not saying 
there are not--well, there were a couple that said they were 
going to write letters that later came back and said that 
pressure had been put on them and that they would rather not.
    Senator Feingold. Well, I want to be clear. I am not 
questioning at all the sincerity of these letters. I would just 
like to ask you, do you see how this situation can perhaps 
create an appearance of coercion, given the fact that these 
individuals appear before a district judge, your being directly 
involved in reviewing the letters?
    Judge Pickering. Senator, a lot of these lawyers have never 
been before me. They know my reputation. For instance----
    Senator Feingold. I assume some have, though.
    Judge Pickering. Some, oh, yes, absolutely.
    Senator Feingold. And certainly some of the litigants.
    Judge Pickering. Absolutely.
    Senator Feingold. Let me ask you about a different matter. 
Let me first of all say that I was moved by the account by 
Senator McConnell and yourself of the testimony you gave in the 
1960's with regard to the KKK. And I think that is an important 
story for the Committee to hear, but let me ask you about 
another matter from about that time.
    As I understand it, about 2 weeks after the Democratic 
Convention of 1964, you resigned from the Democratic Party and 
became a Republican. You had every right to do that, of course, 
but I would like to ask you about the circumstances of that 
party switch and some of the things that you actually said at 
the time.
    As I am sure you recall, the summer of 1964 was known as 
the Mississippi Freedom summer. After decades of 
discrimination, African-Americans across the State attempted to 
register to vote, and in particular to participate in the 
precinct, county and State conventions of the Democratic Party 
to help select delegates to the Democratic National Convention.
    There was violence in Mississippi that summer. For example, 
that summer was when civil rights workers Goodman, Chaney and 
Schwerner were murdered. African-Americans were discriminated 
against and excluded from participation in the regular 
Mississippi State Democratic Party processes. This included 
such tactics as canceling precinct meetings, denying African-
Americans entry to meeting halls, and preventing them from 
voting in party meetings. The regular State party delegation to 
the convention was, in fact, all white.
    During that summer, black Mississippians formed the 
Mississippi Freedom Democratic Party and elected an alternative 
slate of delegates to the convention. The two slates each 
claimed the State seats at the convention, and testimony was 
taken by the convention's Credentials Committee, including, of 
course, the riveting testimony from Fannie Lou Hamer, who 
described some of the discrimination that had occurred.
    A compromise was suggested by President Johnson under which 
the regulars would keep their seats, the Mississippi Freedom 
Democratic Party would get two at-large seats, and the State 
party would pledge to support the national ticket and to 
eliminate discrimination in future delegate selection. Neither 
State party agreed and the regular State party delegates walked 
out of the convention.
    Now, despite the clear discrimination against African-
Americans in the party process, the regular party delegates and 
their supporters felt that they had been the victims of 
humiliation and mistreatment. For example, your law partner at 
the time, Lieutenant Governor Carroll Gartin, who was a 
delegate to the convention, accused President Johnson of, 
quote, ``master-minding the insults,'' unquote, against the 
State at the convention and urged voters to vote for Barry 
Goldwater.
    About 2 weeks later, you announced your shift from the 
Democratic to the Republican Party. According to the local 
newspaper you stated that, and I am quoting here, ``The people 
of our State were heaped with humiliation and embarrassment at 
the Democratic Convention, and this has convinced me beyond any 
doubt that Mississippians do not now and will not in the future 
have any useful place in the National Democratic Party,'' 
unquote. The Republican Party, you claimed, was, quote, ``our 
only hope of rescuing our national government from an ever-
increasing tendency toward socialism,'' unquote.
    Can you explain what you meant by the statement that, 
quote, ``The people of our State were heaped with humiliation 
and embarrassment at the Democratic Convention?''
    Judge Pickering. Senator, a couple or three comments. 
First, as I have indicated a few moments ago, I certainly 
recognize the difference between political decisions and 
political statements and judicial decisions.
    We are also looking back at a time from the perspective of 
2000, looking back to a situation that was 1964. When I called 
Governor Winter today, whom I mentioned to you as one of the 
most respected figures on race relations in the State, he was 
talking about the fact that Carroll Gartin was a progressive 
leader of that time.
    I don't know of any of the State leaders at that time who 
would not have made similar statements. Senator Eastland, 
Senator Stennis, just did not go to the Democratic National 
Conventions. The issues that were presented were issues that 
would not have allowed them to be elected in Mississippi. So I 
would say that that statement had to do with the perspective of 
those times and that it was a political decision.
    Senator Feingold. Were you aware at the time of these 
events of the efforts to prevent African-Americans from 
participating in Democratic Party politics?
    Judge Pickering. Senator, I have always felt even before 
then that African-Americans should have been allowed to vote, 
but they were not voting. They had not voted and many counties 
did not allow them to vote. I had never taken any part in 
prohibiting them from voting.
    Senator Feingold. But were you aware of the tactics that I 
have mentioned earlier in my statement that were being used 
against African-Americans?
    Judge Pickering. The Voting Rights Act, I believe, was 
passed in 1966, which would have been----
    Senator Kennedy. 1965.
    Judge Pickering. 1965. The Civil Rights Act, I think, was 
passed in 1964.
    Senator Kennedy. 1964, 1965, 1967.
    Judge Pickering. Right, right. Things were changing 
drastically at that time.
    Senator Feingold. But the things I mentioned happened no 
later than 1964. I am just asking if you were aware of these 
tactics that were being used against African-Americans.
    Judge Pickering. I was aware that they were not voting, 
that they had not voted, and I was aware some counties were 
more progressive than other counties were in allowing African-
Americans to vote.
    Senator Feingold. Let me ask you this: Do you recognize 
that the activities of the Mississippi Democratic Party at the 
time were discriminatory and unconstitutional, and do you have 
any regrets about the statements you made concerning those 
events?
    Judge Pickering. Well, I certainly would not make those 
statements today.
    Senator Feingold. Do you regret them?
    Judge Pickering. Yes, sir.
    Senator Feingold. Thank you, Madam Chairman.
    Senator Feinstein. Senator Specter, you are next up.
    Senator Specter. Thank you, Madam Chairman.
    Judge Pickering, you have said that you will follow the law 
on Roe v. Wade even though it may be against your own personal 
views and predilections. Can you cite other situations where 
you have followed the law where you had personal views which 
were contrary to the established law, but yet you followed the 
law?
    Judge Pickering. Followed the law, yes, Senator. I 
mentioned one of those, which was in the ERISA area, in my 
opening statement that I very much--I disagreed with what the 
Federal courts have done to ERISA, to the degree that I wrote 
35 pages of explaining why I thought they had interpreted it 
wrongly, but I followed the law.
    In another case that I specifically recall that I did that, 
there was an employee--it was a labor relations case, the 
Federal Arbitration Act, and the employee definitely had not 
carried out a work order and that is why she had been 
terminated. She didn't follow to carry out a work order.
    Well, the arbitrator had found in her favor, and I affirmed 
that even though I thought the factual basis was not in the 
record. But I reasoned that he could have concluded that had 
she had an opportunity--if the matter had not degenerated into 
an argument that she would have carried out. So I felt like I 
have stretched to follow the strong law that the arbitrator's 
decision bargained for, not a judge's, and I upheld that.
    And another issue in that particular case was they made a 
public policy argument that she had attacked an administrative 
judge and that she had emotional problems. That was the issue, 
but they had worked her for 8 years. So even though they urged 
me on a public policy basis to reverse the arbitrator's 
decision, I said they worked her for 8 years, they are estopped 
from coming here now and arguing before me that she was a 
danger to them, because if she was they had worked her, so they 
had waived that.
    So those are two instances where I disagreed with the law 
that I followed the law. I have also--as I testified earlier, 
there have been a number of cases where I have protected--for 
instance, I haven't had an abortion case, but I have protected 
sexual privacy rights in other cases and I went over those a 
few moments ago, one of them involving an apparent lesbian 
relationship. Another one involved a homosexual.
    Senator Specter. And those were holdings or conclusions in 
accordance with established law which were counter to your own 
personal views?
    Judge Pickering. I didn't say that. I said that I--you had 
asked about the abortion issue.
    Senator Specter. I know you didn't say that. I am asking 
you.
    Judge Pickering. No, no. My personal--the issue, Senator, 
is, as I see it, not my personal view on any of those issues, 
but it is whether or not I followed the law, and I did in those 
cases.
    Senator Specter. Judge Pickering, there is concern that 
although you say you will follow the law that at the margins 
where you have some area of discretion that your own personal 
predilections will come into play.
    What would your view be on that? What assurances could you 
give that on the cases at the margins that you will follow the 
intent behind the decisions?
    Judge Pickering. Senator, I think in a situation where 
there was not a clear situation that I would look at the 
controlling precedents and I would look at the--if you don't 
have a clear place, then I think you go back to the statute and 
if the statute is very clear, of course, you follow that. If 
not, you look at the legislative history and you try to--I 
have--one of the criticisms that I had in the ERISA case about 
the Federal court interpretations is that Congress in that case 
made a very clear statement of what their intent was in passing 
that bill. And yet I felt the Federal courts ignored 
congressional intent in that. I think congressional intent is 
important.
    Senator Specter. Judge Pickering, you have cited your 
testimony against the leader of the Ku Klux Klan and your 
having attended meetings where the FBI was investigating civil 
rights violations.
    Can you cite other instances in your career, either on the 
bench or off the bench, where you have been an activist in 
support of civil rights?
    Judge Pickering. Well, my children in the early 1970's when 
the public schools were integrated--we were part of the 
integrating process. My son would bring home when he was 
playing football two friends, one African-Americans and one 
white, and my wife would feed them a steak.
    I had not contacted him for a letter of support and 2 days 
ago he called me and said--wanted to know if he could do 
anything. And he wrote a very moving letter in which he said, 
you all made me feel like a member of your family. So we 
integrated the schools, integrated the dinner table.
    When I was chairman of the Republican Party, I solicited 
and sought invitations to speak to the State NAACP. I hired the 
first African-American field man, who is here on my behalf, and 
he likewise--I did not ask for his letter of support. He came 
through Jackson and he saw that I was being opposed and he 
called me and said, I want to help. And he, unsolicited, sent a 
letter to Senator Leahy and he is here today. He reminded me of 
things that went on during those days that I had forgotten in 
his letter.
    As president of Mississippi Baptists, for the first time in 
1983 when I was there we had an African-American pastor address 
our convention. That is the first time that had been done. In 
1988 and 1989, I chaired a bi-racial, bipartisan group trying 
to promote better race relations in my home county of Jones.
    In the 1990's, my son-in-law was a faculty adviser for 
Sigma Chi fraternity. Chip and I both were Sigma Chi's. There 
was an African-American who was trying to gain admittance to 
Sigma Chi. He was being black-balled. We discussed it. Chip 
flew down from Washington, addressed the chapter. We integrated 
the Sigma Chi chapter at Ole Miss.
    In 1999, I wrote a lengthy article that was published in 
the Clarion Ledger, ``Racial Harmony Requires Commitment.'' And 
within the last couple of years, at the University of 
Mississippi, the Institute for Racial Reconciliation was 
created. I had written a private letter to the chancellor----
    Senator Specter. Mr. Pickering, I am reluctant to interrupt 
you, but I would appreciate it if you would supplement your 
answer because there are a couple of other questions I want to 
go over with you.
    Judge Pickering. That was the last one.
    Senator Specter. OK, we are on the same wavelength.
    In reading your opinions, Judge Pickering, I have noted a 
curious ambivalence. The citation has been made to the Fairley 
case on the obtrusive language, but the full context says, 
quote, ``When courts perform their responsibility and determine 
that constitutional criteria are not satisfied, and that an 
apportionment plan is unconstitutional and order new elections, 
the courts are being obtrusive into matters that under our 
Constitution should be discharged by others--elected officials 
and legislative bodies.''
    Now, in the dependent clause you say courts are discharging 
their responsibility on unconstitutional apportionment plans 
and ordering new elections, and then you say that they are 
being obtrusive into matters that under our Constitution should 
be discharged by others. So, on one hand, you say they are 
doing their job under the Constitution, and then you say under 
the Constitution the matter ought to be decided by others.
    Because the red light is about to go on, let me cite 
another instance where--I don't think it is schizophrenia, but 
it is a little ambivalence, at least. In Citizens Right to Vote 
v. Morgan, which was a bonding case whether voting rights were 
violated, you say, quote, ``This case is simply another of 
those which demonstrates that many citizens have come to view 
the Federal courts as potential solutions for whatever problem 
comes along. I fear Federal courts have fostered such a notion 
over the years. Government by court decree is a poor substitute 
for government by the people. This case is nothing more than a 
political struggle between those who want an election on a 
proposed bond issue and those who do not want an election.''
    Now, it is curious to me that you want to be a Federal 
judge, Judge Pickering. Of course, you are a Federal judge, but 
that you want to be an appellate judge because here you are 
really saying the courts have no business in this, and here you 
are in the business of having no business in deciding all these 
cases.
    And in the earlier citation, it is hard to follow your 
reasoning on saying the courts perform their responsibility 
when something is unconstitutional, but the courts are 
obtrusive in the matters that under our Constitution should be 
discharged by others.
    What is going on here, Judge Pickering?
