[Congressional Record Volume 148, Number 18 (Wednesday, February 27, 2002)]
[Senate]
[Pages S1233-S1236]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATIONS OF JUDGE CHARLES PICKERING AND JUDGE BROOKS SMITH
Mr. SPECTER. Madam President, I have sought recognition to announce
my support for the nomination of District Court Judge Charles Pickering
to the Court of Appeals and make some comments about the pending
nomination of Judge D. Brooks Smith, now
[[Page S1234]]
Chief Judge of the Western District of Pennsylvania for the Court of
Appeals for the Third Circuit, who had a hearing yesterday, and to
comment generally about the issues facing the Judiciary Committee on
partisanship.
Judge Pickering appeared before the Judiciary Committee. Prior to
that time, I had an opportunity to read his opinions, to meet with him
personally, to go over the issues, to study his record, and it is my
conclusion that if we were dealing with State Senator Charles Pickering
from the early 1970s, we would not confirm him for the Court of
Appeals. But dealing with Charles Pickering in the year 2002, based
upon his record today, he is worthy of confirmation.
In the early 1960s, it was a different world, as we all know. Prior
to the passage of the Civil Rights Act of 1964, prior to the passage of
the Voting Rights Act and the early days following the decision of the
Supreme Court in Brown v. Board of Education handed down in 1954, it
was a different world.
Judge Pickering has distinguished himself and has shown that he has a
sensitivity to civil rights issues. He spoke out against the leader of
the Ku Klux Klan in a way which was a threat to his personal security.
He has demonstrated in his conduct a sensitivity to racial matters.
There has been quite a divergence in opinion about Judge Pickering
based upon people inside the beltway, in Washington, contrasted with
the African Americans who know Judge Charles Pickering from his
hometown of Laurel, MS.
The pseudo-hearings which have been conducted on national television
and the comments in the national press from those who know Judge
Pickering from Mississippi portray a very different man than those who
oppose his nomination within the beltway.
In making that comparison, I raise no objection to the opinions of
the positions taken by people who have spoken out against Judge
Pickering. That is their right. But I do make a sharp distinction in
terms of the value of those opinions and the weight which ought to be
given to those opinions when you have people who know him so much
better on his home turf.
If we were to apply the standards which would have been applicable to
State Senator Charles Pickering in the early 1970s, it would be very
different. I cannot help but think of Senator Thurmond who ran for
President as a Dixiecrat in 1948 and who was a staunch opponent of many
of the civil rights issues. Senator Thurmond, as so many others, like
Charles Pickering, changed over the years and saw the evolution from
desegregation in Brown v. Board of Education in 1954 to a very
different era.
Senator Thurmond has enormous support among African Americans. I
mention him because he is someone known to everybody in the Senate,
having been here since 1954 and having established himself as very
sensitive and very pro-civil rights, but if he were to be judged on his
record from the early 1960s, as some are trying to judge then-State
Senator Charles Pickering on his record of the early 1970s, Senator
Thurmond would not be confirmed.
I can count the votes, Madam President, and it seems to me that,
regrettably, the Judiciary Committee is going to vote along party lines
and deny Judge Pickering an affirmative vote to bring his nomination to
the floor of the Senate. I may be wrong. I hope I am wrong. I do not
think I am wrong. It seems to me that whatever the vote for
confirmation is in the Judiciary Committee, Judge Pickering ought to
come to the full Senate.
Judge Bork and Judge Thomas--Judge Bork then a judge on the District
of Columbia Circuit Court--received a negative vote in the Senate
Judiciary Committee 9 to 5, but he was voted to the floor for full
consideration and ultimately did not prevail and was defeated 42 in
favor, 58 against.
Justice Thomas, then Judge Thomas, had a tie vote in the Judiciary
Committee but was voted out of the Judiciary Committee by a vote of 13
to 1 to be considered by the full Senate.
In the old days, the Judiciary Committee used to bottle up a lot of
civil rights legislation. It is my view that this is a matter which
ought to be considered by the full Senate.
