[Congressional Record Volume 148, Number 106 (Tuesday, July 30, 2002)]
[Senate]
[Pages S7551-S7564]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


    NOMINATION OF D. BROOKS SMITH TO BE UNITED STATES CIRCUIT JUDGE

  Mr. DASCHLE. Madam President, I now ask that the Senate proceed to 
executive session, as provided under the previous order.
  The PRESIDING OFFICER. The Senate will proceed to executive session, 
and the clerk will report the nomination.
  The assistant legislative clerk read the nomination of D. Brooks 
Smith, of Pennsylvania, to be United States Circuit Judge for the Third 
Circuit.
  The PRESIDING OFFICER. There are now 4 hours for debate, evenly 
divided between the chairman and ranking member.
  The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, it is with considerable pride that I 
urge my colleagues to vote to confirm a very distinguished Federal 
judge, D. Brooks Smith, now Chief Judge of the Western District of 
Pennsylvania, whose nomination is now before the Senate for the Court 
of Appeals for the Third Circuit.
  Judge Smith comes to this position with an outstanding academic 
background, having received his bachelor's degree from Franklin and 
Marshall College in 1973, his law degree from Dickinson Law School, and 
then engaged in the active practice of law for 8 years before becoming 
district attorney of Blair County, PA, a populous county whose county 
seat is Altoona.
  He then became a judge of the Court of Common Pleas of Blair County 
in 1984, serving for 4 years until he became a judge for the United 
States District Court for the Western District of Pennsylvania where he 
is now the chief judge, and for now almost 14 years has had very 
distinguished service there.
  I came to know Judge Smith when he appeared before the bipartisan 
nominating panel which had been established by Senator Heinz and 
myself, and I found him very well qualified and have known him on a 
continuing basis rather well over the course of the past 14 years. I 
have talked to him on many occasions and met with him on many 
occasions, discussing problems of the courts administratively, and 
issues that may come before the Judiciary Committee. He has been an 
outstanding jurist.
  Judge Smith enjoys a unique reputation among all of the people who 
know him. During his confirmation hearings, large groups of people who 
knew him rallied to his defense and came forward to attest to his 
erudition, his scholarship, his good character, and his judicial 
temperament.
  Certain issues have been raised which had delayed the confirmation. 
One involved a fishing club in which he was a member, but that club did 
not practice what is called invidious discrimination because it was a 
social club only. While in confirmation hearings for the district 
court, he had said he would resign from the club if they did not change 
their membership rules. It was later determined in 1992 in an opinion 
of precedential value that the club did not engage in invidious 
discrimination, so there was no reason for him to leave the club.
  An issue arose on a case, where he presided for a relatively brief 
period of time, as to whether there should have been an earlier 
recusal. The matter was inquired into, investigated at length by former 
Gov. Dick Thornburgh and former Attorney General of the United States, 
and in an elaborate statement, he went through the case in detail and 
found, as I concluded as well, that the judge had made a timely 
recusal.
  Some issues were also raised as to a speech which Judge Smith made on 
the Violence Against Women Act. He had concluded that there was not 
Federal jurisdiction for that particular statute.

[[Page S7552]]

  I, frankly, disagreed with him about his conclusion on that, as 
lawyers are wont to do, even lawyers who become judges or lawyers who 
become Senators. In fact, the Supreme Court of the United States 
ultimately agreed with Judge Smith on the point.
  I mention these issues in passing because I think they are not worth 
any more comment. The issues were considered at great length by the 
Judiciary Committee, and in a 12-to-7 vote, the Judiciary Committee 
recommended Judge Smith's confirmation.
  As is well known, Judge Smith's nomination came before the Judiciary 
Committee at a time of considerable controversy involving the timing 
and the confirmation of nominees submitted by President Bush.
  Senator Biden, Senator Kohl, and Senator Edwards all voted to confirm 
Judge Smith in an atmosphere where there was, to say the least, at 
least some element of partisanship.
  I only mention those issues. I think they do not bear any more 
comment than I have given them.
  When a man such as D. Brooks Smith undertakes public service in a 
Federal judgeship, I think it ought to be noted that there is a very 
considerable personal and financial sacrifice. I thank Judge Smith for 
serving on the Federal bench, and I thank all the Federal judges for 
serving on the Federal courts which are the pillars of justice and the 
pillars of our democratic society.
  Judge Smith has undergone a difficult period in this confirmation 
process which has taken quite a considerable period of time. I 
compliment him for his steadfastness and for his determination in 
staying the course and in working through on this confirmation.
  There is no doubt of Judge Smith's qualifications--his educational 
background, temperament, judicial experience, and experience being a 
district attorney. Judge Smith has a broad range of experience.
  The Third Circuit is in desperate need of judges. They are in an 
emergency situation. I ask unanimous consent that a letter from Chief 
Judge Edward R. Becker be printed in the Record at the conclusion of my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1)
  Mr. SPECTER. I am confident, based on my personal knowledge of Judge 
Smith and his outstanding record, that he will be a credit to the Court 
of Appeals for the Third Circuit.
  I thank my distinguished colleague from Utah and my distinguished 
colleague from Vermont for permitting me to speak at this time.

                               Exhibit 1

                                             U.S. Court of Appeals


                                        for the Third Circuit,

                                  Philadelphia, PA, July 15, 2002.
     Hon. Arlen Specter,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Specter: Because the exercise of my 
     responsibility to assure that efficient administration of 
     justice for over 21 million Americans within the Third 
     Judicial Circuit is being seriously impaired by the current 
     impasse in the Senate over judicial nominations, I feel 
     constrained to cry out. A total of eleven--yes eleven--judges 
     within the Third Circuit, whose presence is desperately 
     needed, would, I believe, have been confirmed and entered on 
     duty but for the impasse.
       Let me begin with the United States Court of Appeals for 
     the Third Circuit. But for the impasse, Judge D. Brooks Smith 
     would now be on my Court, which has three vacancies, two of 
     them of long standing. I have scheduled him to sit in the 
     early Fall, and we need him. We ``borrow'' judges in 45% of 
     our cases, which is too much. But that situation pales in 
     comparison with that of the District Court for the Western 
     District of Pennsylvania. There are five vacant judgeships on 
     that Court; as of September 30, 2002, these judgeships will 
     have been vacant for a total of 161.7 months. If it were not 
     for the impasse, the following judges would likely have 
     entered on duty: Joy Flowers Conti, who I understand has 
     resigned from her law firm partnership, anticipating a July 
     swearing-in-date (and is now without income); David S. 
     Cercone; Terrence F. McVerry; and Arthur J. Schwab. The 
     Western District is in desperate straits. Motions are piling 
     up, and trials are being delayed.
       Other courts within the Third Circuit are similarly 
     disadvantaged. Two nominees to the Middle District of 
     Pennsylvania are awaiting floor votes: John E. Jones, III and 
     Christopher C. Conner, both nominated to fill vacancies that 
     are well over a year old. Two nominees to the Eastern 
     District of Pennsylvania, one of the busiest courts in the 
     nation, are also being held up: Timothy J. Savage and James 
     Knoll Gardner. We also have problems in New Jersey where we 
     have five vacancies. Stanley R. Chesler and William J. 
     Martini are awaiting floor votes. There are also putative 
     nominees for the other three vacancies: Jose Linares, Freda 
     Wolfson, and Robert Kugler, whose progress is obviously being 
     slowed by the impasse. Their presence is needed there to take 
     up the slack caused by my assignment of Senior Judge Alfred 
     Wolin, who had a full docket, to handle the mega-asbestos 
     bankruptcy cases in Delaware, one of the nation's most 
     important judicial assignments.
       I have always respected the processes of the United States 
     Senate. I came to the bench from politics, and understand the 
     senatorial prerogatives. I have been tempted to speak out 
     before, yet because of my background, held back. But the 
     current impasse is too much even for me, hence this letter. 
     As a judge of over three decades of experience on the federal 
     bench, I understand the weighing and balancing process, and I 
     believe that it is out of all proportion to the exercise of 
     senatorial prerogative that these eleven nominees (and scores 
     of others) be held up so long. I urge you to press my plea 
     before your colleagues.
           Sincerely yours,
                                                 Edward R. Becker.

  The PRESIDING OFFICER (Mr. Durbin). The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I thank the Senator from Utah for 
yielding me some time, and I also thank the Senator from Vermont for 
allowing Senator Specter and I to speak first on this nominee.
  I, too, like Senator Specter, am very proud tonight to praise the 
nomination of Brooks Smith to the Third Circuit Court of Appeals and to 
congratulate the President on an excellent nominee. I certainly urge 
all of my colleagues on both sides of the aisle to vote for his 
confirmation. I truly hope they look at his record of 17 years of 
judicial service and experience on both the Federal and State level.
  He is someone of paramount integrity, someone who is obviously 
academically qualified, having been confirmed already as a Federal 
judge some 13 years ago. He has impeccable credentials academically and 
professionally prior to being a judge, and I think his service on both 
the trial court level and the common pleas court of Blair County, as 
well as on the Federal bench of the western district, now serving as 
chief judge of the western district, has been exemplary.
  He is someone who has been a model judge, someone who has steered a 
course, as most people who have described his nomination, right down 
the center, someone who follows the law and is very steadfast to what 
the role of a judge is, which is not to go out and make law but simply 
to serve in the capacity of meting out justice in a fair and equitable 
way that meets the expectations of the litigants. He has been highly 
praised by everyone.
  He has gotten a letter of support from almost the entire Pennsylvania 
congressional delegation, Democrats and Republicans alike. He has been 
rated well qualified by the ABA and highly recommended by the Allegheny 
County Bar Association, which is their highest rating. Allegheny County 
is the bar where the Western District of Pennsylvania is located. He 
has gotten support from every prior U.S. attorney from Jimmy Carter on 
through President Clinton's appointments to the U.S. attorney position 
in the western district. They have all come out in support of him.
  His colleagues on the statewide bench from the supreme court, 
superior court, on down, have written letters of support, both 
Republicans and Democrats alike, for his nomination.
  One of the most disturbing aspects of this nomination was what some 
on the far left-wing groups have done to try to impeach Judge Smith's 
integrity. Senator Specter reviewed the three things that have been 
brought up in a 17-year career. Probably the most outrageous of all of 
them is the fact that Judge Smith belonged--I know this might be 
shocking to some of my colleagues--to a sportsman club that only has 
male members. I know that none of my colleagues have ever heard of such 
a thing, but believe it or not most sportsman clubs in America, I would 
suggest, have limitations on memberships. If anyone is interested in 
the opposite, where sportsman clubs limit membership only to women, go 
to www.womensflyfishing.net, and they will find 60 organizations where 
only women are permitted to be members.
  At this particular club, the Spruce Creek Rod and Gun Club, only men 
are allowed to be members, but women certainly are allowed on the 
premises and

[[Page S7553]]

allowed to use the facilities. They simply cannot be members of the 
club.
  This club is a beautiful place. It is right in the heart of 
Pennsylvania. It has attracted many people from around the country 
because of its fabulous fly fishing. One such person who is an annual 
visitor, according to his own article on the subject, to this limited 
club is former President Jimmy Carter.