    Judge Pickering. Senator, perhaps I could have been clearer 
in that area, but that is--Federal courts--the jurisdiction is 
very plain. We are courts of limited jurisdiction. We are not 
to get into any case that we don't have--that is not granted to 
us. And over and over, the Federal courts have held that we are 
courts of limited jurisdiction.
    Now, by obtrusive what I intended to convey--and perhaps I 
didn't do it as well as I could--is that that is the 
legislature's job. And when they fail to carry out theirs, then 
we must; yes, we must move in to protect constitutional--and 
from the standpoint that it is our responsibility, yes, but it 
is because we are having to get into something that should have 
been done by the legislature. That was my intent, Senator, in 
that area.
    And in the----
    Senator Specter. There seems to be quite a strain in your 
opinions, and there are a lot of them on the record, as well as 
those that are unpublished, of ambivalence of upholding what 
you think is the constitutional law, but then sort of decrying 
the presence of the court to have to decide matters that you 
would really prefer should be decided by the legislature or 
somebody else.
    Judge Pickering. Senator, in the Citizens Right to Vote 
case, that was a group of wealthy land owners trying to avoid a 
bond issue so that--trying to avoid raising their taxes. And 
they were using the Voting Rights Act to do that and I thought 
that was an improper use of the Voting Rights Act.
    Senator Specter. Thank you very much, Judge Pickering. 
Thank you.
    Senator Feinstein. Thanks, Senator Specter.
    Senator Durbin, you are next.
    Senator Durbin. Thank you very much, Madam Chair.
    Judge Pickering, thank you for returning. This hearing has 
become a painful recollection of America's past and the civil 
rights movement. Because you are from Mississippi, in your 
early days as a professional, as an attorney, as a legislator, 
elected official, you lived through some historic moments. And 
I hope you understand the nature of our questions is to explore 
what happened during that period of time, but more importantly 
how you feel today.
    The appointment you are seeking is a lifetime appointment 
and it is a very valued appointment. I recall the experience 
that former President Clinton had in seeking to fill vacancies 
in this particular circuit court of appeals.
    As has been said before in the hearing, this particular 
circuit has the highest minority population of any in the 
country. President Clinton proposed four nominees to fill 
circuit vacancies during the period when the Republicans 
controlled the Judiciary Committee. One was confirmed, James 
Dennis, by a voice vote in September 1995. Three others were 
not even given the courtesy of a hearing, the courtesy that has 
been given to you.
    The troubling thing is that all three were minorities. 
Alston Johnson, an African-American; Jorge Rangel, a Latino; 
and Enrique Moreno, another Latino, were not given the courtesy 
of a hearing before this Judiciary Committee when President 
Clinton sought to fill these vacancies. So I hope that you 
understand the historic context of this Committee as this 
hearing is underway.
    We have heard from Senator Hatch that there is an effort to 
change the ground rules. Well, I certainly hope we do change 
the ground rules. I certainly hope that every nominee of any 
President is given a respectful opportunity to present their 
credentials, and I hope you believe that that has been given to 
you.
    Let me address the Sovereignty Commission for a moment 
because I have followed your testimony and there is one part of 
it that I just don't understand.
    You have said today when asked why any contact was made 
with the Sovereignty Commission over the Gulf Coast Pulpwood 
Association in Laurel, Mississippi, and the Masonite 
Corporation strike that you were concerned about violence by 
the Ku Klux Klan in that union and in that strike.
    The thing that troubles me as an outsider who has tried to 
study a little bit on this is it would seem that the 
Sovereignty Commission of the State of Mississippi would be the 
very last place that you would go if you are worried about 
violence and the Ku Klux Klan. By its very charter, by the fact 
of its creation with Brown v. Board of Education, the 
Sovereignty Commission was certainly not created to police the 
Ku Klux Klan or violence by those with racial beliefs. From 
what I have read, it was created to basically assert State 
sovereignty over Federal rights, particularly after Brown v. 
Board of Education.
    Why would you think that the Mississippi Sovereignty 
Commission was the right agency to approach if you were fearful 
of Ku Klux Klan violence in your hometown?
    Judge Pickering. Well, they were making an effort, in my 
impression, to change from what they had been doing in the law 
enforcement. And the gentleman who was head of it--or not the 
gentleman who was head of it--the man that I was introduced to 
was introduced as a former FBI agent.
    Senator Durbin. So you believe that rather--you were a 
State Senator at the time, is that correct?
    Judge Pickering. Well, I think he would have--I felt at the 
time, Senator--and, again, we are looking at things through the 
perspective of 2001 as to then, but at the time I thought if 
there was some indication of violence that was coming up, yes, 
that he would have information on that.
    Senator Durbin. So as a State Senator, it was your belief 
that rather than go to the Governor or the attorney general or 
law enforcement if there was a fear of violence from the Ku 
Klux Klan, the appropriate place to turn was the Mississippi 
Sovereignty Commission?
    Judge Pickering. Well, the Governor was on the Sovereignty 
Commission at that time.
    Senator Durbin. So you believed this was the right place to 
go to enforce those laws?
    Judge Pickering. Senator, if I were making that decision 
today, I would not make the same decision that I made then. At 
the time, I thought that was the best place to--and, again, 
Senator, I have very little recollection of this. My impression 
is that it was a casual conversation; that, you know, I think 
he probably overstated somewhat in trying to keep their agency 
alive that here there were three legislators that were vitally 
interested in what he was doing.
    My recollection of it, and it is very vague because I did 
not remember it when I was here before, is that he said, we 
have got some information in that area. And there was a casual 
thing: well, if you find out anything, let me know, or 
something to that effect.
    Senator Durbin. Well, I know that you have probably read 
the letter which has given rise to these questions which 
mentions your name.
    Judge Pickering. Yes.
    Senator Durbin. And as I read this letter, I find the 
Sovereignty Commission calling people who were in labor 
organizing communist, referring to Mr. Evers and his family as 
being somehow involved in these outside agitators and 
infiltrator plots. It just doesn't seem like the right place to 
turn.
    Let me ask you about your former law partner and a person 
whose name has come up twice today, Carroll Gartin. You said in 
your opening remarks, and I don't want to misstate your 
remarks, that either you believed that Mr. Gartin was not a 
racist or Governor Winter would have believed that Mr. Gartin 
was not a racist. I will give you an opportunity to clarify 
that. Then you went on to say, in response to Senator 
Feingold's question, that someone would have characterized 
Carroll Gartin, your former law partner, as a progressive 
leader.
    I have here some advertising from Mr. Gartin's campaign in 
1959 for lieutenant Governor. It shows a picture of Mr. Gartin 
and it says at the top, ``With this pen, I signed our State's 
segregation laws and the right to work bill, and with this pen 
I will veto any effort to weaken our defenses around our 
Southern way of life.''
    He goes on to say, ``I am a total segregationist. I will 
close any public school in Mississippi before allowing Federal 
courts to mix black children with white children. I helped plan 
and pass the legislation which has maintained successful 
segregation to this date.''
    Then after he became your law partner, again when he was a 
candidate----
    Judge Pickering. When was that? What year was it?
    Senator Durbin. This was 1959,
    Judge Pickering. 1959.
    Senator Durbin. And then in 1961, I believe, you affiliated 
with him in a legal relationship, partnership. Was 1961 the 
appropriate year? Is that right?
    Judge Pickering. Yes.
    Senator Durbin. Then in 1963 when he was a candidate, again 
we find comments by Mr. Gartin: ``I am a firm believer in 
segregation. As lieutenant Governor, I worked for the passage 
of every law and every program designed to preserve segregation 
in all phases of life. This I shall continue to do.''
    I don't doubt the fact that life has changed in America and 
life has changed in Mississippi, but can you sit there today 
and tell us that these are the words of a man that you had 
characterized as either not a racist or as a progressive 
leader?
    Judge Pickering. Senator Durbin, the statement that I made 
about----
    Senator Feinstein. Could you speak directly into the 
microphone, please?
    Judge Pickering. Yes. I am sorry, Senator.
    Senator Feinstein. You may have to pull it toward you and 
pull the mike down a little.
    Judge Pickering. I have gotten a little weary and I leaned 
back. I apologize.
    Senator Durbin. You are entitled.
    Judge Pickering. Senator, the statement that I made about 
being progressive was a quote that I gave from my conversation 
with Governor Winter this morning.
    Senator Durbin. Do you believe it?
    Judge Pickering. That he was--that I believe he was 
progressive?
    Senator Durbin. Yes.
    Judge Pickering. Governor Gartin was defeated by Ross 
Barnett, who was a segregationist Governor who was viewed as 
being the one--Carroll Gartin made statements that I do not 
agree with, do not subscribe to. There was no politician in the 
South during the 1950's and the early 1960's that held office--
even William Winter, who is the most respected civil rights 
leader, he would have taken similar statements, I think, during 
that period of time. It is not right, no, but it recognizes the 
reality of where they were at that particular time.
    Senator Durbin. But on reflection today--I am trying to get 
your state of mind today. I know the world has changed, but as 
you look at what was said in those days, can you honestly say 
that Mr. Gartin was not a racist and was a progressive leader? 
Do you believe that?
    Judge Pickering. Well, the statements that he made 
certainly are statements that I would not agree with, that I 
would not subscribe to today, that were wrong.
    Senator Durbin. Were they racist statements?
    Judge Pickering. They were racist statements. Now, he--I 
think Carroll was trying to move the State forward as much as 
he could and be involved in politics, and I think that is what 
Governor Winter was saying in his statement when he said that 
Carroll Gartin was viewed as a--the segregationist candidate 
was always recognized as being Ross Barnett. He was sort of the 
same rhetoric as was Governor Wallace and the reason Carroll 
Gartin was defeated.
    So you are correct. Those were racist statements, without 
any doubt, but his philosophy and what he was trying to--would 
have been not to have been as radical as Ross Barnett.
    Senator Durbin. Let me ask you to fast-forward to a more 
recent date because this is history; it goes back many, many 
years. And the year was 1994 and it involved a cross burning 
case which I am sure you expected to be questioned on. This was 
a case which was described to us as a very sad and tragic 
situation, as I read it.
    In 1994, in a rural town in Mississippi, two men and a 
juvenile decided to burn a cross in the front yard of an 
interracial family, the Polkeys. In the early morning hours, 
the three defendants constructed an 8-foot cross, dowsed it 
with gasoline, placed it on the property of the Polkeys and set 
it on fire.
    The defendants, who had been drinking, repeatedly referred 
to the family--and I apologize to the Committee, but I am going 
to use the words that were used in the transcript here; I 
apologize for the use of these words, but this is what it 
says--referred to the family as niggers and nigger-lovers.
    Prior to this incident, this family had been a frequent 
target for harassment. On one occasion, someone spray-painted 
``KKK'' in the road directly in front of the house. A short 
while later, they came home to discover a bullet hole in their 
front door. Two months before the cross burning, the juvenile 
had fired a bullet through the window of the Polkeys' house 
next to the bedroom where their 2-year-old daughter was 
sleeping.
    The juvenile told the other two men what he had done. Two 
of these individuals decided to plead guilty and to accept a 
reduced plea to testify against the third individual. The third 
individual refused to accept a plea bargain and went to trial. 
You were the judge at that trial.
    The thing that I find troubling here is a memorandum given 
to us by the Department of Justice after the guilty verdict was 
entered, the lengths that you went to to try to protect this 
defendant, referring in the sentencing hearing to the fact that 
this was just a drunken prank.
    I read this and wonder did you regularly contact the U.S. 
Attorney's office and the Department of Justice in Washington 
asking for them to give special consideration when it came to 
using the exact wording of the law, the sentencing of the law, 
or was this cross burning case an exceptional situation?
    Judge Pickering. Senator, let me tell you fully what I told 
Mr. Swan when he came before me for sentencing. I advised Mr. 
Swan this is conduct that will not be tolerated. Your views on 
interracial marriage or those of anybody else involved is 
completely immaterial.
    I described the cross burning as a despicable act. I 
observed that the act was drunk young men doing a dastardly 
deed that they should not have had in their heart. I further 
stated cross burning is a heinous crime. So I don't have any 
feeling that what you did should be swept under the rug or what 
you did--that you are an innocent person.
    I told Mr. Swan, you are going to the penitentiary because 
of what you did, and it is an area that we have got to stamp 
out, that we have got to live races among each other and the 
type of conduct that you exhibited cannot and will not be 
tolerated. So I don't want you to think that you are going to 
the penitentiary for something somebody else did. I would 
suggest that during the time you are in prison that you do some 
reading on race relations and maintaining good relations and 
how that can be done.
    Senator Durbin. Judge, my time has run out. I am going to 
ask one last question. Is it not true that you went to 
extraordinary lengths in this cross burning case with the 
prosecuting attorney and the Department of Justice to try to 
have a reduced sentence for this defendant?
    Judge Pickering. The issue with me was disproportionate 
sentence. The most culpable racist of the group the Government 
had brought--and before I knew the facts, they had him enter a 
plea to a misdemeanor and then when they came on this case, the 
young man--the Government's recommendation was 7\1/2\ years.
    The Government had agreed to home confinement for the first 
defendant, who was the most culpable and who was the only--was 
the most racist of them. The issue with me was disproportionate 
sentencing. The statements that I have just read to you were my 
views of--were my views of what he had done.