Yesterday, we had the confirmation hearing of United States District
Court Judge D. Brooks Smith, who was recommended by Senator Heinz and
myself in 1988, appointed by President Reagan, and has had a very
distinguished record on the United States District Court for the
Western District of Pennsylvania where he now serves as chief judge.
Prior to that, he had been in the Court of Common Pleas in Blair
County, PA, and prior to that had been assistant district attorney.
Judge Smith was challenged on a number of grounds. People raised
questions about his reversal rate, but when that was examined, we found
that of the approximately 5,300 cases that Judge Smith had, about 10
percent of them were appealed, about 530 cases, and that his reversal
rate was right at 10 percent, which is right at the norm.
His reversal rate was higher in 1989, his first year as a federal
judge, in excess of 35 percent. As the years passed and as he gained
more experience, he brought that reversal rate down very substantially.
With the total number of cases, about 5,300, and something around 50
reversals, it is right at the 1 percent mark.
I ask unanimous consent that at the conclusion of this presentation
the text of the record of Judge Smith on reversals be printed in the
Record.
The PRESIDING OFFICER (Mrs. Murray). Without objection, it is so
ordered.
(See Exhibit No. 1.)
Mr. SPECTER. Judge Smith was further challenged on the issue of
conflict of interest when he sat on a case where a bank was a
depository, where he had stock or financial interest in the bank and
his wife was an employee but the bank was not a party. The trustee in
that case was Dick Thornburgh, formerly Governor of Pennsylvania and
also formerly Attorney General of the United States. Governor
Thornburgh wrote an op-ed piece for the Pittsburgh Post-Gazette
exonerating Judge Smith from any issue of conflict of interest, citing
Justice Donetta Ambrose who succeeded Judge Smith to handle that case
after Judge Smith recused himself.
I ask unanimous consent that at the conclusion of this statement the
op-ed piece by Governor Thornburgh be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit No. 2.)
Mr. SPECTER. Judge Smith was questioned at some length about trips he
had made to seminars, that there might have been an effort to influence
his decisions and that they were, in effect, junkets.
There is a famous expression that it does not lie in the mouth of
someone to say something, which really means that party has no standing
to raise the question.
I do not think that the Senate, or Senators, have standing to raise
questions about travel. I say that in the context of traveling myself,
and I think those travels are very worthwhile. And I have gone to
seminars, and I make the appropriate disclosure on my financial
statements.
The seminars that Judge Smith attended were entirely appropriate, and
he was challenged because he had not listed the value of those trips to
seminars. He stated that he thought he had complied with the law. Since
staff has checked out, it was found there was no requirement that the
value be listed.
It may be when we are talking about Judge Pickering and perhaps about
Judge Smith--and I feel confident Judge Smith will be acted upon
favorably by the Judiciary Committee, but one never knows--but in
looking at the proceedings as to Judge Pickering, this may be a warm-up
for the next Supreme Court nomination.
When Attorney General John Ashcroft was up for a confirmation
hearing, there was an undertone that where you have the issue of
choice, someone has to be willing to say they will support Roe v. Wade.
It really did not apply to the Attorney General's nomination itself but
as to his pro-life position, which then-Senator Ashcroft had
articulated, we knew his position. There was an undertone in the
hearing, and some on the Judiciary Committee have articulated a view
that there ought to be a litmus test, that nobody ought to be confirmed
unless that judicial nominee is prepared to say the nominee
would uphold Roe v. Wade.
[[Page S1235]]
When those issues have been posed in the past, the nominees have been
accorded standing to say they are not going to comment about cases
which may come before the Court. But there is what at least appears to
be an effort to put Roe v. Wade on a par with Brown v. Board of
Education. Doubtless it is true that no one could be confirmed to the
Supreme Court of the United States or to the Federal judiciary if they
said they would favor reversing Brown v. Board of Education and
integration. It is going to be a hotly contested issue, I believe.