  Former President Jimmy Carter goes to this club to which Judge Smith 
used to belong. When President Carter was President, my colleagues may 
recall the incident when the rabbit attacked his boat. That was 
somewhat of a famous incident during the Carter Presidency. That 
happened at the Spruce Creek Rod and Gun Club. This is purely a social 
organization.
  When Judge Smith was before the Judiciary Committee, it was unclear 
whether he should continue to belong to such an organization. He was 
confirmed nonetheless. He promised at that time, when it was unclear 
whether that membership was unethical in some respects, that he would 
try to reverse the policy, and if he was unsuccessful he would resign. 
Subsequent to that, in 1992, the judicial code was changed and, as 
Senator Specter said, this kind of club does not fall into the ethical 
category of invidious. Therefore, as a result, he was not required 
under the judicial conduct code to resign.
  Nevertheless, he tried for several years. Every year at their 
meetings, he would try to have women allowed to become members, but he 
failed. Eventually, I think after 9 or 10 years, he decided he would 
give up that quest and leave. This was some 5 years ago.
  I understand there are a lot of women's groups that are complaining 
about this. To be candid, the complaint should be not that he resigned 
too late but that he is not still there trying to change it. That, to 
me, would be legitimate, to say he should have continued to stay there 
to try to get women as members. Instead, he gave up the fight, as some 
might suggest, and decided simply not to belong.
  I think they have sort of missed the point, and the point is--this is 
ridiculous is really the point. The point that he belonged to this club 
has nothing to do with his ability to be a jurist. Probably the worst 
aspect of this whole thing is it brought up this tenor that somehow 
Judge Smith was anti-woman. Well, we had the president of the NOW 
organization in his home county, Blair County, former Democratic county 
commissioner, come to the Senate, to the LBJ room. She did a press 
conference talking about how Judge Smith, when he was a common pleas 
court judge, did more to help her in her role as county commissioner 
than anybody else she met in county government, and that he had an 
excellent record in regard to violence on women, and a variety of other 
things, as he did as a common pleas court judge.
  Then later on, we heard from members of the women's bar association 
of western Pennsylvania going on at length about how Judge Smith was 
the best judge they had to deal with, who was the most respectful of 
women in the courtroom, most accepting of women in the courtroom.
  This is the most frustrating part for the judge, and I know Senator 
Specter commented how difficult a process this has been for him, to be 
attacked for things that are so spurious and tangential to this whole 
process, and trying to then frame them for something that he has worked 
all his life to prove that he was not. It was really unfair.
  Senator Specter went through the other two issues that have been 
highlighted. One is a case where he should have recused himself 
earlier. The trustee in the case, the former Attorney General and 
Governor, Richard Thornburgh, who said he would have been the aggrieved 
party in the case, as it turned out, said, no; that Judge Smith handled 
the case properly and forthrightly. The judge who eventually was 
assigned the case commented she would have handled the case in the 
precise manner Judge Smith handled the case. The Securities and 
Exchange Commission looked at this and stated Judge Smith did nothing 
improper.
  There is absolutely nothing there when it comes to these 
``improprieties'' of Judge Smith on the bench. This is reaching. This 
is trying to find a reason to oppose someone who has an impeccable 
record of service in the judicial community of western Pennsylvania, 
someone who has been outstanding in everything he has attempted. He is 
an incredibly well-qualified person for this position. He has done 
nothing but prove that his nomination for the Third Circuit is 
warranted.
  I am very hopeful that my colleagues again on both sides of the 
aisle--and I thank Senator Specter, Senator Edwards, Senator Kohl, and 
Senator Biden for their support of this nominee in committee--will be 
joined by many others on the other side of the aisle to confirm, as the 
ABA said, a well-qualified, very solid candidate, for the Third Circuit 
Court of Appeals.
  Mr. LEAHY. Mr. President, I yield myself such time as I may consume.
  I ask consent that following me, the Presiding Officer recognize the 
senior Senator from Utah; at 7:50 this evening, without using time from 
either side, the senior Senator from New Jersey be recognized for 10 
minutes; and then we revert back to whichever member of the Judiciary 
Committee sought recognition.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, the Senate is debating the nomination of D. 
Brooks Smith to the United States Court of Appeals for the Third 
Circuit. This, incidentally, is the 13th circuit court nominee to be 
considered by the Senate since the change in Senate majority and 
reorganization of the Judiciary Committee fewer than 13 months ago. 
That is an average of one court of appeals judge a month since the 
Democratic majority has been in place. That does set a record.
  We voted and confirmed three judges yesterday, one a circuit court of 
appeals judge. There are 10 other judicial nominees on the calendar. 
All have been approved on the Democratic side of the aisle. We have no 
objection to going forward with votes on them. I commend the Senator 
from South Dakota, the majority leader, Senator Daschle, who worked 
very hard to overcome the Republican objections so we can vote on 
President Bush's nominees to the judiciary.
  We set a record on the number of courts of appeals nominees who have 
been given hearings and votes. We have moved forward, including 
confirming one yesterday, and we will vote on another circuit court 
nominee tomorrow. That will be 13 in less than 13 months, plus more 
than 60 other judicial nominees for whom we have held hearings or on 
whom we have already voted. This seat on the Third Circuit is another 
example of the different ways in which the Republican majority and 
Democratic majority have proceeded.
  Today's debate is taking place in broad daylight. Under the 
Democratic majority, Judge Smith received a hearing less than 4 months 
after receipt of his ABA peer review. In contrast, Judge Cindrich was 
previously nominated for the same vacancy on the Third Circuit by 
President Clinton. He sat there for 10 months. You may wonder what 
happened at his hearing. He never got a hearing. You may wonder what 
happened on his vote. He never got a vote. He was never allowed a 
hearing; he was never allowed a vote. Four months after Judge Smith 
came up with his ABA papers, we had a hearing.

  This is one of the many court of appeals vacancies for which 
President Clinton nominated qualified and moderate nominees but the 
Republican majority would not allow a vote--neither a hearing nor a 
committee vote. Bonnie Campbell, Allen Snyder, and so many others--I am 
sure they have not been treated as fairly as Judge Smith's nomination.
  It is not enough to say some of the Republicans did not want those 
judicial nominees to be confirmed. I will vote against this nominee. I 
am the Chairman of the Committee. I could have refused to hold a 
hearing on Judge Smith. I could have refused to put his nomination on 
the calendar for a vote in our Committee. I did not. Even though, after 
the hearing, I made my up my mind to oppose this judge, I allowed the 
Committee to vote on his nomination and, if he got a majority vote in 
the Committee, allowed it to come to the Senate floor. That has always 
been the Democratic practice, and a practice that I follow.
  Every Senator, Democrat and Republican, will vote his or her 
conscience

[[Page S7554]]