    Now, the sentence I gave him was 9 months more than the 
Government offered him if he had taken a plea bargain.
    Senator Durbin. Which he didn't take.
    Judge Pickering. Which he didn't take, and the guidelines 
provide--would have provided for that 9 months' difference. If 
he had pled guilty, he would have gotten 9 months less. He got 
9 months more because he didn't plead guilty.
    Senator Durbin. Thank you, Madam Chairman.
    Senator Feinstein. Thank you, Senator Durbin.
    Senator Kyl?
    Senator Kyl. Thank you, Madam Chairman. Since I had to be 
in the Intelligence Committee and couldn't be here for most of 
the questioning, I think it would be unfair if I tried to go 
through a bunch of questions because undoubtedly a lot of it 
has been covered.
    So I just have one or two, but I do want to comment a 
little bit on the tone of what I perceive. I was here in the 
very beginning and then picking up recently, and I just wonder 
what the public must think watching a hearing like this: a 
candidate who 12 years ago passed the Committee and the floor 
unanimously when he became a Federal district judge, who served 
with distinction, and now is being cross-examined here as if he 
is almost a criminal. Very tough questioning on that side of 
the dais, very negative questioning against this nominee.
    Those of us on this side seem to be his defenders, and I 
suspect the public says, boy, there is politics as usual again. 
And I don't think that puts this Committee in a good light at 
all, especially as the Senator from Illinois began his comments 
saying you have to understand the context, Judge Pickering. 
Several of President Clinton's nominees didn't get a hearing, 
or didn't get a hearing quickly.
    I don't recall the exact words, but the implication was 
that if some of those nominees didn't get a hearing or a quick 
hearing, then maybe that had some relevance to the 
qualifications of Judge Pickering, which I don't see as being 
relevant.
    I think there is something to this notion of partisanship 
in a hearing like this, and it bothers me greatly because we 
have a lot of vacancies on the circuit courts and we have some 
very good nominees. The American Bar Association, which 
certainly shares a good reputation on the left side of the dais 
here, has rated this candidate ``well qualified'' and 
``qualified,'' the majority ``well qualified,'' based upon his 
temperament, his background, his decisions, the very low rate 
of reversals and the like. Yet, we are dragging up things about 
what a candidate for Governor said back in 1959. The answer 
that the nominee gave here was, well, those statements are 
racial.
    I think as a Committee we have to be very, very careful 
because history will judge us. And I understand it is the right 
of outside groups to be as tough as they want to on anybody. 
They smear us regularly during campaigns. That is their right, 
and we all defend that right, but I don't think we have to go 
along with that.
    So, Madam Chairman, the only questions, other than the 
Senator from Illinois, that I heard were your questions in the 
first round. They were all legitimate, reasonable questions. I 
found nothing to object to any of them. And they were all 
answered, and I thought the answers were legitimate, reasonable 
answers.
    I just hope that rather than bringing political views to 
the hearing and sticking with them regardless of what the 
witness has said, unless this is all just a show and we are 
simply going to act out our pre-conceived notions here, we will 
fairly listen to the answers that the nominee is giving to 
these questions and the tone in which he is giving them and the 
spirit in which he is giving them, and we will evaluate those 
answers in the context of all of this.
    I think if one does that, at the end of the day, whatever 
political prejudices we all have--and we have to all 
acknowledge we have them--the nominee can be confirmed. I have 
just found that all of us in politics have an infinite capacity 
for rationalization and we can defend just about any position. 
Most of us are lawyers.
    Fortunately, Madam Chairman, you are not burdened with that 
fact, and therefore maybe this doesn't apply to you. But we can 
all argue either side of a case. Give us a little bit of fact 
and we can make a big deal out of it, and I just think maybe 
that is what is happening here.
    The question that I have to the nominee is one that I ask 
most nominees during these kinds of hearings, and it seems like 
a perfunctory and general question and all nominees answer the 
question pretty much the same way.
    Judge Pickering, you are under oath. You have been 
questioned in a pretty tough fashion here, so you need to 
really give this question a lot of thought, I think, before you 
answer it and I think the answer should carry some weight with 
the Committee.
    You have described in answers to questions how you would 
rule on cases. Obviously, we all have some differences of 
opinion on this Committee, and you have differences of opinion 
with us as to personal political views.
    Describe for the Committee how you will approach ruling on 
cases as a member of the circuit court, especially as it 
relates to your personal views.
    Judge Pickering. Well, I think my personal views are 
irrelevant. You look at the Constitution or the statute and you 
follow the language. If it is an area where you have Supreme 
Court cases interpreting that statute or that section of the 
Constitution, to the best of your ability you follow those 
Supreme Court decisions. If you happen to be in the Fifth 
Circuit, as I am, you follow the precedents of the Fifth 
Circuit, unless they are reversed en banc. That is how I would 
approach it.
    Senator Kyl. Are you familiar with the standards of the 
American Bar Association and the basis upon which they rate 
people under consideration for positions on the court?
    Judge Pickering. Well, I know that they call an awful lot 
of lawyers who have appeared before you and they get--and the 
question has been asked if I had asked any of these attorneys 
to write letters. Well, I don't know who the American Bar 
Association talks to. They talk to whomever they want to and I 
never know it unless a lawyer tells me.
    And so it was based on they analyze my opinions and see how 
I have written. They contact the people that have contact with 
the court and it is based on that, is my understanding of how 
they--and they do a personal interview, and I must say that is 
one of the things in this case that was pleasant.
    After the American Bar Association representative had 
interviewed the lawyers and then asked me to meet with him, I 
drove to New Orleans and met with him and that was one of the 
most pleasant things that has occurred in the--because at that 
time he shared with me some of the background that he had 
picked up, some of the comments that he had picked up, and it 
was a pleasant experience.
    Senator Kyl. Now, you said you had rendered about how many 
decisions?
    Judge Pickering. Approximately--you know, as to how many 
opinions that I have out there, I should point out that I have 
never said there were an exact number because I don't know. I 
gave an estimate that it was somewhere between 4,000 and 4,500 
cases that I have handled, and that I estimated I had written 
opinions in about 25 percent of those, which would be 
approximately 1,000. And there was close to 100, a little less, 
of those that were written, so there should have been about 
1,000 unpublished.
    Senator Kyl. I must say I practiced law for 20 years, much 
of it in Federal court, and very rare was the decision of a 
court that was actually written--a district court I am now 
talking about--that was written in the form of an opinion. I 
can think of three or four and not many more than that, and we 
had some pretty substantial cases.
    So I think folks should realize that the fact that a 
district court judge is not writing a lot of opinions is simply 
to comply with the guidelines that are given to Federal 
district judges not to burden the West Publishing Company and 
others with a lot of written opinions.
    Madam Chairman, thank you.
    Senator Feinstein. Thank you very much, Senator Kyl.
    Senator Cantwell, you are next.
    Senator Cantwell. Thank you, Madam Chairman.
    Judge Pickering, I want to go over an issue that has been 
brought up by several of my colleagues, but first I want to 
assure you that I am not a member of a leftist organization. I 
certainly respect the work of Senator Hatch, but I believe that 
the people in my State who are writing to me on your nomination 
are not members of a leftist organization.
    They are concerned about the fundamental right of privacy 
and its constitutional protection. They are concerned about how 
businesses handle their medical and financial information. They 
are concerned about how government obtains and handles personal 
information about them, and they are concerned about government 
intrusion into personal decisions.
    I think you have gotten the sense of concern about the fact 
that the Fifth Circuit encompasses three States that all 
continue to have laws prohibiting abortion on the books, even 
though those laws are unconstitutional and unenforceable. You 
can hear the concern today about the constitutional rights in 
which there was precedent which were decided one way and then 
overturned. Several of those cases dealt with constitutional 
rights.
    So I heard your answer on the question about looking at 
controlling precedents and what statutes would say, but how do 
we have confidence in what you are saying today that you are 
going to follow precedent? And I want to bring up one issue 
because this is where America is getting confused on this 
issue.
    I am new to this Committee. I think I am probably only the 
second or third woman ever in the history of the Senate to 
serve on this Committee, so I wasn't here when Judge Thomas was 
nominated to be on the Supreme Court. But when pushed on this 
question he said, and I quote, in answer to Senator Metzenbaum, 
``Senator, as I noted yesterday, and I think we all feel 
strongly about this in the country, our privacy--I do; I 
believe the Constitution protects the right to privacy.'' That 
was his response, and yet shortly thereafter he dissented in 
the Planned Parenthood v. Casey decision.
    So we are confused about nominees who come before us who, 
in the past, had personal views that say one thing, come and 
tell us they will follow precedent, and yet there are instances 
in their background where they haven't followed that precedent 
as it relates to constitutional rights. So I wanted to ask you 
about this and about where you see that constitutional right to 
privacy in the Constitution.
    Judge Pickering. The Supreme Court--you know, I was 
thinking when you were asking the question about the Supreme 
Court. Being on an appellate court, the Fifth Circuit Court of 
Appeals, of course, is different than being on the Supreme 
Court because the Supreme Court establishes the precedent that 
we have to follow. I will follow the Supreme Court precedent, 
so that is one difference in the situation of Justice Thomas 
and myself.
    And I was just thinking that going through this process at 
my age, this is the last time I will be before this Committee. 
So I will follow what the Supreme Court has said, and I think 
that is the difference. The Supreme Court has spoken on the 
issue. I will follow that decision.
    Senator Cantwell. In October when the Committee met--and I 
was unable to attend that hearing--you were asked whether you 
recognized the constitutional right to privacy and you 
responded that the Supreme Court has recognized that right to 
privacy and that you would follow that precedent. But you did 
not say that you personally recognize in the Constitution that 
right to privacy, so I am asking you do you recognize that.
    Judge Pickering. I think the Supreme Court recognizes--I 
think the Constitution recognizes rights to privacy and I think 
the Supreme Court has delineated what those rights are.
    Senator Cantwell. So you believe that the Constitution 
permits the Federal courts to recognize those rights that are 
not specifically enumerated in the Constitution, like the right 
to privacy, like the right to travel? You believe that?
    Judge Pickering. In some instances, certainly.
    Senator Cantwell. What about this right?
    Judge Pickering. You are talking about on abortion?
    Senator Cantwell. Yes.
    Judge Pickering. I will--you know, my personal view--again, 
Senator, in the October hearing I stated I thought that was 
immaterial and irrelevant; that I thought that I would follow 
the decision, and I will. I will follow the Supreme Court 
precedent.
    Senator Cantwell. But I am asking you about do you 
recognize--I think this is where the division or diversion has 
been in the past. Somebody said ``I will uphold this,'' but I 
want to know fundamentally--and I am going to ask this of other 
people who come before us for nomination, where do they see in 
the Constitution that right to privacy and its protection.
    So do you see that the right to abortion is protected in 
the Constitution under the rights of privacy that are there?
    Judge Pickering. Senator, you know, as to my personal 
views, again----
    Senator Cantwell. I am asking you whether you see that as a 
judge, as a lawyer.
    Judge Pickering. I think so, because the Supreme Court has 
said it is there.
    Senator Cantwell. OK. I am not sure I am getting an answer, 
but you are answering my question. You are giving me what your 
opinion is on that.
    This is a followup to this. The Fifth Circuit in reviewing 
cases of legislative acts seeking to restrict abortion 
basically has a higher standard. It uses a standard of review 
that requires the challenger to prove that there is absolutely 
no set of circumstances under which the regulation could be 
constitutional.
    In contrast, five other circuits in reviewing the same type 
of restriction followed the standard of the Supreme Court's 
more recent ruling in Casey v. Planned Parenthood that a 
restriction is only constitutional if it does not impose an 
undue burden. So it essentially reverses the burden of proof.
    Do you believe in the standard of review more recent in 
Casey, that that is a more appropriate standard and that is 
what the Fifth Circuit should be using?
    Judge Pickering. Senator, the Fifth Circuit precedents in 
the abortion area is not an area where I have done research, 
but I would say that, you know, I think the Supreme Court 
decision is the decision that trumps other decisions. I am 
bound by the Supreme Court precedent, I am bound by Fifth 
Circuit precedent until it is reversed, and I would follow the 
Supreme Court precedent and I would follow the Fifth Circuit 
precedent.
    Senator Cantwell. You might want to look at that a little 
more clearly about how the Fifth Circuit would use that because 
that is, in fact, what the other circuits are using, is the 
Supreme Court standard.
    I would like to turn to another issue that I think has 
gotten many constituents in the Northwest concerned about their 
rights and how this administration or potential nominees to a 
court could overrule their rights, and this deals specifically 
with the issue of assisted suicide.
    In Oregon, voters passed an initiative permitting 
physicians to prescribe lethal quantities of drugs to aid in 
assisted suicide in very limited circumstances. Last fall, the 
Attorney General announced that he would prosecute physicians 
abiding by the voter-passed initiative and remove their 
licenses.
    Now, based on my review of your record, you appear to be 
very deferential to legislative acts and States' rights. Would 
you give deference to the popular approved State law in this 
case?
    Judge Pickering. Senator, that is an issue that may come 
before me and it is my understanding it is inappropriate for me 
to say how I would rule in a given case. I will give you the 
general principles that I would follow, and that is I would 
follow the Supreme Court precedent and I would follow the 
precedents of the Fifth Circuit.
