Outten & Golden: Empowering Employees in the Workplace

Charles Pickering is Back: Revived Battle to Stop His Nomination

September 30th, 2003 | Paula Brantner

This Thursday (10/2), the Senate Judiciary Committee is expected to again take up the nomination of Charles W. Pickering, Sr. for the 5th Circuit Court of Appeals. The move is likely to incite intense partisan debate over the propriety of resurrecting a nomination that was killed in the previous Congress by the Judiciary Committee, then controlled by a Democratic majority, along with Priscilla Owen, who was similarly renominated to the 5th Circuit. On Thursday, October 2, the Senate Judiciary Committee is expected to vote on Pickering’s nomination, even though several new senators have joined the Committee since Pickering’s previous hearing in 2002. If Pickering’s nomination is approved by the Committee, it will then move to the Senate floor, so please act now!

If Pickering squeaks through the Judiciary Committee this time, then the pressure will be on Democrats to mount a filibuster to stop Pickering’s nomination the way that Owen’s nomination has now been stalled for months. Pickering’s record shows a consistent opposition to efforts to remedy racial injustice, with indifference, and even outright hostility, toward those seeking to remedy perceived injustice, including workplace discrimination claims. Many questions have been raised about his ability to judge fairly and in a manner that is free of bias, as he displays a tendency to inject into his rulings his personal opinions and biases, raising serious questions about whether he is ruling based on personal views or on the dictates of the law. Judge Pickering also testified inaccurately in 2002 that federal courts almost never deal with valid employment discrimination cases, because almost all legitimate claims are settled through mediation.

Workplace Fairness urges you to oppose the nomination of Charles Pickering, Sr. for the following reasons:

In the vast majority of the published and unpublished civil rights cases available, Pickering ruled against civil rights plaintiffs. In the 17 summary judgment opinions reviewed (most of his civil rights cases are unpublished and unavailable), Judge Pickering ruled in favor of the employer on federal claims in all but three cases. At his hearing, Judge Pickering was asked about his record of strongly favoring defendants in employment cases. Incredibly, he defended his record by claiming that almost no employment discrimination cases that come before the federal courts have merit, because the meritorious ones are resolved by the Equal Employment Opportunity Commission. However, only a very small percentage of EEOC complaints result in successful mediations and the EEOC has very limited resources to initiate lawsuits on its own. Other cases have to be resolved by the federal courts through cases brought by the alleged victim of discrimination. Of course, if a federal judge wrongly believes that the employment cases over which he or she presides are automatically without merit, the victims of discrimination really have no redress at all.

Judge Pickering goes out of his way to disparage civil rights protections and plaintiffs. Judge Pickering’s decisions in employment cases appear to bear out the comments he made during his hearing. Although most of his employment discrimination opinions are unpublished, Judge Pickering has often gratuitously injected into his opinions a written lecture about plaintiffs who he believes should not be in federal court asserting civil rights claims. Typical of his comments: “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.”

(Seeley v. City of Hattiesburg; see also Johnson v. South Mississippi Home Health)

Judge Pickering refuses to follow procedural standards affecting plaintiffs in discrimination cases. In determining whether an employment discrimination claim is to be decided by a jury, Judge Pickering has frequently taken a narrow view of the evidence offered by the plaintiff, contrary to principles that require the evidence at this stage to be viewed in the light most favorable to the plaintiff. (Thornton v. Walker) Judge Pickering has also been unusually harsh with respect to sanctioning and threatening to sanction civil rights plaintiffs. For example, he awarded attorneys’ fees to a defendant in at least one employment discrimination case filed by an African-American registered nurse. (Johnson v. South Mississippi Home Health) It is questionable enough for a judge to refuse to allow a case to go to a jury that he describes as “fairly fact intensive,” but it is almost unheard of for a judge to award attorneys’ fees to a defendant in a fact-intensive case in which the plaintiff produced some supportive evidence, as federal law provides that a plaintiff has to pay a defendant’s attorneys’ fees only for “frivolous” cases.

Judge Pickering’s legal career is characterized by numerous instances of insensitivity to the rights of African Americans. As a law student, he published a law review article advising how Mississippi’s statute imposing criminal penalties for interracial marriages could be strengthened to make it fully enforceable. As a state senator, he cast several votes impeding the full extension of electoral opportunities to African-Americans. He also testified in 1990 that he had never had any contact with the state Sovereignty Commission, a notorious state-funded agency established after the Supreme Court’s landmark decision in Brown v. Board of Education to investigate civil rights advocates and block integration efforts—a statement flatly contradicted by Sovereignty Commission records, which indicate he had “requested to be advised of developments” regarding a Commission investigation. Both the Mississippi NAACP and the Congressional Black Caucus oppose Pickering’s nomination because of his “career and record on civil rights.”

The Fifth Circuit does not need any more extremists on race and discrimination issues. The Fifth Circuit, where Pickering would serve if confirmed, has one of the highest percentages (33%) of people of color of any circuit in the country, and in recent years has issued many of the most extreme civil rights rulings in the country, some of which have been reversed by a conservative U.S. Supreme Court.

Judge Pickering’s available opinions and testimony about his view of discrimination cases indicate hostility to plaintiffs who bring employment discrimination cases and an overwhelming tendency to decide matters of fact in favor of the defendant, often without hearings. Pickering’s view of employment discrimination cases seriously place in doubt his ability to maintain an open mind about these matters were he to be confirmed as a federal judge. Your voice is needed to help insure that your Senators look closely at Pickering’s anti-civil rights record.

Take Action Now: Stop Charles Pickering

More Information About Charles Pickering:

Statement Of Senator Patrick Leahy On The Nomination Of Charles Pickering

The Case against the Confirmation of Charles W. Pickering, Sr., to the U.S. Court of Appeals for the Fifth Circuit (Alliance for Justice report)

Judge Pickering, Again (New York Times editorial)

New Nominee Ploy by Hatch (Deseret Morning News article)

Pickering Fight Set for Round 2 in Senate Panel (Memphis Commercial Appeal column)

GOP Senators Ready to Start Fighting for Pickering Nomination Again (Associated Press article)

Panel expected to OK Pickering (Clarion-Ledger (MS) article)

(note: some information for this blog entry was provided by the Alliance for Justice.)

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