about the merits of Judge Smith's promotion to the appellate bench. I 
do not question the conscience of any Senator in doing that. While the 
course charted by the Democratic Senate to improve the process and hold 
judicial nominees is an honorable, difficult and time-consuming course, 
it is a road not taken in many instances by the Republicans in the 
recent past.
  Some nominees, such as Judge Smith, are a portrait of contradiction. 
Those on the other side can extol his accomplishments and his 
popularity, but they omit his failings. They minimize his troubling 
record on ethical issues and his decisions as a judicial officer. Some, 
we heard tonight, may belittle the genuine concerns raised by many and 
shared by some Members of this Senate. I believe they are legitimate 
concerns.
  As I said, I could have refused to allow him to have a hearing. I 
could have refused to allow him to have a vote in the Committee. I did 
not. I do have genuine concerns.
  Some on the other side may try to castigate or caricature those who 
express opinions that are in opposition to the confirmation of a 
nominee. They may even choose to vilify those who dare to vote against 
a nominee who may be popular but who may be flawed in so many important 
respects. All of these contrasting views and accusations might cause an 
outside observer to wonder what exactly is the truth. The fundamental 
questions are whether this particular nominee should be confirmed, 
whether he should be promoted to a higher court, and whether his record 
of conduct on and off the bench warrants promotion. A lifetime 
appointment to review the decisions of other judges is not a right.
  With the Supreme Court hearing fewer than 100 cases per year, it is 
the circuit courts that are really the courts of last resort for 
thousands of cases each year. These cases affect the Constitution, as 
well as statutes intended by Congress to protect the rights of all 
Americans; for example, the right to equal protection of the laws, the 
right to privacy, as well as the best opportunity to have clean air and 
clean water, not only for ourselves but for our future generations.
  These courts are where Federal regulations will be upheld or 
overturned, where reproductive rights will be retained or lost, and 
where intrusive Government action will be allowed or curtailed. They 
are courts where thousands of individuals have their final appeal in 
matters affecting their financial future, their health, their lives, 
their liberty. I believe this record does not demonstrate that Judge D. 
Brooks Smith merits this promotion.
  In saying this, I mean no disrespect to the senior Senator from 
Pennsylvania, Mr. Specter, who strongly supported the confirmation of 
this nominee, nor disrespect to the nominee who is well-liked by many. 
I genuinely mean no harm to Judge Smith, no matter how we vote 
tomorrow. He has a lifetime appointment and a lifetime salary as a 
Federal judge. It is fair to say, however, that this nominee's record 
is problematic in a number of ways. Among my many concerns is the fact 
that Judge Smith's action creates an appearance that is too often 
beholden to special interests. The Federal courts are supposed to be an 
independent judiciary that is not beholden to anyone--the left, the 
right, or any economic interests. An independent judiciary is the 
people's bulwark against the loss of their freedom and rights.
  A number of judges and lawyers in Pennsylvania have written to the 
Senate to support Judge Smith's confirmation. A number of individuals 
and groups from Pennsylvania and elsewhere in the Third Circuit and 
throughout the country have written to the Senate, have called and e-
mailed our office to express their deep concerns about this nomination.
  We have heard from many Americans who are concerned about Judge 
Smith's record as a judge, including, incidentally, a resolution that 
was passed by the City Council of the City of Philadelphia. It was sent 
to us after the vote in the Judiciary Committee. It called for his 
nomination to be rejected.
  I am going to put in the Record at the end of my statement this City 
Council resolution, as well as the opinions of two ethics professors.
  I am disappointed that Judge Smith's record on and off the bench has 
resulted in this kind of controversy. As I reviewed his record as a 
judge, that record raised significant doubts in my mind as well.
  The issue for me is whether Judge Smith's record justifies this 
promotion from the lifetime Federal judgeship he now holds to the 
higher lifetime Federal judgeship. In this case, it is to a court that 
is only one step below the Supreme Court. Appellate judges in the 
circuit courts write opinions that become law, affecting all of us, 
whether we live in Pennsylvania, Utah, Vermont, or Illinois. I do not 
believe Judge Smith's record justifies this promotion.
  For one thing, he failed to keep his promise to resign from a 
discriminatory country club. Incidentally, that was not a promise that 
is something given in a political statement or to somebody in the press 
in response to an impromptu question. This was a promise Judge Smith 
made in a sworn statement before the Senate a few years ago. He 
belonged to a discriminatory club for more than a decade after he 
swore, after he took an oath, that he would quit if the rules were not 
changed to allow women to become members, in 1988.
  He stood there, he raised his right hand, he swore to tell the truth, 
and he told us that he would resign if women were not admitted by 1989. 
He did resign from this Spruce Creek Rod and Gun Club in 1999, 10 years 
later.
  What do you suppose was the thing that finally made him keep his 
word? A cynic would say that a vacancy had arisen on the court he 
wanted to be promoted to, and suddenly he thought: Wait a minute. I 
know I swore to resign by 1989--I had a lifetime judgeship and why do I 
have to resign from a club I like--but then suddenly, whoops, I might 
be promoted to even a higher Federal judgeship, maybe I better dust off 
that promise. I realize I am 10 years late, but better late than never.
  I find that extremely troubling.
  We had testimony by his supporters in letters that, well, the Spruce 
Creek is just a little fishing club, an itty-bitty fishing club of no 
consequence, kind of like a shack in the woods where a group of male 
friends might store their gear.
  It is not exactly an itty-bitty club. This here is the itty-bitty 
club.
  I have a little farmhouse in Vermont. My house probably would fit in 
the garage of this itty-bitty club. Look at this stately club. The 
Republicans may have missed one thing when they previously referred to 
this itty-bitty clubhouse, this inconsequential clubhouse as 
``rustic.'' Maybe they didn't realize that, because it is such a 
stately and important place, it is on the National Registry of Historic 
Places.
  I bet your home, Mr. Presiding Officer, is not on the National 
Registry of Historic Places. Mine is not on the National Registry of 
Historic Places. I will bet the senior Senator from Utah's home is not 
on the National Registry of Historic Places. But this little no-
consequence, little tiny fishing club, the itty-bitty fishing club, is 
on such a prestigious list.
  For nearly a century, this itty-bitty fishing club has been an 
exclusive recreational sportsmen's club that hosts its members and 
guests at its beautiful clubhouse. It has dining facilities. This itty-
bitty clubhouse has fireplaces. It has bedrooms for overnight guests. 
It is not just a little bend in the road; it sits on hundreds of acres 
of prime real estate.
  We can joke about it. It is obvious that Judge Smith and his 
supporters thought we would not actually go and find a picture of the 
club. I think they probably wish that we would not go back to his sworn 
testimony in which he promised to resign 10 years before he did. But 
let us be clear about what this is. The sports club--it does not make a 
difference whether the sport pursued is fishing or golfing. There are a 
number of women's fly fishing clubs attesting to the interest of women 
in that sport, and that is fine.
  If men want to go off and go fly fishing themselves, that is fine. If 
women want to go off and go fly fishing, that is fine. But when they 
have facilities to conduct business and when businesspeople go there to 
conduct business and that is how you may be able to get ahead in the 
business world if you exclude women from it, if you say, women, if you 
want to be in business, you are not going to be able to

[[Page S7555]]

join the moguls of the business or legal community here, then it is 
exclusionary.
  Women anglers who might have a fly fishing association could not walk 
into the Spruce Creek clubhouse. They could not fish in the stream 
called Spruce Creek that runs through the land owned by the club--
unless a man, who is a member, condescended to invite them.
  Frankly, it does not make any difference whether you exclude women or 
you exclude African Americans or you exclude people of particular 
religious faiths--it is still exclusion. That is why it is particularly 
troublesome that, when Judge Smith was up here the last time before the 
Senate seeking a lifetime appointment, he swore in sworn testimony to 
the Judiciary Committee and to the Senate of the United States that he 
would resign if he could not promptly get the club to change its 
exclusionary rules.
  Judge Smith did not resign within a year, or 2 years, as he had 
sworn. In fact, he did not resign within the time that the ethical 
rules that he was sworn to uphold as a judge required. He did not 
resign until 10 years later and then only when a new position on a 
higher court for someone from Western Pennsylvania opened up and he 
hoped to be appointed to it.
  There is no reasonable, logical explanation for why he waited for 
more than 10 years to follow through except that one: There is now a 
vacancy on a court that he wanted to go to, the Third Circuit from 
Western Pennsylvania. Claims that the ethical rules changed to allow 
his continued membership are groundless.
  The reason I stress this is that we have judicial nominations 
hearings, and the distinguished Senator from Utah, the distinguished 
Senator from Illinois, we have all sat in these hearings. You ask for 
certain commitments from judicial nominees because once they are 
confirmed they have a lifetime position.
  When a nominee comes before the Senate and makes a commitment, we 
must rely on his or her word to honor that the promise will be kept. 
With Federal judges that is especially true. Once confirmed, they have 
lifetime appointments. Impeachment is not a realistic way to enforce 
such commitments and, unlike Republicans in the House and Senate a few 
years ago, I have never suggested impeachment of Federal judges.
  If we allow such a promise, whether it is about club membership or 
some other issue, to be so flagrantly broken with no consequence, then 
promises and assurances to the United States Senate will mean very 
little. I think that is a bad precedent. I think that is a bad message 
to send to future nominees to the courts and to the executive branch: 
just tell us what we want to hear and then ignore those commitments 
without any consequence.
  I cannot think of another occasion in which a judicial nominee has 
promised to take specific actions and then been confirmed, after 
failing to keep his word. It is true that some judicial nominees have 
been confirmed after resigning from a discriminatory club, but none 
have ever been confirmed after telling the Senate that they would 
resign and then failing for years to do so. The closest analogy I 
recall is the failed nomination of Judge Kenneth Ryskamp to the 11th 
Circuit, because Judge Ryskamp was on notice that membership in 
discriminatory clubs was impermissible, but he continued his membership 
in a discriminatory club anyway.
  As a district court nominee of President Reagan in 1986, Judge 
Ryskamp admitted that he was then a member of the University Club, 
which had a rule against allowing women as members, and the Riviera 
Club, which had no race-specific membership rules, but which in 
practice had no Jewish or African American members. During his 1986 
hearing, Senator Simon asked Ryskamp if he thought he should resign 
from the University Club, and Ryskamp promised the Senate, ``I will 
resign from any club the Committee feels is inappropriate.'' In 1986, 
he was not asked specifically about the Riviera Club, which he later 
said he did not consider to be a discriminatory club. He subsequently 
resigned from the University Club, but not the Riviera Club.
  During his nomination by the first President Bush to the Eleventh 
Circuit, Judge Ryskamp's two-decade long membership in the Riviera Club 
was questioned extensively. For example, Senator Kennedy noted that the 
fact that the Senate had not specifically asked Judge Ryskamp to resign 
from the Riviera Club did not lessen his responsibility to follow the 
ethical rules anyway and resign. I recall that Judge Ryskamp told me 
that he resigned shortly before his confirmation hearing in March 1991 
because his continued membership created the appearance of impropriety, 
not because, in his view, the Club discriminated. In April 1992, the 
motion to report favorably Judge Ryskamp's circuit nomination to the 
floor was defeated. The subsequent motion to send the nomination to the 
floor without recommendation also failed.
  Unlike Judge Smith, Judge Ryskamp never promised to resign from the 
club at issue, although several Senators believed Judge Ryskamp should 
have done so following his first confirmation. I think it only 
reasonable that Judge Smith's conduct regarding his previous promise to 
the Senate would lead a reasonable person to doubt the sincerity of his 
assurances to the Senate this year in other areas, as well.
  Breaking a promise to the Senate, or misleading the Senate into 
believing that certain action would be taken, is an independent yet 
unusually strong reason for the rejection of a judicial nominee. I do 
not think Judge Smith should be given a promotion after failing to keep 
his word to the Senate. If his statements to the Senate in 1988 were 
not promises, then he most assuredly misled the Senate into believing 
he was going to resign, and he did not do so within any period that can 
be considered reasonable. On this basis alone, I feel I must vote 
against Judge Smith's confirmation to the Third Circuit.
  Spruce Creek invidiously discriminates against women. Prior to his 
nomination to be promoted to the Third Circuit, Judge Smith never 
informed the Senate that he did not have to keep his promise to the 
Senate. He acknowledged in both his 1988 and 2001 Senate Questionnaires 
that the Club violated the ethical rules against judges belonging to 
clubs that engage in invidious discrimination. In fact, when Judge 
Smith finally resigned from the Club in December of 1999, he told the 
Club's president that the Club's men-only membership rules ``continue 
to be at odds with current expectations of Federal judicial conduct.'' 
It is only now that questions have been raised about his very late 
resignation does he belatedly assert for the first time that the Club 
is ``purely social'' and so the rules against discriminatory club 
membership do not apply. The exception he seeks to create would swallow 
the rule. His statements on this point really give me pause with 
respect to how Judge Smith would follow the law as an appellate judge 
or whether he would seek to bend it to his personal purposes. Public 
officials should not have to be told, repeatedly, not to belong to 
clubs that discriminate.