    I don't feel comfortable going further in that issue. I 
don't--whatever those precedents are, I would follow them. As 
far as doing research on assisted suicide, I have not done 
that.
    Senator Cantwell. I think I still have time for another 
question.
    Your record on employment discrimination issues has been 
discussed today, and in my State the district court recently 
upheld that Title VII requires than an employer provide 
prescription coverage to employees as an obligation, including 
contraceptive coverage to women. The court held that Bartel's 
prescription drug plan discriminated against the female 
employees of that company by providing less complete coverage.
    Do you agree that Title VII's guarantee of equal treatment 
in the workplace logically requires that if an employer 
provides prescription drug benefits to an employee that it must 
provide contraceptive coverage?
    Judge Pickering. That is an issue that I have not 
researched, and I don't think that the Fifth Circuit has ruled 
on that issue. I don't think there is controlling case law, but 
if there is controlling case law from the Supreme Court or the 
Fifth Circuit, I would follow that.
    Senator Cantwell. Thank you, Madam Chair. I see that my 
time is about expired, so I think I will wait on the others 
until the second round.
    Senator Feinstein. Thanks, Senator Cantwell.
    Senator Edwards, you are next.
    Senator Edwards. Thank you, Madam Chair.
    Good afternoon, Judge.
    Judge Pickering. Senator.
    Senator Edwards. Judge, I want to ask you some questions 
about an issue that came up briefly earlier, this issue of 
something that happened in 1994, something that is not in the 
distant past, this case involving the cross burning that you 
were the trial judge for.
    As I understand it, there were three defendants in that 
case, two of whom pled guilty, one of whom went to trial before 
you. Is that correct?
    Judge Pickering. Yes.
    Senator Edwards. The two who pled guilty admitted their 
guilt and took responsibility for their actions. Is that 
correct?
    Judge Pickering. Yes.
    Senator Edwards. And it is customary in criminal cases in 
both Federal and State court to provide, either through plea 
agreement or otherwise, some leniency to those who plead 
guilty, participate in a plea agreement, take responsibility 
for their actions, as opposed to somehow who denies their guilt 
and goes to trial. Is that fair?
    Judge Pickering. Well, the guidelines provide, Senator, 
that there is a two- to three-level deduction in the guideline 
range for one who pleads guilty. And in this instance, it would 
have made the difference in roughly 9 months that he would 
receive for that. Now, the----
    Senator Edwards. I don't want to get too hung up on that. I 
just wanted to ask you that general question----
    Judge Pickering. Yes.
    Senator Edwards [continuing]. Because I have three areas I 
need to ask you about, and they cause me concern and I want to 
give you a chance to respond to them. They cause me concern on 
two different levels. One is what it was that caused you to 
take the action you took with respect to that case; and, two, 
what authority you had as a judge to take the actions you took.
    It appears to me from reviewing all these documents that 
you did three things that are, at least in my own experience 
and through decades of being a lawyer, outside the ordinary.
    One is that you told the lawyers, the Government lawyer, 
after the conviction--and I might add my understanding is that 
even after conviction, this defendant who had participated in 
burning a cross on a couple's lawn with a young child still 
denied that he had done anything wrong or that he was guilty.
    You told the Government lawyers that you would, on your own 
motion, order a new trial. And when the Government lawyer asked 
you, and I am quoting now, what would be the basis for such a 
motion, your answer was ``any basis you choose.''
    First of all, Judge, looking at the rules, and having 
worked with them for years myself, I believe the rules provide 
that a judge has no power to order a new trial on his own 
motion.
    First of all, did you say that you would order a new trial, 
even though no motion for a new trial had been made?
    Judge Pickering. I did not.
    Senator Edwards. So you deny that?
    Judge Pickering. Yes. I have reviewed the transcript.
    Senator Edwards. Yes, sir. Do you deny having said that?
    Judge Pickering. I did not say that.
    Senator Edwards. OK. The second area I want to ask you 
about--so if the lawyers who were involved in that case have 
said that that is a statement you made to them, that would be a 
lie?
    Judge Pickering. Senator, on the record, I mentioned----
    Senator Edwards. Excuse me, Judge. This was not on the 
record. According to the documents that we were provided, this 
took place in a private meeting that you had with the lawyers 
where you told the lawyers you would order a new trial on your 
own motion. And when they asked you--I am quoting now--what 
would be the basis for such a motion for a new trial, you said 
``any basis you choose.''
    Do you deny having said that?
    Judge Pickering. Senator, I have no recollection of having 
said that and I do not believe that I said that. Now, I have 
not seen the document that you are referring to. I have not had 
the opportunity--the Justice Department did not show me the 
file that they had.
    Senator Edwards. Did you have private meetings with the 
lawyers off the record about this case?
    Judge Pickering. The response that I gave to Senator Leahy 
on this indicated that after the first----
    Senator Edwards. I am not asking about Senator Leahy. Did 
you have private meetings with the lawyers in this case?
    Judge Pickering. With the defense counsel and the private 
counsel. I had a meeting with them, yes, sir.
    Senator Edwards. So the private meetings did take place?
    Judge Pickering. A private meeting took place.
    Senator Edwards. OK, and you deny having had any discussion 
in that private meeting about ordering a new trial on your own 
motion, a new trial order that at least from my reading of the 
law you would have no power to grant on your own. Do you deny 
having done that?
    Judge Pickering. There was discussion on the record of a 
new trial on the basis of the instruction, but now I don't have 
any recollection of any indication that I would do that on my 
own motion.
    Senator Edwards. The second area I want to ask you about is 
you made a telephone call to a high-ranking Justice Department 
official, according to the information that we have. And you 
are familiar, are you not, Judge, with the Code of Judicial 
Ethics that applies to you? You are familiar with that, are you 
not?
    Judge Pickering. Yes, uh-huh, I am.
    Senator Edwards. And you are familiar with Canon 3.A.4 of 
that Code which says that ``except as authorized by law, a 
judge should neither initiate nor consider ex parte 
communications on the merits of a pending or impending 
proceeding.''
    Did you make a phone call to a high-ranking Justice 
Department official on your own initiative?
    Judge Pickering. We had had----
    Senator Edwards. Not ``we,'' you. Did you make such a phone 
call?
    Judge Pickering. I called--I have indicated that I called 
Mr. Hunger and discussed the fact that I was frustrated that I 
could not get a response back from the Justice Department and I 
thought there was a tremendous amount of disparity in this 
sentence.
    Senator Edwards. Yes, sir. Were the Government prosecutors 
on the phone when you made that call?
    Judge Pickering. No, they were not.
    Senator Edwards. So that would be what we lawyers and 
judges would call an ex parte communication, would it not?
    Judge Pickering. Well, whether the Government attorneys had 
been on the phone or not, it would have been a question of 
whether or not the defense counsel would have been on the 
phone.
    Senator Edwards. Well, was the defense counsel on the 
phone?
    Judge Pickering. No. We had discussed that with them and 
this was a followup conversation as to what we had discussed 
with defense counsel present.
    Senator Edwards. Were any of the lawyers in the case on the 
phone when you called Mr. Hunger?
    Judge Pickering. No, they were not.
    Senator Edwards. So that was an ex parte communication, was 
it not?
    Judge Pickering. I was.
    Senator Edwards. In violation of the Code of Judicial 
Conduct?
    Judge Pickering. Well, I did not consider it to be a 
violation of the Code of Conduct.
    Senator Edwards. Well, can you explain that to me? The Code 
says you should neither initiate nor consider ex parte 
communications of a pending or impending proceeding. The case 
was still pending at that time, was it not?
    Judge Pickering. It was pending, and Mr. Hunger indicated 
this was not something----
    Senator Edwards. And you made an ex parte communication, 
did you not?
    Judge Pickering. I talked with Mr. Hunger.
    Senator Edwards. Didn't you just tell me that was an ex 
parte communication?
    Judge Pickering. Well, it was ex parte from the standpoint 
I was talking, but he did not have responsibility to make a 
decision in this case.
    Senator Edwards. In a third area, on the same case, did you 
also direct the Justice Department lawyers, the line 
prosecutors, to take your complaints personally to the Attorney 
General of the United States?
    Judge Pickering. In the order, yes, sir.
    Senator Edwards. Can you tell me, Judge, in how many other 
cases, and if you can tell me the names of the cases where you 
have, after a conviction and prior to sentencing or subsequent 
to sentencing, told the lawyers in a private meeting that you 
would order a new trial on your own motion, contacted on your 
own initiative, contrary to the Code of Judicial Conduct, a 
high-ranking Justice Department official about a case pending 
before you, and, third, directed line prosecutors to take your 
complaints personally to the Attorney General of the United 
States?
    Can I just ask you, have you ever done that in any other 
case, to your memory?
    Judge Pickering. May I explain my answer then?
    Senator Edwards. Of course.
    Judge Pickering. I have never had--no, I have never had a 
case where the disparate treatment was so great as it was in 
this case, from the most culpable parties. The Government came 
in and agreed to a plea to a misdemeanor that resulted in a 
sentence, and the Government agreed to home confinement for 
those. And then they were recommending 71/2 years for the 
defendant who happened to be a little bit older, but who was--
the most racist one of the group was the 17-year-old, and I 
felt that this was tremendously disparate treatment. I did not 
feel it was inappropriate to say I want to know that this is 
the policy of the Government, and asked them to do that.
    Senator Edwards. Do you believe, Judge, that if you 
disagree with the law as it applies in a particular case, as 
apparently you disagreed with the mandatory minimum sentence in 
this case compared with the other sentences that had been 
handed down--do you believe that if you have such disagreement 
that that entitles you, No. 1, to do things that the law does 
not authorize you to do, or, No. 2, to engage in ex parte 
communications with people involved in the Department of 
Justice?
    Judge Pickering. Well, Mr. Hunger was not involved in the 
decisionmaking process, and then----
    Senator Edwards. Why did you call him?
    Judge Pickering. I called him----
    Senator Edwards. Why did you call him about the case if he 
wasn't even involved?
    Judge Pickering. I called him to discuss my frustration 
with the Department of Justice and to see his reaction.
    Senator Edwards. Did you ask him to do anything?
    Judge Pickering. No.
    Senator Edwards. Wait a minute. I want to get this--you 
call him about the case. You were concerned about what had 
happened in the case. He is in the Department of Justice. I 
know Mr. Hunger. He is someone I like and respect very much, by 
the way.
    But you didn't talk to him about doing anything. You didn't 
ask him to do anything. You had no conversation with him about 
doing anything about the case. Is that your testimony?
    Judge Pickering. I called and expressed my frustration 
about the disparate treatment and I called and expressed my 
frustration about the fact that I had instructed the attorneys 
to get an answer, a response, from the Department of Justice in 
Washington. They had not done that.
    Senator Edwards. What did you want them to do about it?
    Judge Pickering. Well, at that time I wanted--I guess more 
than anything else, I wanted to vent with someone the 
frustration that I was experiencing in not being able to get a 
response. And he was a friend----
    Senator Edwards. So you didn't ask him--excuse me. I am 
sorry. You didn't ask him or expect him to do anything about 
it?
    Judge Pickering. No, sir.
    Senator Edwards. Thank you, Madam Chair.
    Senator Feinstein. Thank you, Senator.
    Chairman Leahy. Madam Chairman, might I just note one 
thing? The material that Senator Edwards has quite 
appropriately quoted from was material we requested from the 
Department of Justice a week ago. Just barely before this 
hearing began--I think I was on my way over here--I was told it 
just arrived, a heavily redacted copy of it.
    The Department of Justice told us that it was a heavily 
redacted thing, but we were restricted to how we could put in 
the record, and so on and so forth.
    We have asked them, Judge, in fairness to you, that a copy 
also be given to you. I must admit that I am not quite sure why 
so much stuff is redacted about your conversation or anything 
else in here, but I just want you to know I made that request. 
And I repeat that request to the Department of Justice and the 
administration and White House people who are here to make the 
same papers available to you. Actually, I would ask them to 
give you the whole copy, not any part redacted, and give us the 
part they have held back, too. But I just want you to know that 
just as I notified them of what areas I would question you 
about, I want them to give this to you, too.
    Judge Pickering. Yes, sir.
    Senator Feinstein. Thanks, Mr. Chairman.
    Judge Pickering, are you OK to go on or do you want to take 
a break?
    Chairman Leahy. You are allowed to.
    Judge Pickering. Yes, I think I would like to take a break.
    Senator Feinstein. You would like to take a break?
    Judge Pickering. I would like to take a break, yes. I think 
it is, what, 10 minutes after five. We have been going----
    Senator Feinstein. All right. Is 5 minutes OK?
    Judge Pickering. Take 10?
    Senator Feinstein. Ten minutes. We will see you in 10 
minutes.
    [The Committee stood in recess from 5:11 to 5:32 p.m.]
    Senator Feinstein. The hearing will come to order.
    Judge Pickering, I know this is tough because the afternoon 
is always a long one. Having said that, we apparently are going 
to have two stacked votes at 5:40. Left in this round, Senator 
Schumer, I believe, is the last person for this round of 
questions.
    There are Senators who do have additional rounds for the 
next round. So if it is agreeable with you, I would like to go 
now kind of non-stop until we conclude, and members when the 
votes comes up just one by one will go down and vote.
    Is that acceptable with everybody?
    Senator Hatch. Yes.
