Saperstein and Heller: Judge Pickering's record raises serious concerns as to his ability to adjudicate fairly and impartially, a cornerstone of the American justice system.
Contact:Alexis Rice or Sheryl Shapiro 202-387-2800
Washington, October 2, 2003 - In response to the Senate Judiciary Committee's party-line approval of Charles W. Pickering Sr.'s re-nomination to the U.S. Court of Appeals for the Fifth Circuit today, Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism and Robert Heller, Chair of the Commission on Social Action of Reform Judaism, today called on the Senate to oppose Judge Pickering's confirmation. In a letter to all Senators, Saperstein and Heller expressed concern about the nominee's extremist record, and particularly his hostility toward civil and reproductive rights.
The complete text of the letter follows:
As you prepare to consider the nomination of Judge Charles Pickering to the United States Court of Appeals for the Fifth Circuit, we write on behalf of the Union of American Hebrew Congregations, encompassing 1.5 million Reform Jews in 900 congregations across North America, and the Central Conference of American Rabbis, composed of more than 1,800 rabbis, to express our continued, strong opposition to Judge Pickering's nomination.
Judge Pickering has been reversed by the Fifth Circuit 26 times, 15 of those in unpublished opinions, indicating that the Appellate court regarded their decision as based on well-settled law. More importantly, Judge Pickering's record raises serious concerns as to his ability to adjudicate fairly and impartially, a cornerstone of the American justice system. In particular, Judge Pickering's history on the bench includes several actions that seem to indicate a reluctance to protect the civil rights of all Americans.
Judge Pickering has been an outspoken critic of the "one-person, one-vote" principle outlined in our Constitution under the Fourteenth Amendment. He has called this principle "obtrusive," and pejoratively deemed it something that legislatures have learned they "must live with." "One-person, one-vote" is a bedrock principle of Constitutional law and is fundamental to our democracy. This principle, which calls for electoral districts to be near equal in population, guards against the creation of gerrymandered districts designed to deny individuals or groups equal representation. In Fairley v. Forrest County (1993), Judge Pickering wrote that a 25% deviation from equality was "relatively minor" and "would not violate the Constitution," despite Supreme Court precedent treating deviations greater than 16.4 as presumptively unconstitutional. Judge Pickering has also criticized plaintiffs for bringing voting rights cases before him, once saying that a case was "simply another of those cases which demonstrates that many citizens have come to view the federal courts as a potential solution to whatever problem comes along." We would have thought that the federal courts are precisely the right forum for adjudicating questions concerning voting rights violations.
Judge Pickering's record also reveals a bias against individuals bringing discrimination grievances to the court. He has been dismissive of those individuals who have brought race and age based employment discrimination cases before him. In two separate cases, he wrote that the case in question "has all the hallmarks of a case that is filed simply because an adverse employment decision was made in regard to a protected minority" and that the courts "are not super personnel managers charged with second guessing every employment decision made regarding minorities." These comments demonstrate a serious lack of regard for the role of anti-discrimination legislation in protecting individual rights.
Perhaps most troubling are Judge Pickering's actions in regards to a 1994 cross burning case that came before him. The case involved two men and a juvenile who burned a cross on the lawn of an interracial couple with a small child. The juvenile and one of the men pled guilty, while the third man was tried and convicted. Because he refused to accept a plea, the third man faced a harsher sentence under a mandatory minimum sentencing law passed by Congress for crimes involving arson. The other two individuals who took pleas received reduced sentences. Judge Pickering went to considerable lengths to convince the Justice Department to drop the charge involving the mandatory minimum and acquiesce to a lesser sentence. During his hearing before the Senate Judiciary Committee last year, it was revealed that Judge Pickering had threatened to order a new trial in the case (even though he had no authority to do so on his own motion), ordered Justice Department lawyers to take his complaints about the proposed sentence to the Attorney General, and even initiated an ex parte communication with a high-ranking Justice Department official to press his concerns.
Judge Pickering's actions in this case are extremely disconcerting. First, Judge Pickering's interactions with Justice Department attorneys were ethically questionable at best. Second, although Pickering has a reputation for tough sentencing, he went to great lengths to ensure a reduced sentence for a convicted perpetrator of a hate crime, demonstrating his lack of appreciation for this crime of racial terrorism. Cross-burning has historically been used to intimidate and threaten African-Americans; it is a loaded symbol that carries with it the legacy of racial violence in the United States. Members of the federal bench must recognize the gravity of such crimes; surely failure to recognize their gravity should disqualify a judge from being advanced to the Court of Appeals.
Jewish tradition teaches the necessity of fair and impartial courts. In Exodus 18:21, Moses' father-in-law, Jethro, advises him to choose capable, trustworthy, and law abiding members of society to judge the people. Elsewhere we are taught of the ethical obligation to oppose unjust persons and unfair judgments; judges should neither "favor the poor [n]or show deference to the rich." (Leviticus 19:15)
Judges at all levels must be committed to protecting civil rights and upholding our foundational principles of equality. These commitments are all the more crucial for a Court of Appeals judge granted a lifetime appointment. Judge Pickering's record leaves us with serious doubt as to his ability to safeguard the civil rights that we as a nation hold so dear. It is imperative to the functioning of our courts that every American walk into a federal courtroom believing that he or she will get a fair shake. We urge you to oppose the nomination of Judge Charles Pickering.
Rabbi David Saperstein
Director, Religious Action Center of Reform Judaism
Chair, Commission on Social Action of Reform Judaism
The Religious Action Center of Reform Judaism is the Washington office of the Union of American Hebrew Congregations (UAHC), whose over 900 congregations across North America encompass 1.5 million Reform Jews , and the Central Conference of American Rabbis(CCAR) whose membership includes over 1800 Reform rabbis .