  We have received a letter from Professor Stephen Gillers, the Vice 
Dean of the New York University School of Law, observing that the 
ethical rules against discriminatory club membership do not apply to 
purely private social clubs that do not allow business or professional 
meetings. However, both Professor Gillers and Professor Monroe 
Friedman, a distinguished ethics scholar, have noted that if club 
members can or do sponsor events or meetings at the club that are 
business or professionally related then the club cannot be called 
purely private and the club's discrimination against membership for 
women is ``invidious'' within the meaning of the Code of Conduct's 
prohibitions. This is true even if women are allowed, by the men who 
belong to the club, to attend some or all business and professional 
meetings hosted by the club's members.
  I understand that, in fact, Spruce Creek has always allowed members 
to host business and professional meetings at its facilities. We know 
that members have hosted business meetings and gatherings of their 
professional colleagues at the Club. The President of the Club, who has 
been a member for decades, told Senate staff that members can use Club 
facilities for any meetings or occasions they want, without any 
oversight, but he refused to discuss the specific ways the

[[Page S7556]]

Club is used by members for business meetings.
  We also know that the Club's constitution and by-laws do not 
discourage the members from hosting business, professional or political 
meetings at the Club. Women, regardless of their standing in the 
community or in their profession, cannot invite their colleagues to 
Spruce Creek for business meetings because they are explicitly and 
intentionally excluded from membership.
  Additionally, according to Professor Gillers, Judge Smith had an 
obligation to make sure that the Club maintained a purely social 
purpose, if he was going to claim that his membership was exempt from 
the ethical rules. He could not merely assume that it did. There is no 
``don't ask, don't tell'' exception to the ethical rules. Given his 
previous assurances to the Senate and his own admissions up to and 
including his resignation in 1999, he can hardly assert that the Club 
is ``purely social'' now, as an after-the-fact justification for his 
conduct. He has made no showing in support of this belated contention.
  Professor Gillers' view of this obligation to inquire is consistent 
with the guidance in the Judicial Conference's Compendium to the Code 
of Conduct for United States Judges. Judge Smith also did not follow 
the Compendium's advice regularly to re-evaluate club membership 
policies and practices. Judge Smith also did not seek an ethics opinion 
from his fellow Federal judges about whether the rules against 
discriminatory club membership somehow exempted this Club to which he 
so badly wanted to belong.
  Judge Smith now says that he did not seek an ethics opinion because 
it was so clear to him that the ethics rules did not apply to this Club 
after amendments in 1992 that supposedly let him off the hook. This is 
another implausible and self-serving assertion. As Professor Gillers 
noted, the 1992 amendments to the Code of Conduct for United States 
Judges without a doubt strengthened the prohibition against 
discriminatory club membership by adopting the language of the ABA code 
referred to in the Senate Questionnaire that Judge Smith promised to 
follow when he swore to the Senate that he would resign. The only 
significant difference is that the rule Judge Smith promised to follow 
in 1988 allowed judges one year to get discriminatory rules changed or 
resign, while the 1992 rule gave judges up to two years, from learning 
of discrimination according to the Code's new, tougher rules, to change 
the club's practices or resign. Yet, Judge Smith did not resign in 
1989, 1990, 1991, 1992, 1993, or 1994. He did not resign until a chance 
for a higher position in the Federal courts became available in 1999.
  I recall that more than a decade ago the Senate Judiciary Committee 
considered this issue at length. There was testimony from women and men 
from across the country describing the impact of discriminatory private 
clubs on the women and people of color excluded. From time to time, I 
suppose, reminders of these lessons are necessary.
  In 1990, 2 years after Judge Smith was confirmed and promised the 
Senate that he would resign from the mens-only Spruce Creek Club, the 
Senate Judiciary Committee passed a sense of the Committee resolution 
on the issue of discriminatory clubs. The resolution stated that 
discrimination at clubs where business is conducted and which 
intentionally exclude women and minorities is ``invidious'' and 
``conflicts with the appearance of impartiality required of persons who 
may serve in the federal judiciary.'' The Committee's resolution that 
was adopted on August 2, 1990, provides a bright-line rule for public 
officials. It defines the clubs at issue as those where members bring 
business clients or professional associates to the club for 
conferences, meetings, meals, or use of the facilities. Spruce Creek 
meets this definition. It is also obviously a place where contacts 
valuable for business purposes, employment and professional advancement 
are formed. The Club, by arbitrarily and intentionally excluding women 
from membership, practices invidious discrimination as defined by the 
Senate Judiciary Committee. Public officials should not have to be told 
repeatedly not to belong to clubs that discriminate.

  All judges, no matter how popular, have a solemn obligation to 
``avoid the appearance of impropriety in all activities,'' under both 
the Judicial Conference's Code of Conduct for United States Judges and 
the ABA's model code. That is because, in the words of those codes, 
``Public confidence in the judiciary is eroded by irresponsible or 
improper conduct by judges. A judge must avoid all impropriety and 
appearance of impropriety. A judge must expect to be the subject of 
constant public scrutiny. A judge must therefore accept restrictions on 
the judge's conduct that might be viewed as burdensome by the ordinary 
citizen and should do so freely and willingly.''
  This prohibition applies ``to both the professional and personal 
conduct of a judge.'' The Judiciary Committee's club resolution 
similarly sets a high standard of conduct for Federal judges in their 
personal conduct with regard to club memberships and association. Judge 
Smith has failed in those obligations. He may very well be a nice 
person and courteous to women litigants in his courtroom, but that does 
not excuse him from following the ethical rules that govern his conduct 
as a lifetime appointee to the Federal courts. Ethical rules apply to 
all judges equally, regardless of popularity.
  Judge Smith had an obligation to resign from the Spruce Creek Rod and 
Gun Club, both by virtue of his promise to the Senate and because of 
his responsibilities under the ethical codes, and he failed to do so in 
a timely fashion. His conduct should not be rewarded with a promotion.
  I would also like to set the record straight on one final related 
point. Supporters of Judge Smith have referenced President Jimmy Carter 
visiting the Club. According to Carter's memoirs, however, one time in 
the late 1970s President Carter and the First Lady were invited by the 
``Spruce Creek Hunting and Fishing Club for a day of fishing on a 
portion of their leased stream.'' That day, they met the man who 
actually owned that parcel of land and thereafter they visited and 
stayed at his farm, not the Club. The chapter in his book called 
``Spruce Creek'' relates to the creek, not the Club. There is no 
evidence that President Carter has ever endorsed the Club's 
intentional, invidious discrimination against women.
  Judge Smith failed to recuse himself promptly from conflicts of 
interest. I am also concerned about Judge Smith's late recusal, or 
disqualification, in two cases involving his substantial financial 
investments. According to two distinguished professors of legal ethics, 
Professor Gillers and Professor Friedman, Judge Smith also violated 
ethical rules due to his late recusal from the Black cases, a 1997 
investment fraud case and a related 1999 criminal case. This is because 
it is undisputably true that Judge Smith and his wife had substantial 
investments (valued at between $200,000 and $500,000 together) in the 
bank or holding company that faced significant financial liability in 
those cases and because his wife also worked at the bank.
  In one of those cases, Judge Smith waited five months to recuse 
himself. In the other case, he waited about a week to recuse himself 
after realizing that the bank was involved, but he issued significant 
orders in the intervening period. In both cases, Judge Smith revealed 
only his wife's employment at the bank to the lawyers in the cases. He 
never disclosed their substantial financial investments to the lawyers 
in either the civil or the criminal case. Judge Smith contends that he 
was not required to recuse himself but did so only in ``an abundance of 
caution.'' He also contends, basically, that nobody was harmed by his 
late recusal.
  In the opinions of two ethics experts, however, Judge Smith was 
required to recuse himself from any case in which the judge or his 
spouse has any interest that could be substantially affected by the 
outcome of the case, in accordance with the rules passed by Congress in 
28 U.S.C. Sec.  455 (a) and (b) (4), and with cases of the Supreme 
Court and Third Circuit. These rules against conflicts of interest, 
which are intended ``to avoid even the appearance of partiality,'' are 
largely self-enforcing. Parties may not know that a judge has 
substantial financial investments affected by the case and may not move 
to disqualify a judge unless the judge fully discloses such 
information. Judge Smith, again reading ethical rules narrowly, did not

[[Page S7557]]

do so. Such facts do not give one confidence in his conduct on the 
bench.
  I do think this Senate should take seriously a lifetime appointee's 
failure to follow ethical rules, in this area and others, such as 
discriminatory club membership. It is problematic to confirm someone to 
the Court of Appeals who would read the ethical obligations so 
narrowly. This is especially so because, under the structure of the 
Federal courts, it is the circuit court judges who preside over ethics 
complaints against lower federal judges. I do not think those who read 
such rules narrowly should be elevated and given that special 
responsibility.