    Senator Feinstein. Good. Then, Senator Schumer, you are up.
    Senator Schumer. Well, thank you, and I want to thank you, 
Madam Chairman.
    I want to thank you, Judge Pickering, and welcome you back 
here. This is your second hearing. As you know, the first one 
was held under very difficult circumstances in the small room 
over in the Capitol and there were four other judicial nominees 
on the panel. We hadn't had a full opportunity to review your 
record. You were nice enough to go through the whole work with 
us and get all of the other opinions which we have now had a 
chance to look at, and I want to thank you for being here.
    My questions are in two areas. The first is just on general 
judicial philosophy and where it plays. As you know, last 
summer I chaired some hearings examining the judicial 
confirmation process and looked at the role that judicial 
ideology plays and whether nominees bear a burden of proving 
themselves worthy of any lifetime seat on the Federal bench.
    After chairing those hearings, it seemed to me that we 
should have the process be more open and honest. We should talk 
about a nominee's judicial philosophy. We should let that play 
a role in how we vote for judges. We have always done that, but 
we have done it beneath the table and it leads to a process 
that is sometimes less than honest.
    I think it is very important right now more than ever for 
the appellate court. The Supreme Court is taking fewer and 
fewer cases every year, so that circuit court judges really do 
have the last word for every American who wants to have his or 
her day in court.
    For somebody like myself who believes in moderation on the 
bench, we are in an era of unprecedented conservative judicial 
activism. The Supreme Court is leading the charge and the Fifth 
Circuit is not far behind. The courts are cutting back, in my 
judgment, on Congress' power to protect important areas such as 
the environment, such as workers' rights, women's rights.
    It is a simple proposition, but I think many in the courts 
have lost sight of it recently, and that is Congress makes the 
laws. Judges are nominated and confirmed to interpret and apply 
those laws. That is the balance the Framers struck. It worked; 
it has been working well since Marbury v. Madison.
    But now, like no time in our past, I think we are seeing a 
finger on the scale, slowly but surely altering the balance of 
power between the Congress and the courts. I think Justice 
Breyer summed it up well, at least for me, in his eloquent 
dissent in the Violent Against Women Act cases. He said, 
``Since judges can't change the world, it means that within the 
bounds of the rational Congress, not the courts, must remain 
primarily responsible for striking the appropriate State-
Federal balance.''
    We are charged, it seems to me, for better or for worse, 
with making policy. Your rule, the judge's role, is different. 
It appears to me, however, that with increasing frequency the 
courts have tried to become policymaking bodies, supplanting 
court-made judgments for ours. That is not good for our 
Government and our country.
    I would say that view is particularly prevalent on the 
Fifth Circuit. It has become one of the most conservative 
courts in the country. It is in danger of swimming outside the 
judicial mainstream. As my colleague, Senator Durbin, pointed 
out, a number of nominees that would have balanced the court 
were held up in the last Congress.
    So I want to put that in the context of your record. It is 
no secret you have some strong views. This is America. God 
bless you for those views, but they are quite different, I 
would say, not only from mine and the majority of my 
constituents, but quite outside the American mainstream.
    Most Americans believe in the right to choose. You have 
endorsed amendments to overturn Roe. As Senator Kennedy's 
questions brought out, you look at voting rights differently 
than I do. What, I guess, troubles me is in your cases, at 
least the ones that I have read, you have injected your own 
opinions into the case law, worrying me about what you might do 
on the bench.
    I will give you one example. There was a racial 
discrimination case, Foxwood v. Merchants Company, 1996, and in 
it you complained about the ``side effects''--these are your 
words--``from anti-discrimination laws,'' unquote, that cause 
people protected by such laws to, quote, ``spontaneously react 
that discrimination caused any adverse reaction against them.'' 
That is not the law. That is your opinion, and it is a comment, 
I think, that doesn't indicate just a following of the law.
    You have said to the panel repeatedly that you would follow 
the law, but, you know, we have had that before. We have had 
judges who come before us and say, look, I am just going to 
follow the law. Senator Cantwell brought this out, I guess, 
when now-Justice Thomas was here. He said he would follow the 
law on Roe v. Wade and then, at least in the opinion of many 
legal scholars, his opinions went outside.
    What more can you say to us, to those of us concerned with 
judicial philosophy who believe that is one of the main ways we 
vote for judges on two counts? One, how can you convince us, 
other than just saying you will follow the law, that you will, 
particularly given the penchant for invoking your own opinions, 
your own views, in the cases?
    And, second, some of my colleagues had argued, my good 
friend from Alabama, that the Ninth Circuit was too far to the 
left and needed some judges on the right side to balance it. I 
believe he said. I may not be right, but I have heard the 
argument.
    Senator Sessions. The record demonstrated an extraordinary 
reversal rate, unlike anything that the Fifth Circuit has. The 
Fifth Circuit is not outside the mainstream.
    Senator Schumer. I will reclaim my time.
    Senator Feinstein. We will stay, gentlemen----
    Senator Schumer. I invoked his name and he had every--my 
good friend, Jeff, had every right to respond. We are good 
friends, actually.
    Second, what about the idea that we should be looking for a 
more moderate nominee on the Fifth Circuit, at least if you 
believe that the opinions of the Fifth Circuit are quite far 
over and that moderation is called for and balance is called 
for?
    Can you answer both of those questions, please?
    Judge Pickering. Well, the first question, Senator Schumer, 
you were asking about the case--I believe it was the Flowers 
case. In that case--and when I indicated that I felt like this 
type of reaction really was inimical to not having 
discrimination in the workplace, these two defendants, or the 
two plaintiffs in that case had chased down a--they were rather 
large individuals. I heard the testimony in the case.
    There was a rather diminutive African-American that they 
had threatened to kill because he had come in and he was a 
Federal agent and he had come in and he had investigated their 
store for food stamp fraud. And then the company that was 
giving them credit stopped their credit because of this charge 
on this situation, which to me this was a frivolous lawsuit.
    And my comments had more to do with the fact that this was 
a frivolous lawsuit and that people are abusing it, and I think 
that does create problems for everybody who has a legitimate 
claim and I think it is disruptive to--I think it makes it 
harder on those who have legitimate claims who make it, and I 
think it also disrupts race relations whenever people claim 
discrimination when there is no discrimination. That is what my 
remarks were intended to reflect.
    Senator Schumer. I understand, but that didn't have 
relevance as to following law in the case, did it? It was your 
own view as to people's reaction to an existing law.
    Judge Pickering. I felt like it was a comment on--the 
comment was intended to discourage people from bringing 
frivolous lawsuits.
    Senator Schumer. OK, but let me ask you to answer the two 
general questions that I have asked.
    Judge Pickering. All right.
    Senator Schumer. What more than just words can you do, and 
maybe there is nothing, to assure us that you would follow 
existing law rather than in a judicially active way try to 
change it?
    Judge Pickering. Senator, I don't know but two ways to 
establish that. One is, of course, your testimony under oath, 
and the other is your record for 10 years. As the Legal Times 
article in which they analyzed it, they concluded that I had 
followed the law, that the criticism that I had injected 
personal views did not keep me from following the law whenever 
that came down.
    I viewed these as I did the one in ERISA. It was a question 
of public interest, which is one of the bases for publishing, 
and that opinion was used in the debate for a patient's bill of 
rights in the House of Representatives. So it is sort in the 
nature of a law journal article or a dicta. Precedents come 
from dissents and they come from dicta in cases and they come 
from law journal articles.
    Senator Schumer. I may come back to the balance issue, but 
I don't know how much time I have and I want to get this and I 
want to give you your chance here.
    The case that has been cited, the cross burning case that 
has been cited by some of my colleagues, I need not tell you is 
of great concern to many members of this panel. And it wouldn't 
be fair for us not to give you a full chance to give your views 
and tell us something, and let me just tell you where at least 
I come from on this.
    It seems to me that cross burning is not just a prank; it 
is a dagger aimed at the heart of what has been the poison in 
America, which is our problems with race. The Founding Fathers 
knew that was our biggest problem and chose to push it under 
the table. Many of them, I think, later admitted that that was 
the greatest mistake they made in the Constitution. When de 
Toqueville came to America in 1830-something, he said that this 
country will become the greatest country in the world, except 
for the poison of race.
    I have to tell you, when someone burns a cross, you know 
that it is not just a prank, it is just even aimed at the 
person on whose lawn the cross is burned. It is aimed at all of 
America and it brings up the invidious history we have had in 
this regard. So a mandatory sentence was established for that 
reason. This is different than any other kind of prank.
    I have to tell you the reasoning that you give for wanting 
a reduced sentence, the disparity, doesn't wash with me. I 
haven't heard as many cases as you.
    Senator Feinstein. Your time is up.
    Senator Schumer. Thank you.
    I know case after case where someone pleads to the State's 
evidence and gets a year or two in a murder case, and someone 
else gets life imprisonment. This happens regularly. So I guess 
many of us find it to be, I guess, curious--``troubling'' would 
be a better word--that on this kind of case where there should 
from any citizen, let alone a judge, an unusual sensitivity, an 
almost extraordinary effort to get a lower sentence, you would 
go below the mandatory minimum when the disparity is not all 
that unusual.
    I could sum that up. I have talked to some of my 
colleagues. I think that is a general feeling here, and we 
would not be fair to you if we were to vote on your nomination 
without giving you the full chance. It won't satisfy me for you 
just to say disparity, because there should be greater 
sensitivity, No. 1. And, No. 2, in my less long, less extensive 
legal career than yours, I know of many more cases where there 
is a greater disparity than 27 months in terms of sentencing.
    Can you elaborate on what motivated you to go to go to the 
efforts you did on this particular case? Tell us why, in 
something as sensitive as cross burning, something inside you 
didn't say, you know, this is not one to go to the mat on.
    Judge Pickering. Senator, the disparity--the sentence was 
27 months different. What concerned me is the Government came 
in and they pled the 17-year-old to a misdemeanor, and at the 
very start they told me we have no objection to home 
confinement. That was the position of the Government to begin 
with.
    I did not know the details at the time that I took the 
plea. I did tell the Government I have some concern about 
whether or not this is going to create problems with disparity 
of sentence. Then they came in and they pleaded the second 
defendant to a misdemeanor, and he had diminished capacity and 
they had no objection to his pleading in that manner.
    Both of these wound up, by agreement with the Government, 
with home confinement. There were some terms placed on these 
that they were limited in certain areas and they were ordered 
to do some things in the area of race relations and 
restitution.
    Now, when the evidence came in, it turned out that the 17-
year-old had shot into the house and the Government did not 
charge the 17-year-old with shooting in the house. Likewise, 
the 17-year-old--there was testimony that he had always been a 
racist. The testimony in the record before me was that he was 
by far the most culpable, that he had previously shot into the 
house and the Government did not elect to prosecute him on that 
and agreed to home confinement.
    Then they came in, they offered to have Swan plead guilty. 
They told him he could not plead guilty to a misdemeanor, but 
they did allow him, or offer him pleading guilty to a felony 
that would have resulted in about a 15-month sentence. That is 
what the Government had agreed with him at the beginning, that 
if he pled guilty the guidelines would have calculated out 
about 15 minutes--15 months, is my understanding from what I 
have been able to review.
    And, again, I have only reviewed the documents that the 
Committee has seen just very momentarily when I went outside 
just a few moments ago, and I have not really done anything 
more than cursorily reviewed that.
    Senator Schumer. But according to Justice, Swan was the 
leader of the case, the ring leader.
    Judge Pickering. I heard the evidence and my perception was 
that he was not. I had that clear perception, and I think that 
the testimony that was there will indicate that the one that 
was the instigator of it was the 17-year-old. Swan did go on 
it.
    Now, Swan--the reason he did not plead guilty--he never 
denied that he went and burned the cross, and he indicated that 
he was willing to go and apologize to Mr. Polkey the next day. 
But he went down there and Mr. Polkey was outraged and he 
decided that he better not, that he might be in danger. But he 
denied that he had the necessary intent.
    Now, in the eighth--there were four of the appellate court 
judges that reviewed this that said that Section 844 did not 
apply to cross burning. 844, they said Congress adopted was to 
apply to arson, the crime of arson, but not to cross burning.
    Now, one of the circuits had come out that it did apply to 
cross burning, and one of them had come out that it did not. So 
that was a decision the Fifth Circuit had not spoken on. My 
problem with this and the thing that I really felt was wrong is 
that the Government was coming in and that they were 
recommending 7\1/2\ years for Swan and that they had 
recommended home confinement for the other two. I thought that 
was disparate. I thought it was really the worst case of 
disparate sentencing that I had ever seen.
    Now, I don't want to think for 1 minute that I minimized 
the seriousness of cross burning. That is why I took a stand, 
not just that reason, but the acts of the Klan in those areas 
of trying to intimidate people because of race is something 
that is despicable, and that is why I took a stand against the 
Klan in the 1960's.
    And when I was sentencing Mr. Swan, I told him this is 
conduct that will not be tolerated. This is a despicable act. 
You have got to pay a debt to society. It is a reprehensible 
crime, it is a dastardly deed. Cross burning is a heinous crime 
and you are going to the penitentiary for what you have done.
    So I view, as do you, Senator, that it is a heinous crime. 