Again, I may be wrong, but I do not think so, that some in the Senate
and some on the Judiciary Committee, and perhaps many others, are
trying to equate Roe v. Wade with Brown v. Board of Education.
We see the changing times on the issue of the death penalty for
people who have a mental impairment, with the Supreme Court saying they
are looking for a national consensus before changing the law. On the
evaluation of judicial decisions where the Court does look for an
evolving national consensus to establish the moral temper ofttimes,
with the Court's interpretations being very different on the equal
protection clause of Plessy v. Ferguson in 1896 compared to the
reversal of Brown v. Board of Education in 1954.
I do believe it is time for a truce between Republicans and Democrats
on this issue of judicial confirmations. I think we ought to declare a
truce and sign an armistice agreement that we are not going to have a
repetition of what happened when we had a Democrat in the White House
and Republicans in control of the Judiciary Committee. That was the
position I took at the time in breaking party ranks and voting to
confirm Judge Paez and Judge Marcia Berzon and in voting to confirm
Judge Roger Gregory for the Court of Appeals for the Fourth Circuit,
and in voting to confirm Bill Lan Lee for Assistant Attorney General of
the Civil Division. We ought to declare this truce and ought to sign
this armistice so we take partisan politics out of the confirmation
process of Federal judges. It is high time we did that.
I hope the confirmation proceeding as to Judge Charles Pickering
elevating him from the district court to the court of appeals will be a
good occasion for that truce, or that signing of an armistice.
I yield the floor.
Exhibit 1
Brooks Smith--Case Statistics
absolute numbers
Smith has closed 5,298 cases--of which 526 cases were
appealed to the Third Circuit.
Smith has been reversed 53 times over his 13 year career as
a federal judge (since 11/1/1988).
Note that in 12 of these 53 cases (i.e., about one-fourth
of the cases), Smith was affirmed in part and reversed in
part. And some of these were complex cases involving numerous
issues where he was affirmed on nearly all of the issues but
reversed on one ground or a few grounds.
percentages
Smith has been reversed in 10% of appealed cases (i.e., 53
of 526 cases).
He has been reversed in only 1% of closed cases (i.e., 53
of 5,298 cases).
comparison
Smith's 10% average reversal rate (in appealed cases) from
1989-2001 is similar to the average annual reversal rate for
the Third Circuit and for all circuits for appeals terminated
on the merits.
[Amount in percent]
------------------------------------------------------------------------
Third All
Smith Circuit circuits
------------------------------------------------------------------------
29.16 12.4 13.4
C
1990................................ 15.38 11.3 11.8
1991................................ 3.7 10.4 11.7
1992................................ 12.5 10.4 11.0
1993................................ 6.66 10.3 10.0
1994................................ 11.9 11.8 10.0
1995................................ 6.55 9.4 11.0
1996................................ 10 9.9 9.4
1997................................ 16.66 9.9 9.1
1998................................ 13.51 9.0 10.2
1999................................ 0 10.4 9.1
2000................................ 9.3 12.0 9.7
2001................................ 5.88 11.7 9.2
------------------------------------------------------------------------
Notes: None of the cases closed by Smith in 1988 were appealed. The
reversal rates for the Third Circuit and for all circuits were
obtained from the Administrative Office of the U.S. Courts; these
rates do not include data regarding the Federal Circuit.
Exhibit 2
[From the Pittsburgh Post-Gazette, February 26, 2002]
Setting the Record Straight on Judge D. Brooks Smith
(By Dick Thornburgh)
Washington.--Today the Senate Judiciary Committee will
consider President Bush's nomination of Chief U.S. District
Judge D. Brooks smith for the 3rd U.S. Circuit Court of
Appeals, headquartered in Philadelphia.