  Judge Smith's remarks as a Federal District Court judge: Another 
troubling area is Judge Smith's insensitive and activist speeches. A 
number of these remarks call into question Judge Smith's judgment and 
fairness. For example, as a sitting federal judge he has given speeches 
in which he calls ``legal spam'' cases that affect the rights of 
ordinary Americans, such as cases involving their financial security, 
social security appeals, pension plan collection cases, and bankruptcy 
appeals. Such a characterization is shocking for its insensitivity to 
the importance of such cases to the individuals seeking a fair hearing 
of their claims in federal court. It calls into question how seriously 
Judge Smith has taken his oath as judge to administer justice to all 
persons equally and to ``do equal right to the poor and to the rich.''
  Judge Smith also spoke out in favor of parties being required to pay 
each other's costs in responding to discovery requests. That idea--like 
the idea of requiring the loser in a case to pay the winner's expenses, 
which he also endorsed has been widely rejected because it would impose 
significant financial burdens on individuals suing corporations, for 
example, for personal injuries caused by a defective product. Such a 
rule could make it impossible for individuals to pursue legitimate 
grievances for which Congress has provided a federal court forum.
  Another concern is Judge Smith's speeches to conservative ideological 
groups in which he basically gives advisory opinions about the 
constitutionality of federal statutes. For example, in 1993, as a 
sitting judge, he gave a far-reaching speech to the Federalist Society 
in which he advised the audience that the proposed Violence Against 
Women Act (VAWA) was unconstitutional. He said this landmark 
legislation could not be justified as within the power of the federal 
government. He was also very critical of Congress's extensive findings 
of fact in VAWA, calling them a ``promiscuous invocation of the 
Commerce Clause.'' This lack of deference and respect to the 
legislative findings of a co-equal branch of government is troubling.
  Judge Smith told the Federalist Society his own principles for 
deciding such cases: ``First, ask whether the subject matter is within 
the power of the national government by express delegation in the text 
of the [C]onstitution, or impliedly through a historically honest 
reading of the necessary and proper clause. If not stop!'' Such a 
subjectively narrow reading of the Constitution could ostensibly result 
in the overturning of many laws intended to protect the rights of 
individuals. He assured the Senate at his recent hearing that he would 
not read the Constitution so narrowly if he were promoted, but in 1988 
he also assured the Senate that he would resign from a discriminatory 
club the following year, a promise he did not keep. I am not sure his 
assurances on the important issue of the scope of Congressional power 
should be credited now.
  Similarly, Judge Smith gave a speech at the 1997 National Convention 
of the Federalist Society on ``The Federalization of Criminal Law.'' In 
it he criticized the invocation of federal jurisdiction via the 
Commerce Clause in a ``routine'' car bombing case under 18 U.S.C. Sec.  
844, as well as the ``rape-shield'' amendments to the Federal Rules of 
Evidence which generally bars evidence of a rape victim's sexual 
history. Judge Smith took issue with federal intrusion into these areas 
of the law, stating that using that statute in car bombing cases and 
rules like the rape-shield rule reflect ``elitism: a mind set on the 
part of Congress and some federal prosecutors that the state court 
systems can't be trusted to `get it right' . . . never mind the text of 
the Constitution.'' Such statements are unsettling. It seems as though 
Judge Smith has a deep distrust that Congress does not follow the 
Constitution, despite the precedent that requires judges to give 
congressional enactments a presumption of constitutionality.
  Judge Smith has also written an article endorsing an idea he calls 
``benign judicial activism'' in which a judge intervenes early in a 
case to help reach a speedy and just resolution. While this idea has 
superficial appeal, in practice this approach may not be so benign. In 
about half of Judge Smith's more than 50 reversals, the Third Circuit 
reversed his decisions either to grant summary judgment in whole or in 
part to defendants in civil cases or to dismiss plaintiffs' complaints 
with prejudice. In a number of such reversals which span his years on 
the bench the Third Circuit took issue with his early intervention in 
cases in ways that denied plaintiffs the opportunity to have their 
cases adjudicated or tried on the merits. Thus, the Court of Appeals to 
which Judge Smith is now nominated has repeatedly reversed decisions of 
his which improvidently granted summary judgment or dismissals in favor 
of civil defendants, often big, corporate defendants. This pattern, 
combined with his speeches and conduct, raises concern.
  Judge Smith's participation in seminars at resorts paid for by 
special interests is problematic. Another area of concern is that Judge 
Smith has attended a large number of educational seminars funded by 
corporations and groups with an interest in interpreting the law a 
particular way, in a politically or ideologically conservative way 
favoring corporate interests. As a sitting federal judge, Judge Smith 
has spent more than 72 days on junkets at luxury resorts on trips 
valued at more than $37,000 which were funded by corporations and 
conservative special interest groups. Judge Smith has taken three trips 
to seminars funded by the Foundation for Research on Economics and the 
Environment (FREE), which promotes ``free market environmentalism,'' 
opposes environmental regulations, and gives lectures on topics like 
``Liberty and the Environment: A Case for Principled Judicial 
Activism.'' He has also taken nine trips funded by the Law and 
Economics Center (LEC), which is affiliated with George Mason Law 
School and which sponsors seminars with anti-regulatory bent on topics 
like ``Misconceptions about Environmental Pollution and Cancer.''

  My colleague on the Senate Judiciary Committee, Senator Feingold, has 
spent a great deal of time trying to address the problem of these 
junkets. The current ethical rules do not clearly prohibit such 
judicial education seminars at luxury resorts paid for by special 
interests, and it is difficult for outsiders to obtain information 
about who is really footing the bill. According to one report, however, 
Judge Smith has presided over at least two dozen cases involving 
corporations that funded LEC and he is one of the most frequent fliers 
to such seminars. I do think it is difficult to maintain the appearance 
of impartiality under such circumstances. It is axiomatic that judges 
must be perceived as fair and impartial, and actually be so, for our 
system of justice to work. I am troubled by Judge Smith's insensitivity 
to such matters.
  Judge Smith's reversals for dismissing plaintiffs' claims: I am also 
concerned about the unsettling anti-plaintiff pattern in Judge Smith's 
judicial decisions. Judge Smith's published and unpublished decisions 
reveal numerous instances in which he has been more solicitous to 
corporations than to plaintiffs and pro se litigants. Judge Smith has 
been reversed by the Third Circuit dozens of times for denying 
plaintiffs the opportunity to try the merits of their cases. In cases 
involving personal injuries, toxic torts, employee rights, and civil 
rights claims by prisoners, Judge Smith has been reversed for 
improvidently granting defendants' motions for summary judgment, 
prematurely dismissing plaintiffs' complaints, and inappropriately 
denying motions for injunctive relief without giving the plaintiffs a 
hearing.
  Overall, Judge Smith has been reversed 51 times, including 18 
unpublished reversals, in 14 years. In contrast, Judge Pickering was 
reversed 28 times in 11 years and Judge Barrington Parker, one of 
President Bush's nominees who was confirmed last fall, was

[[Page S7558]]

reversed nine times in 11 years on the district court bench. The Third 
Circuit's reversals suggest that Judge Smith's political philosophy 
greatly influences the outcome in cases before him. Of the many 
problematic reversals and published, as well as unpublished, decisions 
of Judge Smith on the district court, three are particularly 
illustrative of his approach to claims of plaintiffs, but there are 
many others that raise concerns.
  In Metzgar v. Playskool, 30 F.3d 459 (3d Cir. 1994), for example, 
three Reagan appointees reversed Judge Smith's dismissal by summary 
judgment to the corporate defendant that had been sued for the death of 
a 15-month-old child who choked on a wooden block marketed without a 
warning label. Judge Smith granted summary judgment to the corporation 
on his theory that choking is an obvious danger and therefore no 
express warning was necessary. The Third Circuit was ``troubled'' by 
Judge Smith's analysis and his reliance on flawed statistics. The 
appellate court concluded that Judge Smith should have given the jury a 
chance to consider whether the blocks were so obviously dangerous that 
no specific warning was needed for parents of toddlers.
  In Wicker v. Consolidated Rail Corporation, 143 F.3d 690 (3d Cir. 
1998), Judge Smith was reversed for granting summary judgment to an 
employer sued under the Federal Employees Liability Act (FELA) for 
injuries caused by exposure to toxic solvents, degreasers and paints 
illegally dumped and buried by the employer. Smith granted the 
corporation's motion for summary judgment on the ground that the 
workers had signed a release settling prior, unrelated injury claims 
against the railroad. The Third Circuit reversed and held that FELA was 
intended to protect workers in these situations and that the releases 
seized on by Smith were invalid.
  In Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir. 1994), Judge 
Smith improvidently granted summary judgment to a city that refused to 
allow the plaintiff and his Pentecostal ministry access to tent revival 
meetings in violation of their rights under the Free Exercise Clause of 
the First Amendment. The city had intentionally locked a recently-
erected gate to impede access to the Christian revival meetings. Judge 
Smith concluded erroneously that these actions, even if manifesting 
anti-Christian bias, did not constitute a substantial burden on the 
exercise of their religion. The Third Circuit reversed, holding that 
Judge Smith's analysis was ``inappropriate for a free exercise claim 
involving intentional burdening of religious exercise'' because 
``[a]pplying such a burden test to non-neutral government actions would 
make petty harassment of religious institutions and exercise immunity 
from the protection of the First Amendment.'' The Third Circuit 
completely disagreed with Judge Smith's hostile decision in which he 
stated that the plaintiff's ``invocation of the First Amendment 
provisions guaranteeing religious liberty in so glaring a piece of 
spiteful litigation is insulting to the principles protected by that 
constitutional amendment.'' I was shocked by Judge Smith's rough and 
disrespectful treatment of the legitimate claims of people of faith in 
this case.