I so stated in the record. The only problem that I had in this 
situation was the disparity of sentence of having the most 
guilty defendant--the Government came in and pled him to a 
misdemeanor, where he had home confinement, and now they wanted 
to sentence this one to 7\1/2\ years.
    There was a split in the circuit, and if I had followed the 
Lee case, the sentence would have been in this area. When the 
time came to sentence him, I sentenced him to the mid-range of 
the guideline line that the Government agreed to in the 
memorandum of understanding. The guideline was 24 to 30 months. 
I sentenced him to 27 months. That was 9 months more than he 
would have gotten had he pled guilty before trial.
    Senator Schumer. Thank you.
    Senator Feinstein. Thank you, Senator Schumer.
    We are going to go into our second round now. One last 
question on the Swan case, if I might. Was it true that Mr. 
Swan drove the truck and provided the wood for the cross?
    Judge Pickering. It was his truck. Whether or not he--he 
was intoxicated that night. I don't recall without reviewing 
the transcript more than I have, Senator Feinstein, Madam 
Chairman.
    Senator Feinstein. Did he provide the wood for the cross?
    Judge Pickering. They went to his barn and got the wood, 
yes.
    Senator Feinstein. OK, all right.
    Judge Pickering. But I did not consider that nearly as much 
of an indication as the young boy who had come by there and 
shot into the house, and that there was testimony that he had 
always had--harbored racial animus.
    Senator Feinstein. I understand.
    I would like to use my time in a little different way 
because, in a sense, for many of us this particular seat is as 
important as a Supreme Court seat. And I want to explain to you 
why, and in order to do it I would really like to read 
something that was sent to me on the Fifth Circuit.
    ``The Fifth Circuit once served as a trailblazer in 
protecting individual rights. During the 1960's and 1970's, the 
Fifth Circuit enforced and protected various individual rights, 
such as, one, requiring desegregation in almost every aspect of 
the fully segregated South; two, enforcing voting rights; 
three, prohibiting employment discrimination based upon race; 
and, four, finding that psychiatric patients who were 
involuntarily committed to State institutions had a Federal 
constitutional right to adequate treatment. Four of the 
circuit's judges exemplified this commitment to protecting 
individual rights. Known as 'The Four' by opponents, they were 
accused of destroying the Old South by dismantling the systemic 
segregation of African-Americans that existed in every aspect 
of society.''
    To a great extent, I think the testimony today has brought 
out what a different world it was, indeed.
    ``However, the current Fifth Circuit dismally fails to live 
up to the legacy of its predecessors. The court is more likely 
to eliminate to limit rights than to preserve or enforce 
them.''
    That is where your appointment becomes so critical. We all 
know you are a conservative. That is not really the problem. 
The problem really is that--and I am going to talk to you about 
the Equal Rights Amendment, I am going to talk to you a little 
bit more about reproductive choice, because this becomes a 
pivotal position for people who have fought for decades for 
certain rights. And if you have a conservative--I am not saying 
you are--unabashedly out of the mainstream, all those rights 
get set back.
    Could you respond to the statement, please?
    Judge Pickering. Well, you know, I was looking back in 
preparation. I do not think that my activities and all of the 
things that I have done in my life are outside of the 
mainstream. I think they indicate someone who has been 
concerned about these rights, and that I have taken action to 
protect these rights.
    Going back, I don't want to just keep repeating, but we 
have talked about the cross burning. We have talked about the 
bi-racial Committees. We have talked about the fact that we 
have been involved in integration personally in every aspect 
from religion, to home, to fraternity, to schools. And I am 
committed to protecting the rights in accordance with the 
Constitution. I will have to follow the controlling precedent, 
but I feel like that is an area that I have made a commitment 
to and I think my life history reflects that.
    Senator Feinstein. All right. Now, I supported the Equal 
Rights Amendment. I did research at the time because I was very 
much involved in paroling and sentencing earlier, and women did 
not have equal rights under the law in many criminal actions. 
It is a fact, Judge.
    Now, let me relate that fact to your statement in 1976 at 
the Russian--at the Republican National Convention, and I 
quote----
    [Laughter.]
    Senator Feinstein. We shouldn't laugh. That wasn't funny.
    [Laughter.]
    Senator Feinstein. ``Proponents of the ERA,'' the Equal 
Rights Amendment, ``won its passage only for psychological 
reasons. I don't think the Equal Rights Amendment is needed to 
secure legal rights.''
    Judge Pickering. Well, we came out, the subCommittee I was 
involved in, and we recommended the passage of statutes, of 
laws, to guarantee equal rights to women. I supported that then 
strongly and I still think personally that they are entitled to 
equal rights.
    That is the same position that the legislative bodies and 
the American people have taken to this point. The Equal Rights 
Amendment was never confirmed, but you do have the laws against 
discrimination that have been applied, and then the Supreme 
Court has more recently held that they do have equal rights 
under the Constitution even without an amendment.
    But at the time, I felt like the amendment itself would 
perhaps take away some of the special--some of the rights that 
women did have at that area in regards to domestic matters and 
spouse and in regard to the military. There were a number of 
areas that I thought that they could lose some preferences that 
they had.
    But I supported at that time, and now support, equal 
rights. I have 9 grandchildren and 3 daughters, and I certainly 
would never----
    Senator Feinstein. How many are women? How many are girls?
    Judge Pickering. I have 9 granddaughters.
    Senator Feinstein. Oh, granddaughters.
    Judge Pickering. I have 9 granddaughters----
    Senator Feinstein. That might be a help.
    Judge Pickering [continuing]. And 3 daughters, and I would 
never take away any of their rights. I have 18 grandchildren, 
and next month I will have a tenth granddaughter.
    Senator Feinstein. I guess what I am trying to say to you 
is that at the time that you made that statement, women, for 
certain crimes in certain States, were serving much longer 
sentences than men. I documented it.
    Judge Pickering. That is not right.
    Senator Feinstein. It is not right.
    Judge Pickering. That is one of the--the probation 
officers, whenever they heard that there had been some question 
about my sentencing, they came to me on their own and they were 
discussing the fact that I had been very compassionate in 
trying to find ways not to send African-American defendants and 
other defendants who were first-time offenders who did not have 
violent records--and they were talking about the fact--they 
said, Judge, really you are a pain because you make us prepare 
charts for every multi-defendant case so that you can stay 
equal. So if there was disproportionate sentencing to women at 
that time, I think that was terribly wrong.
    Senator Feinstein. All right. Now, another statement you 
made at that same convention. Let me give it to you and ask you 
to respond, quote, ``We oppose abortion and support a 
constitutional amendment to limit abortion. The Supreme Court 
of the United States allows abortion on demand. It gives the 
husband no say-so. The taking of life is wrong and we should 
oppose abortion,'' end quote.
    Judge Pickering. Madam Chairman, as I have indicated 
before, I know the difference between a political decision and 
position and a personal decision and a judicial decision. I 
will follow the law.
    Senator Feinstein. What do you mean, ``I will follow the 
law?''
    Judge Pickering. I will follow the Supreme Court precedent. 
The Supreme Court has spoken on the issue of abortion and I 
will follow it.
    Senator Feinstein. You are saying you would uphold Roe v. 
Wade?
    Judge Pickering. I would have no choice but to uphold that 
because the Supreme Court has decided it and that would be my 
responsibility.
    Senator Feinstein. I am looking for one question here. Let 
me quickly followup with this. Debate continues in circuit 
courts and at the Supreme Court regarding the protection 
afforded a woman's constitutional right to choose following 
Casey. Senator Cantwell referred to that.
    For example, in the 2000 Supreme Court decision Stenberg v. 
Carhardt, the Justices' opinions revealed a disagreement about 
the meaning of the Casey decision. Justices Souter and O'Connor 
concurred in the Court's opinion that the ban on so-called 
partial birth abortion was unconstitutional because it lacked 
an exception for women's health. However, Justice Kennedy 
dissented, arguing that Casey had scaled back the previous 
decisions holding that the woman's health must be paramount.
    Which opinion in the Stenberg case, Souter and O'Connor, or 
Kennedy, reflects your view about the role that a woman's 
health must play in considering an abortion regulation?
    Judge Pickering. Senator, again, I think that might be an 
issue that I would be called upon to rule upon, and I think it 
would be inappropriate for me to give a response to that.
    Senator Feinstein. Senator Hatch?
    Senator Hatch. Well, thank you, Madam Chairman.
    Judge Pickering, earlier you were asked about the Swan 
case. We were all surprised to learn that you had not seen the 
documents that Senator Edwards asked you about, and I 
understand that the Department of Justice has just provided you 
with copies of those documents. Is that right?
    Judge Pickering. Yes, they did. I went over them. I scanned 
them. I didn't really have----
    Senator Hatch. In other words, since that----
    Judge Pickering. That is correct. Since then, I have viewed 
them very briefly.
    Senator Hatch. Well, now that you have had a chance to 
briefly look over those documents, let me just ask you a couple 
of questions.
    First, I would like to ask about your conversation with 
Assistant Attorney General Frank Hunger, reflected in one 
memorandum. What is your recollection of that conversation?
    Judge Pickering. My recollection is simply that Frank was a 
friend, that I----
    Senator Hatch. He is from Mississippi, isn't he?
    Judge Pickering. From Mississippi. We had been----
    Senator Hatch. So you knew him? You knew him before?
    Judge Pickering. I know him, and I stated a few moments 
ago, Senator, that that was an ex parte contact, and it was. I 
do not consider it to be an ex parte contact----
    Senator Hatch. Within the framework of the----
    Judge Pickering. The framework of the Judicial Code of 
Ethics.
    Senator Hatch. Well, he was not one of the attorneys 
assigned to the case, was he?
    Judge Pickering. That is correct. This was not his area of 
responsibility.
    Senator Hatch. And your conversation with him did not 
benefit the Government, did it?
    Judge Pickering. It didn't benefit either side.
    Senator Hatch. Well----
    Judge Pickering. It did not benefit the Government, no.
    Senator Hatch. What is all the hullabaloo about, then? The 
fact of the matter is I believe that judges talk to U.S. 
Attorneys all the time. They belong to the Justice Department. 
I believe they talk to people at Justice when they see 
injustices or inappropriate prosecution, and so forth.
    But the fact is that nobody benefited from that 
conversation.
    Judge Pickering. That is correct, no one.
    Senator Hatch. And certainly the Government didn't benefit 
from it. Is that right?
    Judge Pickering. That is correct. The Government did not--
--
    Senator Hatch. Do you have anything else you would care to 
say about that?
    Judge Pickering. Well, simply that it was, from the 
technical definition of ex parte contact--I called him and it 
was just the two of us that were talking, but again I do not 
consider that that was a violation of the rule.
    Senator Hatch. What was your outrage that you were talking 
about, that you talked to him about?
    Judge Pickering. The outrage was that the Government came 
in and, in my opinion, they pled the one that was most guilty 
and agreed to home confinement, and then they were recommending 
7\1/2\ years for this other young man. I think the crime, cross 
burning, is reprehensible and I think we have got to--and I 
stated on the record I have got no intention of not sending you 
to the penitentiary, and I sent him to a longer----
    Senator Hatch. Your concern was disproportionate 
sentencing?
    Judge Pickering. Yes, absolutely.
    Senator Hatch. That this fellow wasn't as guilty as the 
other two, and yet he got slammed?
    Judge Pickering. That is right.
    Senator Hatch. And he got slammed because he wouldn't plead 
guilty in advance?
    Judge Pickering. Well, the Government said that that is 
what they were interested in, was being able to 
administratively use this to get pleas. They had previously 
agreed to plead him guilty to a felony that would result in a 
sentence of about 15 months.
    Senator Hatch. I don't know whether you saw this Bob 
Herbert article in the New York Times today. It is called ``A 
Judge's Past.''
    Judge Pickering. Yes, Senator. I was trying to prepare for 
this and I didn't really want to read things of that nature. At 
the time, I did glance at it, but I didn't read----
    Senator Hatch. Well, I have to admit I think you have 
answers to everything he has raised in there. I think it is 
basically a very unfair, one-sided article. Normally, I think 
hopefully he does a better job, but let me go through a few of 
the things.
    Critics have alleged that in a 1959 law review article, you 
advocated expanding the law to provide for criminal penalties 
for interracial marriages, and that you advised the Mississippi 
Legislature how to amend their laws to continue penalizing 
interracial marriages.
    Now, Judge Pickering, I would like to ask you some 
questions about the miscegenation note that you authored while 
you were a law student at the University of Mississippi. You 
wrote that article at issue in 1959, more than 40 years ago, 
right?
    Judge Pickering. That is correct.
    Senator Hatch. Now, some have alleged in this article that 
you condemned Mississippi's miscegenation law. In the article, 
did you condone or advocate a ban on interracial marriage?
    Judge Pickering. No. My perception was that this was an 
academic exercise of analyzing the law. I stated what was wrong 
with it. I did not consider that I advocated it at all. But 
regardless of that article, I do not feel--and I have stated 
this at the third hearing--I agree that who one marries is a 
personal matter and States should not regulate it. That is a 
personal feeling. I believe it is unconstitutional and I will 
follow it.
    Senator Hatch. In 1967, the Supreme Court decided the case 
of Loving v. Virginia. You are familiar with that case----
    Judge Pickering. Yes, I am.
    Senator Hatch [continuing]. Which held that State law bans 
on interracial marriage are unconstitutional.
