Statement Of Senator Patrick Leahy
On The Nomination Of Charles Pickering
September 25, 2003

Today, the Republican majority has decided to place the nomination of Charles Pickering to the United States Court of Appeals for the Fifth Circuit on the Committee markup agenda.  After full and fair hearings, and full and fair debate, this Committee rejected that nomination to that same position last year.  We did so for good reason and we set forth those reasons during the course of our debate.  Despite the religious McCarthyism that ensued and the mischaracterizations of our actions for partisan political purposes by the Administration and others, the record shows that Judge Pickering was treated fairly by this Committee at that time.

Never in the history of this Republic has a President renominated to the same post a judicial nominee voted down by this Committee—never until this Administration chose to renominate Judge Pickering and Justice Owen this year.   Until this President, the Committee’s rejection of a judicial nominee on the merits was respected as a function of the Senate’s process of advice and consent.  When the Senate Judiciary Committee held hearings and took a vote and determined not to report a nominee, the Senate abided by that decision and every President until this one has, as well.

The President’s renomination of  Judge Pickering in January was itself controversial.  It followed the controversy that led to the resignation of the Republican Majority Leader and the White House’s designation of his successor. 

I was surprised to see this nomination added to the middle of the agenda we had for our meeting last week that was cancelled because of the hurricane that hit the area. I was relying on the Chairman’s previous statements about his intentions to proceed on the Pickering renomination, as extraordinary as it is, in the normal course and through regular order.  His appearance on the agenda today, on less than two days notice, came as something of a surprise.  Of course it was not a total surprise – the reporter from Fox News to whom the information was leaked did call to ask my office about it hours before any official notice was transmitted.

I am particularly sorry that the Republican majority has chosen this week to proceed because of the insensitivity it shows to the Congressional Black Caucus Foundation and to their strong and abiding opposition to this nomination.  The Congressional Black Caucus Foundation has its annual meetings this week and weekend.  The Honorable Bennie Thompson, a Representative from Mississippi, is a respected member of the Congressional Black Caucus Foundation and has opposed this nomination.  I know the Chairman to be sensitive to other members and know that he would not go out of his way to offend another Member of Congress, so I am left to wonder why this was added to the agenda in such haste and without consultation with me or others, and why Republicans are proceeding as they are.

Given the many concerns about Judge Pickering voiced by African-Americans in Mississippi and all over the country, including every one of the 160 chapters of the Mississippi NAACP, the Magnolia Bar Association and the Mississippi State Black Legislative Caucus, it was most ill-advised to abruptly list the nomination at the time that the Congressional Black Caucus Foundation is involved in its Annual Legislative Conference. 

In January of this year, at our first meeting, the Chairman expressed his clear intention of holding another hearing for Judge Pickering, not of moving him out of Committee without further consideration.  Specifically, he told us all that, “we . . . will have hearings in due course for Priscilla Owen and for Judge Pickering.” 

This certainly seemed to remain his plan through at least this past April, when he announced that, “I held a hearing for Priscilla Owen . . . and I am hopeful that we will do the same for Judge Pickering.”    Indeed, we have seen press accounts of elaborate preparations being made for another hearing.  Although we had discussed the need for additional hearings if Republicans intended to proceed earlier this year, I was not consulted before this alternative course was selected.   The Chairman, who certainly has wide-ranging discretion in these matters, has unilaterally decided not to hold a hearing for this extraordinary nomination.  I cannot help but wonder why not.

With the Owen nomination, Republicans contended that the record was misleading and needed to be corrected.  I disagreed and thought that the hearing chaired by Senator Feinstein was fair and thorough.  I think my view was borne out by the subsequent hearing held by Senator Hatch on that nomination earlier this year and by the tremendous opposition and controversy that nomination continues to generate. 

That raises the question, if the record before the Committee on the Pickering nomination was fair, adequate and sufficient, why proceed at all with this nomination.  It was based on that record that this Committee has already rejected the nomination. Unlike more than 50 of President Clinton’s nominees, Judge Pickering had the chance to come to the Committee, answer our questions and explain himself.  We debated the nomination in open session and we voted. His nomination was rejected.  If the record was not complete and if this Committee is being called upon to reconsider this nomination, something that was unprecedented until this year, why not schedule another hearing?  What is it about Judge Pickering’s record or background that my colleagues on the other side of the aisle, and their colleagues in the White House do not want to open to public scrutiny?  In the previous debate we have pointed out many examples of his injecting his personal views into his legal opinions.  We have shown the scores of times he has been reversed for repeating the same errors.  We have heard from him confirmation of his solicitation of support from those who appear before him and seen the opinions that these actions violate legal ethics.  We have looked carefully at his handling of a highly charged case of a convicted arsonist and hate criminal. 

What does seem certain is that suddenly listing Judge Pickering’s nomination for Committee action is a political ploy.  Whether or not the nomination survives a fight on the Senate floor, the political calculation must be that this move somehow benefits the Republican Party or certain Republican candidates.   If Republicans really wanted this nomination seriously considered, it would have been a subject of significant discussion before it was listed for action.  All the necessary paperwork would have been discussed and been in place.  We would have updated the nominee’s file and moved forward together.  As far as I know Judge Pickering was not even asked to update his nomination materials, he was not asked to submit the many unpublished opinions he has written since the time of his last consideration.  That did not happen here. 

Whatever the reason for this turnaround in strategy, the facts and my conclusions about Judge Pickering’s fitness for the appellate court have not changed and we have been given no basis on which to reconsider this matter. 

Given the unavailability of  Senators this morning who wish to be heard on this matter, it must be held over until another time under our rules.  I would hope that during that time, however long it takes, the nominee will at least provide the Committee with copies of unpublished opinions not previously furnished. 

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