  This unsettling pattern created by Judge Smith's judicial decisions, 
his high level of participation in right wing, special interest-funded 
junkets, his activist and insensitive speeches, his late recusal in 
cases involving his substantial financial interests, and his very 
belated resignation from a discriminatory club create a very 
unfavorable impression. Judge Smith's defense to each of these 
significant problems seems to be that he actually is a fair judge 
despite the appearance that he is not. I am not convinced that his 
record warrants a promotion to a higher court.
  Judge Smith's cramped and self-serving approach to the ethical rules 
that are supposed to govern federal judges is particularly troubling. 
He seems to think he is above the rules. His actual record of conduct 
on and off the bench creates a negative impression that is not 
reflected in Judge Smith's apparent popularity among his friends. I 
have no doubt that Judge Smith is an intelligent and charismatic 
person. What his record as a whole, not just as a colleague or friend, 
calls into question is his sensitivity, his fairness, his impartiality 
and his judgment. It calls into question how seriously he has taken his 
promises and assurances to the Senate in the past and recently, as well 
as how seriously he has taken his oath as judge to administer justice 
to all persons equally and to do equal right to the poor and to the 
rich. The record Judge Smith's own record of performance as a federal 
judge over these past 14 years does not merit his promotion to one of 
the highest courts in the land. Based on that record, I will vote 
against confirmation.
  My good friend from Utah is waiting patiently. I withhold the 
remainder of my time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, hearing my colleague, one might forget that 
this is the U.S. Senate rather than some whacky politically correct 
college campus--Berkeley on the Potomac. The fact is, this judge is one 
of the most respected judges in all of Pennsylvania. He has virtually 
everybody in western Pennsylvania on his side. He has served 14 years 
on the Federal bench and has done a very good job in doing so. He is 
highly respected and has the highest rating from the American Bar 
Association--the gold standard, according to our colleagues from the 
other side. And he did not break his word.
  The fact is, the law was different than was explained to him when he 
appeared before the committee, and it is still different than the 
distinguished Senator from Vermont has been making out here today.
  I often hear my colleagues talk about the Clinton nominees who were 
left at the end of the 106th Congress, but I rarely hear them mention 
the 54 nominees who were left at the end of the Democratic-controlled 
102nd Congress when George Herbert Walker Bush was President. If we are 
going to waste our time looking back on nominations past instead of 
looking ahead, let's not forget the 54 nominees the Democratic-
controlled Senate left at the end of the 102nd. That is 13 more than 
the number of Clinton nominees left at the end of the 106th whom we 
hear so much about, and about 17 of them didn't have a chance anyway. 
The rest of them there were for reasons. Some of them, the blue slips 
weren't returned by Senators. You can't call them up.
  I don't really think to talk about past congressional action on 
nominations in any way furthers the work we have been doing as a 
committee. However, it is difficult to listen to only a select portion 
of what has occurred in the past without trying to set the record 
straight. Those Bush 1 nominees who were never confirmed are just as 
important as these Clinton nominees who have been complained about, and 
there were far more of them than there were Clinton nominees left over. 
It is just a matter of fact. Whoever is President, you have some 
nominees left over. But there were a lot more left over by Democrats 
than there were by Republicans.
  Let me name some of them: Jay C. Waldman of the Third Circuit, 
nominated for the Third Circuit; Franklin Van Antwerpen, Third Circuit; 
Lillian R. BeVier, Fourth Circuit; Terrence W. Boyle, Fourth Circuit, 
who has been sitting here for 14 months, nominated again 10 years 
later; Francis Keating II, current Governor of Oklahoma, the Tenth 
Circuit; Sidney A. Fitzwater, Fifth Circuit; John G. Roberts, again, 
nominated by the second Bush 10 years later, sat there all those months 
in the first Bush, and now he is sitting here for 14 months in this 
administration; John A. Smietanka, Sixth Circuit; Frederico Moreno, 
Eleventh Circuit; Justin P. Wilson, Sixth Circuit; James R. McGregor, 
Western District of Pennsylvania; Edmund Kavanagh, Northern District of 
New York; Thomas Sholtz, Southern District of Florida; Andrew O'Rourke, 
Southern District of New York.
  There are plenty of names and an awful lot more than were left at the 
end of the Clinton administration, and with very little justification. 
They have seldom mentioned that the all-time confirmation champion was 
Ronald Reagan with 382 judges. He had 6 years of a favorable party 
Senate. His own party controlled the Senate. He got 382 judges through. 
President Clinton, with the opposition party controlling the Senate, 
with me as chairman,

[[Page S7559]]

as a member of the opposition party, got 377 judges through, virtually 
the same number as the all-time confirmation champion, Ronald Reagan.
  Continuing my list of judges: Tony Graham, Northern District of 
Oklahoma; Carlos Bea, Northern District of California; James Franklin 
Southern District of Georgia; David Trager, Eastern District of New 
York; Kenneth Carr, Western District of Texas; James Jackson, Northern 
District of Ohio; Terral Smith, Western District of Texas;, Paul 
Schechtman, Southern District of New York; Percy Anderson, Central 
District of California; recently confirmed; Lawrence Davis, Eastern 
District of Missouri; Andrew Hane, Southern District of Texas; recently 
confirmed; Russell Lloyd, Southern District of Texas; John Walter, 
Central District of California; recently confirmed; Gene Vougts, 
Western District of Missouri; Manuel Quintana, Southern District of New 
York; Charles Banks, Eastern District of Arkansas; Robert Hunter, 
Northern District of Alabama; Maureen Mahoney, Eastern District of 
Virginia; James Mitchell, District of Nebraska; Ronald Leighton, 
District of Oklahoma; William Quarles, District of Maryland; James 
McIntyre, Southern District of California; Leonard Davis, Eastern 
Northern District of Texas; recently confirmed; Douglas Drushal, 
Northern District of Ohio; Christopher Hagy, Northern District of 
Georgia; Lewis Leonatti, Eastern District of Missouri; Raymond Finch, 
Northern District of Vermont; James McMonagle, Northern District of 
Ohio; Katherine Armentrout, District of Maryland; Larry Hicks, District 
of Nevada; Richard Casey, Southern District of New York; Edgar 
Campbell, Middle District of Georgia; Joanna Seyvert, Eastern District 
of New York; Robert Kostelka, Western Northern District of Louisiana; 
Richard Dorr, Western District of Missouri; has had a hearing; James 
Payne, District of Oklahoma, confirmed this congress; Walter Prince, 
District of Massachusetts; George O'Toole, Jr., District of 
Massachusetts; William Dimetroulas, Southern District of Florida; Henry 
Saad, Eastern District of Michigan--not to mention Kenneth Ryskamp, 
who, like Charles Pickering, was voted down in committee and never 
received a full Senate vote.
  Let me also say I am going to get into this because I didn't think we 
would get down to the point where we started talking about a 115-member 
club that is a social club, not a business club, and virtually 
everybody knows it. To make that the big brouhaha that this is supposed 
to be is just almost beyond belief to me. I didn't want to have to talk 
about that, but I will be happy to.
  I rise today to express my strong support for Judge D. Brooks Smith 
whom the President nominated on September 10 of last year for the Third 
Circuit Court of Appeals to be confirmed today or tomorrow. It has been 
over 5 months since his committee hearing. It has been over 60 days 
since the Judiciary Committee reported Judge Smith's nomination 
favorably to the Senate. I am disappointed, however, with the treatment 
Judge Smith is getting from those whose well-funded business it is to 
oppose President Bush's nominees.
  I have warned before of the growing power of the extreme left of 
mainstream special interest groups upon the judicial confirmation 
process. Almost all of them are right here in this town. My colleagues 
know full well that when I was chairman of the Judiciary Committee, I 
did not welcome conservative groups telling the committee how to vote 
and what to do. I told them to get lost. I even directed my staff to 
refuse briefings from them and even meetings with them. But the 
evidence indicates a very different relationship now to liberal special 
interest groups that seem to call the shots.