    Judge Pickering. That is correct.
    Senator Hatch. Now, if you are confirmed, will you strictly 
adhere to that precedent?
    Judge Pickering. Absolutely.
    Senator Hatch. I knew that was your answer, but I thought 
we had better clarify that.
    On the Voting Rights Act, Judge, your critics are the usual 
suspects in this town.
    And by the way, I didn't criticize any of my colleagues. It 
was criticizing the leftist groups who are here in Washington, 
who come into these matters almost every time they don't like 
somebody and I think distort records.
    Now, your critics would have people believe that you are 
singlehandedly bringing down the Voting Rights Act. I have 
looked at the cases that have been raised to suggest that you 
are against voting rights. I think there are three, to be 
fair--Fairley v. Forrest County, Bryant v. Lawrence County, and 
Citizens Rights to Vote v. Morgan.
    Your critics seem to have a penchant for misquoting you or 
quoting you out of context, but the thing that is most striking 
about questioning you on these cases is that none of them were 
appealed. Am I right on that?
    Judge Pickering. None of them were appealed.
    Senator Hatch. The usual suspects always seem to leave that 
information out of their statements. In fact, the plaintiff in 
Fairley and the NAACP chapter leader involved in that case have 
both written Chairman Leahy in support of your nomination. Is 
that right?
    Judge Pickering. Yes, sir, they have.
    Senator Hatch. They say, Judge, that you should always 
leave the customer satisfied. You seem to be leaving the losing 
party satisfied.
    Judge Pickering. In the Lawrence County case, I would point 
out, Senator, that that was a case in which I ordered 
redistricting to create a majority justice court district.
    Senator Hatch. Well, I was most interested in Bryant 
because I think in that case you displayed a genuine concern 
for racial reconciliation and a real desire to further the 
goals of the Voting Rights Act. You wrote that, quote, 
``Constitutional guarantees of equality should bring us 
together, not divide us,'' unquote.
    That is right, isn't it?
    Judge Pickering. After I heard the evidence, I also 
appointed a bi-racial Committee from the parties that were 
there, and they got together and tried to resolve the matters 
so that I didn't have to make a decision on the situation, so 
that they could work it out.
    Senator Hatch. Mr. Chairman, I would like to submit the 
rather exceptional letter of the plaintiff in the Fairly case, 
Mr. Donnie Lee Fairley, supporting Judge Pickering's 
nomination--I would like to put that in the record.
    The Chairman
    [Presiding.] Without objection, that will be made part of 
the record.
    Senator Hatch. Thank you, Mr. Chairman.
    Senator Hatch. Now, Judge Pickering, some have alleged that 
you are hostile to civil rights. However, I am aware that you 
have taken actions over the past four decades that express your 
commitment to civil rights. There is an old saying that actions 
speak louder than words, and I would like to ask you about some 
specific instances that illustrate your support for civil 
rights.
    You were chairman of the Mississippi Republican Party from 
1976 to 1978. In response to Senator Specter, you had mentioned 
that you were responsible for hiring the first African-American 
political worker ever in the Mississippi Republican Party.
    Judge Pickering. Yes, sir.
    Senator Hatch. In fact, the Committee has received a letter 
from this gentleman, whose name is James King, who appeared 
here today and I think is sitting right over here. In his 
letter, Mr. King explained that when you hired him, you were 
adamant that his work not be confined to the African-American 
population of the State.
    Mr. King stated, quote, ``Chairman Pickering could have 
enhanced his personal standing with the group by allowing us to 
believe that he agreed with our approach to targeting an 
African-American to the African-American community only. But 
instead he made the point of reminding us that the party's 
message was to be the same to both communities, and if the 
message was the same, it could be delivered by the same 
individual. I can unequivocally state from my personal 
knowledge and 25 years of knowing Judge Charles Pickering that 
he is not a racist, and I believe him to be eminently qualified 
for a seat on the Fifth Circuit.''
    Could you tell us a little bit about your decision to hire 
Mr. King?
    Judge Pickering. Well, I have always thought that the races 
should be brought together, not divided and not polarized, and 
there are so many things that do polarize us. I was attempting 
to build bridges and to give dialog to where African-Americans 
and whites could discuss their common problems and come to 
common consensus, and that was--I felt like it was the right 
thing for the Republican Party to do and----
    Senator Hatch. It was.
    I understand that in 2000 you joined with an African-
American businessman to convene a group in Laurel to develop a 
program for at-risk kids, particularly African-Americans.
    Judge Pickering. We did. I had supported the Boys and Girls 
Club during its existence, although I was not an officer in the 
group. They ran into some problems that caused the Boys and 
Girls Club to be terminated, and I had always regretted that. 
And Mr. Walker and I were having dinner together one night and 
we sort of made a commitment to one another that we would try 
to get some group together.
    We thought we were going to be bringing back a Boys and 
Girls Club, but we wound out where we worked trying to find 
something that we dubbed Kids at Risk rather than a Boys and 
Girls Club.
    Senator Hatch. Well, I notice that my time is up, but I 
want to commend you. You have from the American Bar Association 
a ``well qualified'' rating, which is the highest rating they 
give, by a majority of the Committee, and a ``qualified'' 
rating by the rest of them. And they do investigate rather 
thoroughly nominees before this Committee, and we expect them 
to.
    All I can say is that having looked at your record and 
knowing what you have stood for all these years, I just hope 
our colleagues will all recognize that and vote for you. I just 
want to commend you for being the good judge that you really 
are, and I think that you could do a great job on Fifth Circuit 
Court of Appeals and I believe you will do a great job and I 
believe you will be confirmed.
    Thank you, Mr. Chairman.
    Judge Pickering. Thank you, Senator.
    Chairman Leahy. I will just note for the record, Judge 
Pickering, I am glad that the Justice Department would give you 
those documents during our break. I had asked them to.
    Senator Hatch. Yes, I think that is right.
    Chairman Leahy. They only gave them to us. I wasn't sure 
whether Senator Hatch was aware of that. It was at my request, 
but we had only received them severely redacted just minutes 
before this. I assumed they had given them to you before. It is 
only fair that you should have them, and I am not quite sure 
why the Justice Department seems unwilling, even with the 
heavily redacted ones, to make them part of the permanent 
record.
    But I will ask them again if they could be made part of the 
permanent record. And if indeed they will agree to allow the 
heavily redacted material to be available, I assume there would 
be no objection then to making them part of the record.
    Senator Hatch. Mr. Chairman, I want to compliment you for 
that. Frankly, I appreciate the things you are trying to do.
    If I could just make one comment, that is why I went over 
this because, yes, it was an ex parte conversation, but you 
didn't consider it an ex parte conversation that violated the 
judicial canon, and certainly the Government did not benefit 
from it.
    Judge Pickering. Yes, that is correct.
    Senator Hatch. Neither party benefited from it. You were 
just expressing your frustration, and I have to say that I am 
aware of a lot of judges who have done that. I think some 
people may try and blow that out of proportion, but I don't 
think they should.
    Chairman Leahy. I don't know if there will be others who 
will be questioning, but let me just wrap up a few things of 
mine.
    In Washington v. Hargett, you rejected the plaintiff's 
request for DNA testing that he said would prove his actual 
innocence. But in that, you stated that an attempt to prove 
actual innocence was, quote, ``the only reason why this court 
or any other Federal court should be considering a petition for 
habeas corpus.''
    I mention that because you have stated in answer to my 
questions, Senator Hatch's questions, and several others that, 
of course, you would have to follow stare decisis, in your case 
the Fifth Circuit or the Supreme Court. I say that because your 
statement is contrary to the Supreme Court law and statutory 
law, which says that a prisoner petitioning for a writ of 
habeas corpus is contesting the legality of his detention, not 
his guilt or innocence. The Supreme Court said that 2 years 
before you decided that particular case. Based on the Herrera 
case, Federal habeas courts sit to ensure that individuals are 
not imprisoned in violation of the Constitution, not to correct 
errors of fact.
    In Drennon v. Hargett, you presided over a case in which a 
habeas corpus petitioner claimed that he had been denied access 
to the courts and received ineffective assistance of counsel. 
He had pled guilty to a charge of capital murder at the age of 
15 and received a life sentence. But he claimed in his petition 
that his attorney had threatened him with the gas chamber if he 
did not plead guilty, and his lawyer did not make important 
motions, such as a motion to suppress under Miranda, and so on. 
He also claimed that he did not know how to obtain relief in 
the courts for several years because his representatives had 
misled him.
    You denied his claim. You wrote 3 pages of a 9-page opinion 
arguing that habeas corpus should not be allowed unless a 
petitioner can prove actual innocence. You cited the Ninth and 
Tenth Amendments, the Preamble to the Constitution, and the 
Declaration of Independence in support of your views.
    In Barnes v. Mississippi Department of Corrections, you 
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 3 days before being given an initial 
hearing by a magistrate. You denied that petition, and the 
Fifth Circuit again overruled you.
    You stated in that case 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. 
You cited the Bible and Cook's treatise to make the point that 
habeas corpus should be limited to petitioners who can prove 
actual innocence.
    I cite that because it seems to go in each of those cases 
contrary to the Supreme Court, and that is why you were 
overruled. Have I missed the point there?
    Let me ask you this: What do you feel is the standard for 
granting habeas?
    Judge Pickering. Well, of course, the Congress has passed a 
law and they have established the standard by which we are to 
consider habeas. The decisions that you are quoting, I think, 
were all decided before Congress passed the law.
    And as I indicated, I think, Senator Leahy, that the 
statements that you mention--that I think that I said 10, 15 
years or 14 or 15 years after a trial is over, that it really 
creates all kind of problems on the system to have to go back 
and re-try cases, when the prosecutors might have changed, the 
law enforcement officers have changed, witnesses are dead. It 
just makes it almost impossible.
    And I think what I indicated that I felt it would be a 
better question, if it is that far out, that you should only be 
considering questions of guilt or innocence. Now, I did not say 
that I was going to apply that, and I think that I attempted to 
apply in those cases the law as I understood it from the 
courts. And, of course, since that time Congress has came down 
and said the statute of limitations is 1 year.
    Chairman Leahy. But in Hargett, you were talking about the 
only reason why this court or any other Federal court should be 
considering a petition for habeas corpus was for actual 
innocence. But that is not the Supreme Court----
    Judge Pickering. The Supreme Court decided it differently 
and I was acknowledging that it was sort of like----
    Chairman Leahy. Prior to that, prior to that.
    Judge Pickering. Yes, sir. Sort of like in ERISA, I was 
saying that I think this is an area where they should be 
limited to questions of innocence this far down the road. But I 
attempted to apply, as best I understood the law, the 
controlling law, not what I felt about the situation.
    Chairman Leahy. I appreciate that. I spent nearly 9 years 
as a prosecutor and the last thing in the world I wanted to do 
is have to re-try a case 10 years later----
    Judge Pickering. That was what I was talking about.
    The Chairman [continuing]. Because it was very, very 
difficult to do.
    Judge Pickering. Yes.
    Chairman Leahy. The witnesses are gone and everything else. 
But the thing I would hate even more than to have to try a case 
10 years later is to think I had somebody locked up who was 
innocent.
    Judge Pickering. Well, absolutely, and I said that. In 
fact, I would today--I don't care whether it passed the 1-year 
statute of limitation, if you had an innocent person. And I 
suspect that the courts when they get around to interpreting 
that 1-year statute of limitations, if you come with an actual 
innocence claim, that they will find some way to keep from 
being barred by the 1-year statute of limitations.
    Chairman Leahy. But there are other reasons for having 
habeas than just to prove actual innocence, are there not?
    Judge Pickering. Oh, sure, yes, sir. But what I was talking 
about was the length of time, 14 and 15 years later.
    Chairman Leahy. That was a DNA case, and DNA testing has 
exonerated nearly 100 people. Eleven people were on death row. 
They had been sentenced and they were way beyond the normal 
appellate time. They were sentenced to die, and then DNA 
evidence came out that had not been available and proved they 
had the wrong person.
    In Illinois, with something like half the people they had 
on death row, they found they had the wrong person. In one 
case, they had the right person locked up somewhere else, but 
they were about to execute the wrong person. I just mention 
that because it is an area that I was concerned about.
    Judge Pickering. Senator, on DNA, I feel very strongly that 
if you create a situation where there is an indication that DNA 
could likely prove somebody innocent that they should be given 
that opportunity.
    In the case that you are talking about, there was no--my 
recollection of that case is that I found there was no 
indication that--he was claiming an expert witness proved that 
he was likely not guilty, but that was not my interpretation of 
that expert witness' testimony. In fact, the expert witness 
seemed to me to implicate him more than he did to indicate that 
he was innocent.
    But I agree with you. DNA is a marvelous--and I had rather 
the guilty go free than having an innocent person convicted. I 
totally agree with that.
    Chairman Leahy. Thank you. Judge Pickering, you have been 
here a long time. As I said, the questions I have asked you 
have been on the cases that I notified the Justice Department I 
would be asking about.
    I do not feel, as some Senators on this Committee, that it 
is somehow inappropriate to ask a nominee questions, especially 
one who is already holding a lifetime position on the Federal 
bench, as you are, because of the nature of where you are 
going. I hope you don't think it has been inappropriate to ask 
you questions. I am sure the Chair will leave the record open 
so that you can take a look at your answers, should you wish to 
add to them or change them. We do want to be fair.
