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

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

Mr. SCHUMER. I thank my colleague for yielding.

Mr. President, this is a difficult decision in a very certain sense. I listened to the sincere words of my colleague from Tennessee. I think they were heartfelt and well spoken. I have tremendous respect for my two colleagues from Mississippi, and I know particularly to my friend Senator Lott how much this means. He has worked very hard and diligently on behalf of Judge Pickering's nomination.

I must rise to oppose it, and let me explain both to my colleagues and to everybody, I guess, why. I am a patriot. I love America. My family came to this country 5, 3, and 2 generations ago, poor as church mice, discriminated against in Europe. My dad could not graduate from college, and I am a United States Senator. God bless America. What a great country.

I study the history of America. One of the things I try to study is what are our faults, what are our strengths, how do we make sure what happened to the Roman Empire and the British Empire does not happen to this country. One of the most profound scholars who studied America was Alexis de Tocqueville. He came to America in 1832 or so, traveled across the country, including upstate New York, and he wrote a couple of things. First, he wrote then when we were a small nation, not mighty like the great European nations of Britain, France, or Russia. He wrote that we would become the greatest country in the world. That was pretty omniscient. But he also wrote that there was one thing that could do America in, and that was the poison of race.

We have made great progress. We all know it and everybody knows it. Much of the progress was made-all of it just about-in the last 40 years. We did not make much progress from 1865 to, say, 1960 or 1955.

I guess Brown v. Board started the whole wellspring. Frankly, for the first time in my life I am optimistic about racial relations in America. I think, over time, things will heal. I didn't used to think that, even 5 years ago.

But we still have a lot of healing to do, despite the progress. I have to say I don't think the nomination of Judge Pickering-I know he is people's friend; I know lots of fine people think he is a fine man-helps that healing. I think it hurts it. I base my decision not only on his record, which-I would have to disagree, in all due respect, with my friend from Tennessee-on race issues is, at best, mixed. The cross-burning case bothers me greatly because if you are sensitive to race, even if you think a case was wrongly decided, you don't go through the extra legal means, on a cross-burning case, to do what you have to do.

Does that mean a person should be put in jail or excoriated? No. Does it mean if he runs for public office that he is going to lose? No.

But on the Fifth Circuit, the circuit that has had the great names at healing race and racial divisions that my colleague from Tennessee mentioned, should not we be extra careful about trying to bring a unifying figure to that bench, particularly when it represents more minorities than any other?

The bottom line is, while we can find individual names, to me it is overwhelmingly clear that the Black community in Mississippi-which ought to have pretty good judgment about who did what, when, and how far we have come-is quite overwhelmingly against Judge Pickering.

You can say it is politics. But when we hear the head of the NAACP say, as he told us yesterday, that every single chapter-I don't remember how many there were, like 140-were against Judge Pickering, that means something. When you hear that all but a handful of the Black elected officials in Mississippi are against Judge Pickering, that means something.

Frankly, in this body we don't have an African American to give voice to their view, the African American view, diverse as it is, about whether Judge Pickering is a healing figure and deserves to be on this exalted circuit. We are not demoting him. We are not excoriating him. We are debating whether he should be promoted to this important bench, particularly when it comes to race and civil rights. And the overwhelming voice is no.

I ask unanimous consent from my colleague to be given an additional 3 minutes.

Mr. LEAHY. I yield another 3 minutes to the distinguished Senator from New York.

The PRESIDING OFFICER (Mr. ENZI). The Senator from New York is recognized.

Mr. SCHUMER. So the overwhelming voice is no. The elected Black officials of Mississippi-I don't know the percentage, but I think it is against him. The only Black Member of Congress speaks strongly against him. He doesn't just say, well, I wouldn't vote for him, but it is an either/or situation, and that has to influence us. It is not dispositive. People can say "these groups." Well, the NAACP is not just a group. It has been the leading organization. It is a mainstream African-American organization.

There are groups on the other side lobbying for Judge Pickering. There are groups on this side against. I don't know why my colleagues, some on the other side, say the groups that lobby against what they want are evil, and the groups that lobby for are doing American justice. That is what groups do, and we listen to them sometimes.

I, from New York, don't know that much about this. I try to study history, but I haven't lived there. I haven't gone through the history that my colleagues from Mississippi or Tennessee have. But I have to rely on other voices as well.

So the fork in the road we come to here is this: On this nomination in this important circuit which has, indeed, done so much to move us forward-and I do believe we will continue to move forward as a country; even as Alexis de Toqueville said, on the poison of race-do we appoint a man who, on racial issues, has a record that at best is mixed, and who recently, at a very minimum, has shown insensitivity on the cross-burning case? Sure, there was a disparity of sentence. One thing I know quite well, in criminal law there are always disparities of sentence when there is a plea bargain, and prosecutors always go to someone in the case and say: If you plea bargain, you will get fewer years than if you don't. So that is not a great injustice. It happens every day in every court in this land. On this particular case, that is where Judge Pickering's heart was, to take it to a higher level. It is bothersome, particularly when it comes to nominating someone, not just to be a district court judge-which he is now-but nominated to the exalted Fifth Circuit, the racial healer in America for so long.

So in my view-no aspersions to my colleagues from Mississippi who feel so strongly about this; no aspersions to my colleague from Tennessee who was eloquent, in my opinion; and no aspersions to Judge Pickering as well-but we can do better, particularly on the Fifth Circuit, when it comes to the issue of race, which has plagued the regions of the Fifth Circuit and plagued my region as well. We can do better.

I urge this nomination be defeated.