  Newspapers from the Wall Street Journal to the Washington Post have 
commented on these liberal special interest groups and on their control 
of this process. But it is not a matter of opinion; here is the 
evidence. I would like to have printed in the Record evidence of this 
unfortunate relationship. First is a fundraising letter from People for 
the American Way taking credit for the rather shameless defeat of Judge 
Charles Pickering's nomination; second, a letter from a liberal 
Hispanic organization telling the committee not to bring up the 
nomination of Miguel Estrada until August to give them time to prepare 
a Pickering-like campaign against him. The President nominated Miguel 
Estrada over 1 full year ago. He would be the first Hispanic to sit on 
the Nation's second most influential court. But the Democratic 
leadership refuses to give him a hearing. Now I think we know why.
  Lastly, I want to have printed in the Record a press release from the 
National Organization For Women, issued just hours after the Judiciary 
Committee voted to report favorably the nomination of Judge Brooks 
Smith to the full Senate. It appears that NOW and other radical liberal 
groups have demanded that the Democrat leadership come to the floor and 
fight to defeat Judge Smith.
  I ask unanimous consent that the documents I have just referenced be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                  People for the American Way,

                                    Washington, DC, April 5, 2002.
       In the past couple of weeks, the Wall Street Journal's 
     notoriously right-wing editorial board has twice attacked 
     People For the American Way--and me personally--in 
     particularly venomous language. Being called a ``race-card 
     specialist'' is not the best way to start the day. (You think 
     I'd be used to it given that the Journal's editorial board 
     has run more than two dozen attacks on me over the years, 
     especially during my tenure at the Leadership Conference on 
     Civil Rights as I chaired the successful coalition battle to 
     keep Robert Bork off the U.S. Supreme Court.)
       But there's good news in those unfair and inaccurate 
     poison-pen editorials. As a longtime progressive ally 
     recently reminded me, they don't come after us like that 
     unless they think we're winning.
       In this case their fears were well founded. On March 14, 
     the Senate Judiciary Committee voted to reject the nomination 
     of Judge Charles Pickering to a lifetime appointment to the 
     U.S. Circuit Court of Appeals. People For the American Way 
     played a crucial leadership role in the broad progressive 
     coalition effort to defeat this nomination in the face of 
     attacks from the far right, the GOP Senate leadership, and 
     the White House. Even before the vote, the far right had been 
     coming after us with all the rhetorical fury they can muster. 
     I can only imagine what will happen now that it is clear we 
     won't let them complete their ideological takeover of the 
     federal courts without a fight.
       Pat Robertson recently told millions of his television 
     viewers that People For the American Way is ``bad news for 
     America. They don't tell the truth, and what they're doing is 
     essentially smearing this man.'' Robertson's son Gordon, the 
     heir apparent to the evangelist's empire, used the same 
     television platform to accuse People For the American Way of 
     ``anti-Christian bigotry,'' telling viewers we opposed 
     Pickering because he is a Christian. Phyllis Schlafly's Eagle 
     Forum has denounced People For the American Way and our 
     allies as an ``Unholy Alliance'' while calling Democratic 
     members of the Senate Judiciary Committee the ``Tyrannical 
     Ten.''
       Ultra-conservative senators like Trent Lott, Orrin Hatch 
     and Mitch McConnell have gone after us and other Pickering 
     critics. And right-wing pundits on the Internet are even 
     worse, making totally irresponsible and inflammatory remarks.
       The increasing frequency and harshness of the attacks 
     directed against People For the American Way reflect more 
     than anything else our leadership role in the progressive 
     movement and the effectiveness of our work. We've been 
     accused of aiding America's enemies for standing up to 
     Attorney General John Ashcroft and his assaults on the 
     Constitution. We've been attacked as anti-Christian bigots 
     for defending separation of church and state. And now we're 
     being attacked for fighting to preserve the federal courts as 
     a refuge for people seeking to have their civil rights and 
     civil liberties protected.
       The recent Judiciary Committee vote was the first victory 
     in what will certainly be a long and fierce struggle over the 
     future of the federal judiciary and the rights and freedoms 
     protected by our Constitution.
       I hope that you will take this opportunity to become a 
     member of People For the American Way or to continue your 
     support. At this watershed moment in our history, we would be 
     proud and honored to march forward with you as our partner.
           Sincerely,
                                                    Ralph G. Neas,
                                                        President.

[[Page S7560]]

     
                                  ____
         Mexican American Legal Defense & Educational Fund, 
           National Association of Latino Elected & Appointed 
           Officials, National Council of La Raza, National Puerto 
           Rican Coalition, Puerto Rican Legal Defense & Education 
           Fund,
                                      Washington, DC, May 1, 2002.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: As national Latino civil rights 
     organizations, we write on a matter of great importance to 
     U.S. Latinos, and all Americans--the nomination of Miguel 
     Estrada to the D.C. Circuit Court of Appeals. Although 
     historically we have expressed our views on judicial nominees 
     with different levels of frequency, we are united in our view 
     that all federal judicial appointments are important because 
     they are life-long appointments, because they are positions 
     of great symbolism, and because federal judges interpret the 
     U.S. Constitution and federal laws serving as the balance to 
     the legislative and executive branches of the federal 
     government. While the Supreme Court is the highest court, the 
     appellate courts wield considerable power. During its most 
     recent term, the Supreme Court heard only 83 cases, while the 
     circuit courts decided 57,000 cases. As a practical matter, 
     circuit courts set the precedent in most areas of federal 
     law.
       We are united at this time around our belief that Mr. 
     Estrada's nomination deserves full, thoughtful, and 
     deliberate consideration. The President proposes to place Mr. 
     Estrada, who has no judicial experience, on arguably the 
     single most important federal appeals court to decide a 
     myriad of statutory and regulatory issues that directly 
     affect the Latino community. Every appointment to a powerful 
     court is important as we recently witnesses in the Supreme 
     Court's 5-4 decision in Hoffman Plastics that stripped 
     undocumented workers of certain labor law protections. This 
     decision, which inevitably will result in increased 
     exploitation of the undocumented, as well as weaker labor 
     standards for all low-wage workers, underscores the 
     importance of nominations such as this one, not just to 
     Hispanics, but all Americans.
       This decision comes on the heels of a series of Supreme 
     Court decisions which, in our view, have unnecessarily and 
     incorrectly narrowed civil rights and other protections for 
     Latinos. While we look to see if judicial nominees meet 
     certain basic requirements such as honesty, integrity, 
     character, temperament, and intellect, we also look for 
     qualities that go beyond the minimum requirements. We look to 
     see if a nominee, regardless of race or ethnicity, has a 
     demonstrated commitment to protecting the rights of 
     ordinary U.S. residents and to preserving and expanding 
     the progress that has been made on civil rights, including 
     rights protected through core provisions in the 
     Constitution, such as the Equal Protection Clause and Due 
     Process Clause, as well as through the statutory 
     provisions that protect our legal rights.
       We are aware that some are demanding a commitment from you 
     and the Judiciary Committee to announce a date certain for 
     action on Mr. Estrada's nomination. We agree with the 
     proposition that every nominee deserves timely consideration. 
     For this reason, we urged the Senate to act on the nomination 
     of Judge Richard Paez to the Ninth Circuit Court of Appeals, 
     who was forced to wait for four years before being confirmed. 
     We also believe, however, that if a nominee's record is 
     sparse the Judiciary Committee should allow sufficient time 
     for those interested in evaluating his record, including the 
     U.S. Senate, to complete a thorough and comprehensive review 
     of the nominee's record. We therefore respectfully request 
     that you consider scheduling a hearing no earlier than 
     August, prior to the scheduled recess. This leaves sufficient 
     time for action prior to adjournment if his record is strong 
     enough to receive substantial bipartisan support.
       In the interim, we pledge to conduct a fair and thoughtful 
     assessment of Mr. Estrada's record, and to communicate our 
     views on his nomination to you, Ranking Member Hatch, and 
     other Committee members in a timely manner.
           Sincerely,
     Antonia Hernandez,
       President and General Counsel, Mexican American Legal 
     Defense and Educational Fund.
     Raul Yzaguirre,
       President, National Council of La Raza.
     Manuel Mirabal,
       President, National Puerto Rican Coalition.
     Juan Figueroa,
       President and General Counsel, Puerto Rican Legal Defense 
     and Education Fund.
     Arturo Vargas,
       Executive Director, National Association of Latino Elected 
     and Appointed Officials.
                                  ____


        [From the National Organization for Women, May 23, 2002]

   Judiciary Committee Vote Insults Women; NOW Vows Campaign in Full 
                                 Senate

                             (By Kim Gandy)

       The field of credible Democrats running for President was 
     significantly narrowed today when two rumored candidates 
     insulted every employed woman, every woman in business, and 
     every woman who has been a victim of violence in this 
     country. In casting their votes to promote Judge D. Brooks 
     Smith to the Third Circuit Court of Appeals, only one step 
     below the Supreme Court, rumored candidates Sen. Joseph 
     Biden, D-Del., and Sen. John Edwards, D-N.C., disregarded the 
     extensive evidence of unethical behavior and discriminatory 
     conduct that caused the Washington Post, New York Times and 
     Los Angeles Times to oppose Smith's confirmation.
       In an embarrassingly convoluted rationale, Biden expressed 
     disappointment in Smith's strong criticism of the Violence 
     Against Women Act (VAWA), but said it would be a ``double 
     standard'' to vote against Smith because Supreme Court Chief 
     Justice William Rehnquist held a similar opinion on VAWA. 
     Apparently Biden doesn't recall that his vote for Rehnquist 
     was cast many years before VAWA was even introduced. As for a 
     ``double standard,'' someone should tell Sen. Biden that 
     double nothing is still nothing. Biden's previous leadership 
     on violence against women is just that--previous. He has 
     jettisoned it in favor of friendship--his stated presumption 
     of supporting any nominee sponsored by Sen. Arlen Specter, R-
     Pa. No doubt the people of Delaware will want to know that 
     they have elected a Republican from Pennsylvania to represent 
     them.
       Another Presidential wanna-be, Sen. Edwards, hid out in his 
     office across the hall from the hearing, and didn't even have 
     the courage to case his ``Yes'' vote in public. Sen. Herbert 
     Kohl, D-Wis., joined all of the committee Republicans, whose 
     cowardly votes betrayed the women of their states by 
     recommending elevation of a judge whose repeated ``ethical 
     lapses'' deserve censure, not promotion.
       The Senate's reputation as an ``Old Boys Club'' was 
     reinforced by today's vote, in which both of the women on the 
     Judiciary Committee voted against Smith, but he won anyway 
     because 12 of the 17 men voted in his favor. To promote a 
     judge who will have to decide on cases of discrimination, 
     when that judge has himself cavalierly participated in 
     discrimination and even ruled in favor of discriminatory 
     practices, is the height of irresponsibility by those who are 
     charged with that duty.
       NOW commends both of the women who serve on the Judiciary 
     Committee, Senators Dianne Feinstein, D-Calif., and Maria 
     Cantwell, D-Wash., whose votes against confirming Smith spoke 
     volumes, as well as Committee Chair Patrick Leahy, D-Vt., who 
     spoke eloquently about discrimination against women, and 
     Senators Richard Durbin, D-Ill., Russ Feingold, D-Wis., 
     Edward Kennedy, D-Mass., and Charles Schumer, D-N.Y.
       NOW intends to seek a filibuster in the Senate against 
     Judge Smith's confirmation, and will urge every Senator to 
     participate who cares about protecting the last 40 years of 
     progress women have made. The Judiciary Committee's vote for 
     D. Brooks Smith made a mockery of judicial standards. Unless 
     the full Senate reverses, it will send a message to women 
     that they can't expect to have civil rights--or ethics--taken 
     seriously by the Senate or the courts.