For 18 years, Judge Smith has served Pennsylvanians with
distinction. Judge Smith boasts first-rate credentials in
addition to his years of judicial experience, and the
American Bar Association unanimously gave him its highest
rating. Over 100 Democrats and Republicans alike have signed
letters of support to the Senate Judiciary Committee. These
letters from judges, public officials and leaders of civil
liberties, labor, and women's organizations all praise Judge
Smith's fairness and impartiality. The Post-Gazette has
detailed the campaign against Judge Smith by the Community
Rights Counsel and other extreme interest groups. Just as
night follows day, it seems the usual suspects are lining up
for another effort to ``Bork'' a distinguished judge.
Specifically, critics argue that Judge Smith should have
immediately recused himself from a 1997 municipal fraud case
involving an investment adviser later convicted of defrauding
several Pennsylvania school districts. Critics say recusal
was necessary as Judge Smith's wife worked at Mid-State Bank
where some of the defendants' assets were deposited, and the
Smiths held stock in Mid-State's parent company.
Please allow me to set the record straight. I served as the
trustee for the defrauded schools and bore a fiduciary duty
to safeguard their funds. And I can say with front-row,
firsthand knowledge that Judge Smith acted with absolute
integrity, independence and honor.
First, Mid-State Bank was not a party to the case, and
nothing at the outset suggested Mid-State was complicit in
any fraudulent scheme. It was therefore unlikely that Judge
Smith's wife, who worked in an unrelated part of the bank,
would become a material witness. Since the complint did not
allege any wrongdoing by the bank holding the defendants'
funds, any stock the Smiths owned in its parent company was
immaterial. As trustee, I had sole possession of and control
over the assets, and Judge Smith's initial order distributing
50 percent of frozen funds to defrauded school districts just
approved an interim plan proposed jointly by me and the
Securities and Exchange Commission while the case proceeded.
When Judge Smith later received information that Mid-State
could, in the future, conceivably play a role in the
litigation, out of an excess of caution he immediately
recused himself sua sponte, without being asked by either
party. The actions that Judge Smith took prior to his recusal
in the civil case did nothing to limit Mid--State's eventual
liability exposure or impact the victims' rights of recovery.
In fact, the attacks by interest groups ignore the fact
that no funds were even deposited at Mid-State at the time
Judge Smith granted his last orders. As trustee, I had
transferred the assets to another bank several days before
this order. Nothing that occurred between this order and
Judge Smith's recusal days later benefited Mid-State.
Judge Donetta Ambrose, who obtained the case after Judge
Smith's recusal, agreed. She wrote to the Senate Judiciary
Committee to say, ``There was never any suggestion by me
or the Court of Appeals that Judge Smith acted
inappropriately or unethically. Rather, he acted prudently
and cautiously. . . . The allegations of unethical conduct
in the context of this case are without foundation.''
Partisan critics also improperly fault Judge Smith for
temporarily handling a later criminal case against the
investment adviser. Nobody involved in the case has alleged
that Judge Smith issued any improper orders or took any
inappropriate action. The case was assigned to Judge Smith
only after lawyers in the case agreed that it was unrelated
to the SEC's civil case. Mid-State Bank was not a party. The
U.S. attorney's office never sought recusal, and defense
counsel did not seek recusal until four months later, when
Judge Smith immediately recused himself.
As governor of Pennsylvania in 1984, I had the honor of
originally nominating Brooks Smith to sit on the Court of
Common Pleas in Blair County. In 1988, while attorney general
of the United States, I had the honor of seeing the U.S.
Senate unanimously confirm Brooks Smith as a federal judge.
This year, I hope to see the same Senate set aside the recent
attacks of extreme interest groups and honor Judge Smith's
long record of judicial service with a swift and unanimous
approval to the 3rd Circuit.
By any measure of judicial merit, Brooks Smith is qualified
to serve. Like the president who nominated him, Brooks Smith
has rallied a broad coalition of support. It would be wrong
to allow extreme interest groups to delay his confirmation by
even one day. However, I am optimistic that this will not
occur. Judge Smith acquired his reputation for honesty,
uprightness and professionalism the old-fashioned way--he
earned it. And it will see him through.
Mr. SPECTER. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Madam President, I ask unanimous consent the order for the
quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
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