    I will not use all my time, Madam Chair, but I also want to 
mention I have been on this Committee now--I hate to even say 
this--for over a quarter of a century. Nobody has held a 
hearing with more fairness to both sides than you have, and I 
appreciate that.
    Senator Feinstein [presiding.] Thank you very much. Thank 
you, Mr. Chairman.
    Senator Kyl, you are next up.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Madam Chairman, I had no other questions. I 
would like, though, to comment on what Senator Leahy just said 
because he and I had a conversation about it earlier. In some 
comments I made earlier, I lamented the tone of questions. As 
the chairman of the Committee knows, I certainly don't think 
there is anything wrong with asking questions, and I think I 
made that clear in my comments. But I did have concern with the 
tone of some of the questions--neither of the two majority 
members who are here right now. But I hope that my comments 
aren't misunderstood in that regard.
    Thank you.
    Senator Feinstein. Thank you, Senator.
    Senator Sessions?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Madam Chairman. There were a 
number of things I think we just should mention. I know you are 
deeply concerned about the right to abortion, and deeply 
committed to the Roe v. Wade decision.
    A lot of people didn't agree at that time. The now-Minority 
Leader of the House of Representatives, Dick Gephardt, in 1976 
stated--when were you making these comments about a 
constitutional amendment?
    Judge Pickering. 1976, I believe.
    Senator Sessions. 1976. Well, in 1976 he said, ``In the 
case of an issue so basic to our society as the right to life, 
a constitutional amendment is necessary to clarify our belief 
in due process and the sanctity of life.'' His press release 
stated at that time that he would sponsor and work for a 
constitutional amendment to prohibit abortion. Al Gore wrote, 
``I strongly oppose Federal funding of abortions. It is my deep 
personal conviction that it is wrong.'' Others have said the 
same thing over the years.
    Certainly, favoring a constitutional amendment is not a 
suggestion that you don't follow the rule of law. That is the 
rule of law. If you disagree with a Supreme Court decision, if 
somebody thinks it is in error or should be corrected, you do 
it by a constitutional amendment, not by violating a Supreme 
Court ruling. Isn't that correct?
    Judge Pickering. Senator Sessions, I believe very strongly 
in the adage that we are a Government of laws, not of men, and 
I greatly respect the rule of law. If we don't do that, then 
there is no way, in my opinion, that we can render effective 
justice. We have got to follow the rule of law.
    Senator Sessions. In the comments, you were asked why you 
bothered to ask the Sovereignty Commission about the union 
violence there that had occurred in your neighborhood in a 
casual meeting, a chance meeting, it appeared.
    I would just offer this for the record. Charles Harrison, 
the first African-American hired in the Laurel, Mississippi 
Police Department in the 1960's, wrote in support of your 
nomination and said this, quote, ``Klansmen had committed 
violent acts, including murder, at the Masonite pulpwood plant. 
County Attorney Charles Pickering helped investigate the Klan 
and signed an affidavit to indict Dubie Lee, a Klansman, for a 
murder at that Masonite plant. Charles Pickering worked with 
the FBI to investigate and prosecute violent KKK members, and 
even testified against the Imperial Wizard of the KKK, Sam 
Bowers. He put his, his wife's, and his children's lives at 
risk by doing this. If any person would have mentioned union 
activity to me that affected Jones County, I would have asked 
about it, too, as would anyone who knew the violent history of 
unions at the Masonite plant. That would have had nothing to do 
with segregation. It would have had to do with protecting 
people, black and white, from violence. In the end, the 
Sovereignty Commission''--and I am quoting this letter from 
this African-American--``In the end, the Sovereignty Commission 
allegations only prove that Charles Pickering fought against 
the Klan and for the people of Jones County.''
    I think that pretty well says it all, and I know you would 
appreciate that being made a part of the record, which I will 
do.
    As a former United States Attorney, I think judges 
sometimes think they have a right to complain about 
prosecutors. They work for the Government. You hold United 
States Attorneys and Assistant United States Attorneys, most 
judges do, to a higher standard, don't you, Judge Pickering?
    Judge Pickering. I do.
    Senator Sessions. In my 12 years as United States Attorney, 
I have had a number of occasions when Federal judges say I 
think this assistant did the wrong thing; I think you were 
incorrect in this, or I don't know why you sought to bring that 
case. Maybe, technically, that is not the best way to do 
things, but it gets some feedback from the courtroom and I 
think in the long run it is helpful.
    I know you were concerned about this disparity of 
sentences, seeing a person who had fired in the house of this 
interracial couple with a gun. Let me ask you, did you know at 
the time that that person pled to a misdemeanor and probation, 
that he had fired a gun into the house?
    Judge Pickering. I did not, not at the time that the plea 
was taken.
    Senator Sessions. Did the Government attorneys know that at 
that time, or do you know?
    Judge Pickering. I am not sure whether they did or did not. 
I have reviewed some records that indicate to me that they 
should have.
    Senator Sessions. But it would strike me that it would be a 
colossal error and really a breach of ethics for a prosecutor 
to withhold that from a judge, as you evaluate what kind of a 
sentence to make, if they knew it at that time.
    Judge Pickering. Well, of course, I had that information at 
the time I did the sentencing. When I did not have it was when 
they took the plea.
    Senator Sessions. When you accepted the plea----
    Judge Pickering. Yes.
    Senator Sessions [continuing]. Under the recommendation?
    Judge Pickering. Well, the Government brought--they called, 
as I recall, and this has been several years back. It is 
difficult for me to remember what happened last month.
    Senator Sessions. I know.
    Judge Pickering. But this was at least 5 or 6 years ago. My 
recollection is the case was scheduled for trial and they 
called and said can we come down. And they came down fairly 
late one afternoon and said we want to have this defendant 
enter a plea of guilty. And they indicated the reasons why they 
thought it was an appropriate sentence--or appropriate plea, 
and I took it. That is my recollection.
    Senator Sessions. Well, I don't believe that----
    Judge Pickering. They did not mention that he had shot into 
the house before I took the plea, not to my recollection.
    Senator Sessions. Madam Chairman, I thank you for allowing 
Judge Pickering to have a chance to respond to these charges. I 
think he has responded to each and every one of them. I 
believe, as the five Mississippi people who came here with him 
on his behalf, three of whom are African-Americans prominent in 
their communities, they said he has been one of the good guys. 
They said from the beginning he has been on the right side. He 
has stood up when it was not popular against violence and 
against the Klan, and to have him now accused of misconduct is 
odd.
    One of the lawyers, a plaintiff's lawyer, said he is a 
populist judge, he is for the little man; he consistently rules 
for the little guy, and that is who I represent, he told me. 
Everybody knew he was a man of integrity. When he saw something 
in this cross burning case that didn't strike him as right, it 
offended his sense of right and wrong. And I believe Judge 
Pickering has a sense of right and wrong that is important in a 
judge to be successful. I just believe that his record is good 
on that.
    Judge Pickering, I know a lot of people have their children 
in private schools. Did your children go to public or private 
schools?
    Judge Pickering. My young daughters--the first year that 
they paired schools, which meant that they would be going to a 
majority-black school; it was a previously all-black school--
they went to the previously black school and that is where they 
got their education. We stayed with the public schools. We 
helped integrate the public schools. And as I have indicated, 
we had contact with African-American children and we encouraged 
our children to do that.
    Senator Sessions. Well, I think that is just another 
example of setting a good example in your community, of being 
the kind of community person that brought people together 
rather than setting them apart. I believe you deserve 
recognition and credit for that, for a really terrific career, 
and I thank you for your fine testimony.
    I think the problem at this point is not going to be with 
you, Judge Pickering. It is going to be with the people on this 
Committee. They will have to wrestle with their conscience, and 
I think if they don't allow the political hubbub to overcome 
good judgment, you will be in good shape.
    Thank you.
    Judge Pickering. Thank you, Senator.
    Senator Feinstein. Thank you, Senator.
    It has been a long afternoon, Judge Pickering, but the 
ranking member has prevailed on me to have a brief--how many 
seconds?
    Senator Hatch. Fairly short.
    Senator Feinstein. And admitting to his seniority and his 
perspicacity----
    Senator Hatch. And friendship.
    Senator Hatch [continuing]. And friendship----
    Senator Hatch. And care and love.
    Senator Feinstein. How about 120 seconds? That is 2 
minutes.
    Senator Hatch. Let me see what I can do. I don't think I 
can get it in 2 minutes, but I will try to be very short.
    I just wanted to close. I personally wanted to thank Madam 
Chairwoman for conducting a fair hearing. She is fair, and she 
is a decent and wonderful Senator as far as I am concerned and 
I have certainly appreciated having her on this Committee.
    Now, don't count that in my time.
    [Laughter.]
    Senator Hatch. I would just like to make the following 
observation, if I may. We have heard a lot today about Judge 
Pickering's record with respect to the Swan case and I would 
like to just make one closing comment on that. Basically, I 
want everybody here to listen to this and really hear this.
    You have already mentioned some of this in your earlier 
testimony, but I think it really is important. I would just 
like to read an excerpt of your comments during the sentencing 
phase of Mr. Swan's case. At the sentencing hearing on August 
15, 1994, you stated, quote, ``This is conduct that is 
reprehensible. It cannot, it will not be tolerated, and your 
views on racial or interracial marriages or those of anybody 
else involved is completely immaterial. You just cannot 
intimidate people in their homes,'' unquote.
    Then again at the November 15, 1994, sentencing hearing you 
described a cross burning as a, quote, ``heinous crime,'' 
unquote, and stated, quote, ``If you interpret it that I think 
it is all right to have prejudice that manifests itself in 
burning crosses, that is incorrect. I think it was just as 
reprehensible in the Lee case and I think it was reprehensible 
in this case, and I think the defendant has got to pay a debt 
to society for a reprehensible crime that he committed. And 
nobody made him get drunk and go do what he did that night. He 
did that,'' unquote.
    Then at the January 23, 1995, sentencing hearing you 
reiterated your position by saying, quote, ``You are going to 
the penitentiary because of what you did. And it is an area 
that we have got to stamp out, that we have got to learn to 
live races among each other. And the type of conduct that you 
exhibited cannot and will not be tolerated. You did that which 
does hinder good race relations and was a despicable act. I 
would suggest to you that during the time that you are in the 
prison that you do some reading on race relations and 
maintaining good race relations and how that can be done,'' 
unquote.
    I personally appreciate you and appreciate those comments. 
I know that that is what you truly believe, and I believe you 
will make a great judge.
    I want to thank our chairwoman here today for the excellent 
way she has conducted these hearings.
    Senator Feinstein. Thanks, Senator Hatch.
    We will keep the record open for additional questions or 
statements for 1 week.
    Judge Pickering, you are free to submit any material for 
the record that you would like to. In any way that you would 
wish to more fully address the questions, you certainly have 
that opportunity. I want to thank you and I want to thank 
everyone.
    This hearing is adjourned.
    Judge Pickering. Thank you, Madam Chairman.
    [Whereupon, at 6:35 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]
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Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of 
                                  Iowa

    I'd like to welcome Judge Pickering to the Judiciary Committee this 
afternoon. I just want to make a few comments.
    It's important that we have these hearings to make sure that the 
individuals that are confirmed to the federal bench are not just highly 
qualified, experienced legal minds. But we want to ensure that they 
will follow the rule of law--that is, the intent of the Constitution 
and the statutes ratified and enacted by the people--regardless of what 
their personal beliefs might be. We need to make sure that these 
individuals, lifetime appointments, clearly understand their role in 
the third branch of government, which is to interpret the law rather 
than create it. So we should ask questions of these nominees to 
determine that they will do just that.
    Now a number of groups have criticized Judge Pickering's record. 
But I'm not aware that any of these allegations have been 
substantiated. In fact, Judge Pickering has received a number of 
letters countering these allegations. There doesn't seem to be a 
dispute that Judge Pickering has been fine District Court judge. And 
remember, he's already successfully gone through the Senate review 
process once before. Unfortunately, I believe that some of these 
critics have a political agenda. they seem to be requesting us to use 
their own organizations' agendas as a litmus test as to whether 
Congress should vote to confirm or reject a judicial nominee. That's 
just plain wrong.
    Whether an individual has been nominated by a Democratic or 
Republican President, I've consistently applied the same criteria in my 
decision to vote for or against a nominee: does the individual have the 
requisite intellect, knowledge, integrity, judicial temperament and 
philosophy to serve on the federal bench? And most of all, will the 
nominee follow the law rather than legislate from the bench? I've 
followed this rule regardless of the judicial nominee's own beliefs. 
For example, a number of President Clinton's nominees served on 
associations and organizations, or had actively participated in 
litigation involving taking positions that I may not have agreed with. 
I voted to confirm the vast majority of those individuals because I 
believed that they could do the job, notwithstanding those positions or 
beliefs. I haven't allowed differences in one's own beliefs to be the 
litmus test in evaluating whether a judicial nomination should or 
should not be confirmed. Instead we should be confirmed. Instead we 
should be looking at the nominee's ability to follow and respect the 
rule of law. I'll continue to do that in regard to Judge Pickering. I 
hope my colleagues on this Committee will apply the same objective 
criteria.

                                

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