Prayer

PRAYER

Mr. DeWINE. Mr. President, the nominees who President Bush have nominated are outstanding attorneys, people who would make fine judges and, frankly, the sooner we have an up-or-down vote on these nominees the better.

The nomination of these judges affects the citizens living in their judicial circuits and the nominees themselves. So this is not just a theoretical debate, this is a real world debate with real consequences.

Let me turn to one of those nominees, and that is Judge Charles Pickering. I want to talk about the merits because that is what we should be talking about, what we should be debating on the Senate floor, the merits of all these nominees. If we had an up-or-down vote, I say to the Members of the Senate, that is what we would be able to do. That is what this whole discussion for these 30 hours is about: our request to be able to vote on the merits.

Let me talk about the merits and what we would be able to talk about if we had that opportunity.

Judge Pickering, a man who graduated from the University of Mississippi with honors. This is a man who graduated from law school the first in his class; a man who has had a distinguished career as a lawyer; a prosecuting attorney; a judge who was confirmed unanimously by the Senate to a district court position 13 years ago.

What about the ABA? We always hear about the ABA. We don't think that should be the be-all and end-all, but the ABA should be a part of what we look to. Here is a letter ABA sent to me and other members of the Judiciary Committee:

Senator DeWine, We are transmitting to you for your consideration, this committee's evaluation pertaining to the nomination of the Honorable Charles Pickering, Sr., as judge of the United States Court of Appeals for the Fifth Circuit. I am pleased to report, as a result of our investigation, a substantial majority of the committee is of the opinion that the Honorable Charles W. Pickering, Sr., is well qualified for appointment as judge to the United States Court of Appeals for the Fifth Circuit.

That is what they had to say about him.

People who know Judge Pickering best in his home State of Mississippi also agree that he should be on the bench. People who have known him for years have written to this Congress and have talked with us and have said this man is qualified. This is a man of great character; he should be on the bench.

There have been attacks about Judge Pickering. Let me talk about these for a moment. Again, this is the type of discussion we should be having on the Senate floor. We shouldn't have to be down here making the argument that all we want is an up-or-down vote. This substantive argument is what we really should be able to have.

Let me talk about some of the attacks on Judge Pickering. At the time of our hearing on Judge Pickering, he had decided roughly 4,500 cases as a district court judge. Out of those 4,500 cases, he has been appealed 328 times and ultimately he was reversed or had the case remanded for additional work or some clarification in 26 cases.

Without getting too much into the numbers, I can tell you he has a good reversal rate-about 8 percent. That is better than the national average, and it is even better than the average in the Fifth Circuit.

Some of Judge Pickering's critics would argue the problem is not the number of cases on which he has been reversed. They say the problem is what you find in those reversals. Let's take a moment and look at that.

I looked at the 26 cases where he was reversed or where the case was sent back for further clarification. The statement was made in one of Judge Pickering's hearings several times that his cases boiled down to civil rights, voting rights, employment, and that is what was troubling. I think we need to look at each of these areas, and I will try to do that in the brief time I have.

There are a few ways to categorize a case and what type of case it is remains, certainly, in the eyes of the beholder, but I have looked at the reversals and the areas mentioned during the hearings, and this is how I break them down.

On my count, 2 of the 26 cases involve employee rights, 1 case involved voting rights, and 4 were civil rights cases. I believe as we look at these cases, there is no merit to the charges in regard to Judge Pickering.

Let's look first at the accusation of voting rights. Judge Pickering was reversed on one voting rights case, and that was Watkins v. Fordice. Judge Pickering was part of the three-judge panel that decided that case. Here is the key. We should be very clear about this. The voting rights issues in this case had already been resolved. The issue that went up for appeal was, guess what-Listen to this: attorneys fees. That is what the issue was. That is what went up on appeal.

So to categorize that as a voting rights case, that the judge was appealed on a voting rights case and overturned on a voting rights case is simply not fair. It is not fair by any good judgment.

When the case went up on appeal, the court of appeals said: We need more information. And they sent it back to Judge Pickering's three-judge panel. Judge Pickering and the other two judges gave them more information. It went back up, the court of appeals looked at it, and said: It's OK, you were right. We are not going to reverse you. And that ended it. That is the voting rights case about which everyone is talking.

I should also note for the record there were three other voting rights cases that Judge Pickering decided. Not one of these cases-not a single one-was reversed. In fact, nobody ever appealed the cases, which again tells us something. When a voting rights case is not appealed or when a major case is not appealed, it certainly tells us something.

So we end up on the voting rights issue with only one case where he was appealed, in that particular case it was about attorney's fees and, in the end, Judge Pickering was held to be correct anyway, and three other cases were not appealed at all.

Let me talk briefly about Judge Pickering and the civil rights cases. Every one of the civil rights cases-of the 26 cases we are talking about-every single one of them involved claims made by prisoners. I point that out not to say prisoners rights cases are unimportant; they certainly are important. We all know they are important. They can involve basic rights. But these are not the type of cases that we would normally associate, or at least the public would normally associate, as civil rights cases. Lawyers know them as civil rights cases, but I believe the general public would not think of them as typical civil rights cases. They were often procedural requests, sometimes requests for very specific relief.

For example, in one case, the whole issue was whether or not a prisoner had a right to use a certain type of typewriter. This prisoner wanted to use a memory typewriter instead of a regular typewriter, and that is what the substance of the case was about.

There were procedural issues there, and the court of appeals took a look at them. They were reversed, and we certainly understand that.

Again, I am not minimizing that, but I think we just need to put this whole case in its proper perspective.

Let me also note for the record that Judge Pickering was reversed, as we have said, in a total of 11 of the so-called prisoner cases out of an estimated 1,100 prisoner cases with which he dealt.

Let's now talk about Judge Pickering's employment cases. I will be very brief because I see my time is almost up. We need to look at both the employment cases, the Marshall case, and the Fairley case. In the Marshall case, Judge Pickering upheld an arbitrator's decision reinstating an employee who had been fired from her job. In the other case, the judge found on behalf of the worker suing his employer's disability plan for damages. In both cases, Judge Pickering ruled in favor of the employee.

The court said he was wrong about how he did it, wrong in the decision, and the court overturned him. But no one should use the employment case where he was overturned-these two cases-as in any way indicating that he is not sensitive to employees. He did, after all, in these two cases, rule in favor of the employees.

Judge Pickering is well-qualified. There is no doubt about it. His overall record as a judge is excellent. The specific cases cited as a concern do not show anything at all except that he is a human being who sometimes made some mistakes. I submit that virtually every district court judge that we look at and look at as carefully as we have looked at Judge Pickering, we would find similar reversals.

When we look at these specific cases, I believe there is no indication that Judge Pickering is hostile to civil rights, to voting rights, to employment rights, or any other type of rights. I believe there is no evidence at all that Judge Pickering substitutes his personal opinions for the law. In fact, the evidence shows that he clearly does follow the law.

Judge Pickering has testified under oath to the Judiciary Committee twice that he will follow the law and abide by the law, and Mr. President, his record shows that he will.

This is just an example of the debate that I think we ought to be having. If our colleagues across the aisle would allow us to have an up or down vote on these nominees, we could talk about the qualifications and criticisms of these nominees. We could talk about allegations and they could be supported or dispelled. There are many, allegations against these nominees that would be dispelled-just like the ones I've just discussed about Judge Pickering.

I encourage our colleagues to let us have the debate on the merits of the nominees. Then Senators can hear all the facts-both sides of the debate. And then they can make up their minds and vote-yes or no, just vote.

I thank the Chair. I yield the floor.