[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.

[[Page S1236]]



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