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

EXECUTIVE SESSION

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

Ms. CANTWELL. Mr. President, Federal judges serve lifetime terms, and are responsible for interpreting our Constitution, and our laws, in ways that have real implications for the rights of regular Americans. Last year I joined my colleagues on the Judiciary Committee in voting not to report the nomination elevating Federal District Court Judge Charles Pickering to the Circuit Court of Appeals to the Senate floor. I stand by that vote. I continue to have very real concerns about Judge Pickering's ability to be a fair and neutral Court of Appeals judge.

In evaluating judicial nominations, among the factors I consider are whether the nominee demonstrates the highest level of professional ethics and integrity, and has the ability to distinguish between personal beliefs and interpreting the law. Unfortunately, I believe Judge Pickering falls short in meeting these criteria. Judge Pickering is an honorable person, but he is simply the wrong person to fill this very important position.

Like my colleagues, I am troubled by Judge Pickering's handling of the case of United States v. Swan, where a white defendant was tried for burning a cross on the lawn of an interracial couple. Judge Pickering had multiple ex parte conversations with prosecutors and Justice Department officials in an effort to reduce the sentence of Mr. Swan. In doing so, Judge Pickering seems to have lost sight of the ethical limitations on his actions, and the extent to which he was failing to maintain judicial independence. As Brenda Polkey, the victim of the cross burning, said, her "faith in the justice system was destroyed" by Pickering's efforts to reduce Mr. Swan's sentence. In every aspect of government we need to work hard and keep faith with the public.

This case indicates how deeply held Judge Pickering's views are, and how far he will go to arrive at an outcome he believes to be correct. The difficulty that he has in keeping his personal views out of his judicial decisionmaking are obvious, not only in this case, but in several opinions in which he goes beyond the facts of the case to state his belief of what the law ought to be. Judge Pickering's efforts to solicit letters of support from lawyers appearing before him in direct violation of the canons of judicial ethics is another example of his lack of understanding and adherence to the ethical guidelines that are critical to maintaining the independence and integrity of the Federal judiciary.

Because of this troubling record of not following precedent, and of overstepping ethical bounds to achieve a particular outcome, I asked Judge Pickering questions at his hearing that focused on the right to privacy. I asked Judge Pickering about privacy as it pertains to consumers' rights, specifically medical and financial records, as it pertains to an individual's right to privacy in the context of government surveillance, and with regard to a woman's right to make personal decisions about her body. In response, he declined to state whether he believed that any right to privacy was conferred by our Constitution.

While my concern about how Judge Pickering would rule on cases of fundamental privacy rights is not the only factor in my decision to oppose his elevation to the Circuit Court, it is one I believe is important.

The Fifth Circuit covers three States—Louisiana, Texas and Mississippi—that have passed more anti-choice legislation restricting a woman's right to make personal choices about her own body than any other States. In fact, all three States continue to have unconstitutional and unenforceable laws on their books prohibiting a woman from having an abortion, because the legislature in each of these States will not repeal the laws. This is the context against which we must consider the President's nomination of Judge Pickering.

While Judge Pickering has repeatedly pledged to restrain his personal ideological views and follow the precedent of the Supreme Court, given the unique role that the Fifth Circuit plays in protecting not only the constitutional right to privacy enunciated in Roe and affirmed in Casey, but also in protecting women's access to abortion providers in the States with the Fifth Circuit, I am concerned about Judge Pickering's willingness to say where in the Constitution privacy is protected and his willingness to follow the law.

Judge Pickering's actions on the bench reveal a lack of understanding of the requirements of judicial ethics and a failure to meet the very highest standards of the legal profession. Judge Pickering has exhibited a lack of ability to distinguish his personal believes from judging the issues before the court, and I therefore cannot support his elevation to the Fifth Circuit.