  Mr. HATCH. Referring in the most vitriolic terms to my friends, 
Senators Biden and Edwards, voting for Judge Smith in committee, NOW 
begins by saying:

       The field of credible Democrats running
     for President was significantly narrowed
     today. . . .

  This is simply because these Senators exercised their independent 
judgment and supported Judge Smith. Honoring the President's 
prerogative to nominate judges should hardly be a cause to attack my 
Democrat colleagues or take them out of a potential Presidential 
candidacy or race.
  Rather than speak further about Judge Smith's enemies, I would like 
to speak about his friends. I think an editorial in the liberal 
Pittsburgh Post-Gazette put Judge Smith's nomination best when they 
wrote:

       Outside Washington's world of partisan politics, Smith 
     seems to have no enemies, only admirers. Those who have 
     watched him work say an exemplary 14-year record in the 
     Federal bench in Western Pennsylvania is being twisted by 
     political opportunists. His popularity outside the capital 
     extends even to members of the opposing political party, who 
     describe him as fair, hard-working, and respectful to all.

  I hope I am not alone in this Senate in finding this home-town report 
much more reliable and convincing than the hit pieces circulated by the 
Washington left-wing special interest groups, or for that matter the 
New York Times, which I read faithfully everyday and respect in many 
ways--but not in this instance.
  But given the bipartisan support Judge Smith enjoys from the people 
who know him best, and his stellar

[[Page S7561]]

record, I find it most difficult to accept that the opposition to him 
has centered on his belonging to an all-male, family oriented fishing 
club where his father first taught him to fly fish--the same rustic 
club that Jimmy and Roslyn Carter have visited to escape, relax, and 
fish.
  If this is the kind of thing that members of the body use as an 
excuse for thwarting the President's judicial nominations, then the 
American people will have a big laugh at our expense. And rightly so.
  In fact, there are hundreds of small, family-oriented fishing clubs 
like the one Judge Smith belonged to all across this country from 
Washington to North Carolina. I even pointed out the website called 
www.womensflyfishing.net, which lists the 60 or so women-only fishing 
clubs across the country.
  We are far from those days when prestigious downtown clubs kept women 
out of their facilities, and in any case that is not the nature of 
Judge Smith's family-oriented, fly-fishing club. The special interest 
groups out to get Judge Smith on this count are proving that when the 
only tool you have is a hammer, everything you see starts looking like 
a nail.
  In fact, there is a rich mosaic of single gender social clubs in this 
country that are entirely unobjectionable to any reasonable person. You 
should not be surprised to know, Mr. President, that this country is 
well-served by over 6,500 women's only clubs of every size.
  Are Judge Smith's opponents in this Senate really prepared to say 
that the members of the important Francesca Club in San Francisco or 
the powerful Raleigh Women's Club, or the Junior Leagues throughout the 
South and all over the country, or the Masons, or the Knights of 
Columbus cannot serve as judges?
  Perhaps the reason for this misguided line of attack on Judge Smith 
lies in the fact that, in his 1988 confirmation hearing before the 
Judiciary Committee, he stated that he believed the Judicial Code would 
require him to try to open the club to women, and to resign if he 
failed. But the fact is that he was wrong in that belief. The Judicial 
Code does not require resignation from clubs whose principal purpose is 
social, that do not function as public accommodations serving food to 
the public, or whose principal purpose is other than business.
  Mr. President, the building you saw has a living room, a kitchen, two 
bathrooms, and six bedrooms on the second floor. It is not a great big 
building, even though they blew up a picture to make it look like it 
was. Even if it was, it is used only for social purposes, and then by a 
membership of 115.
  By the way, that club does not have public accommodations. It does 
not serve food to the public. It does not do business with the public.
  No legalistic parsing of words can change this fact, even though any 
motivated lawyer can certainly confuse the issue, as we have seen in 
the Judiciary Committee.
  It is not surprising, of course, that the Judge Smith's detractors 
have chosen to disregard the clear constitutional standards articulated 
by the Supreme Court as well as the letter of the public accommodations 
law of Pennsylvania. After 1988, when the issue of single gender clubs 
was at its most heated peak, the Judicial Conference adopted standards 
pursuant to Supreme Court's decisions. It made clear that there was 
nothing--absolutely nothing--improper about a judge or nominee 
belonging to single-gender clubs, which exist in great numbers for both 
women and men in this country, so long as the association or club 
exhibits certain attributes of privacy first articulated by the Supreme 
Court in the 1984 case of Roberts v. Jaycees.
  Judge Smith was under no obligation to make efforts to open the club 
to women--as he promised this committee--or to resign from the club. 
But he did both, even though he had no obligation to do so.
  Opposing Judge Smith because he used to belong to a fisher-men's club 
is most absurd when contrasted with Judge Smith's record. Judge Smith, 
who currently serves as Chief Judge for the Western District of 
Pennsylvania, has earned a reputation for competence, fairness, and 
judicial temperament during 14 years as a Federal judge.
  I used to practice law in that district and tried cases in the 
Federal District Court of Western Pennsylvania.
  Judge Smith was appointed to that job at age 36--he was one of the 
youngest Federal judges in the country--and he came to it with 
experience as a state court judge, as a prosecutor, and as a private 
practitioner.
  His nomination is supported by lawyers, judges, and public figures 
from across the political spectrum. The Pittsburgh Post-Gazette, a 
respected newspaper with a liberal editorial viewpoint, has endorsed 
his nomination three times.
  The accounts of the people who know Brooks Smith best became real to 
me a few weeks ago when I listened to tremendously moving stories of 
women lawyers from Pennsylvania who recounted emotionally powerful 
events where Judge Smith bent over backwards to help them succeed as 
pregnant women and mothers in the practice of law.
  The truth is that Judge Smith is supported in the strongest possible 
terms by the women leaders and members of the Women's Bar Association 
of Western Pennsylvania, the Allegheny County Bar Association, and the 
Blair Bedford Domestic Abuse Advisory Board, to name a few.
  The Women's Bar Association gave Judge Smith their Susan B. Anthony 
Award ``because of his commitment to eradicating gender bias in the 
court system.'' That is a remarkable laud. The officers of the Women's 
Bar have also stated that they ``did not receive a single complaint 
concerning Judge Smith.''
  To attempt now to taint Judge Smith as being insensitive to women's 
rights or interests is really beyond the pale of fairmindedness, if not 
decency.
  Judge Smith, who is currently the Chief Judge for the Western 
District of Pennsylvania, has earned a reputation for competence, 
fairness, and judicial temperament during his 13\1/2\ years as a 
Federal judge. He was appointed to that job at age 36--he was one of 
the youngest Federal judges in the country--and he came to it with 
experience as a State-court judge, as a prosecutor, and as a private 
practitioner.
  I briefly recount Judge Smith's record because it highlights the 
nature of the prejudice that occurs when a nominee or any person is 
judged on a single, private and lawful lifestyle choice. It seems to me 
that the root of all intolerance begins with just that act: to judge a 
person's entire worth based on a single characteristic, whether it be 
how a person exercises his or her freedom or religion or his of her 
freedom of association, which, like religion, has contributed so much 
to this Nation's unmatched vitality.
  I believe the Senate suffered a great shame when it ruined whole 
careers in the 1950s by asking a single infamous question intruding 
into the freedom of association. I was ashamed when the Judiciary 
Committee echoed this question last year by questioning nominees about 
the Federalist Society, as distinguished an association of lawyers as 
there could be. Now the special interest groups are asking the Senate 
to deny the President's nominee a confirmation on the basis of a fly 
fishing club.
  I fear the American people, are going to roll their eyes at the 
Senate with these type of accusations. But the truth of it is that if 
we disregard the right of lawful association, it will be no laughing 
matter.
  The Supreme Court first recognized the freedom of association in 1958 
as an extension of first amendment free speech in NAACP v. Alabama, and 
most recently it reaffirmed the right in Boy Scouts of America v. Dale.
  It is a right, as Justice Thurmond Marshall wrote, ``which our system 
honors'' and that encourages ``all-white, all-black, all-brown, all-
yellow clubs, as well as all-Catholic, all-Jewish as well as all-
agnostic clubs to be established.'' And, it is a right that applies, 
Mr. President, as Justice Sandra Day O'Connor noted, to clubs whose 
purposes would be ``undermined if they were unable to confine their 
membership to those of the same sex, race, religion, or ethnic 
background.''
  We should be glad that our personal politics are trumped by this 
American freedom because it has protected groups as diverse as the 
Communist Party and the Moose Lodge, and from the NAACP to the Boy 
Scouts of America. The freedom of association has

[[Page S7562]]

protected the thousand points of light that have made this country's 
public life so vibrant. And it helps to distinguish us from those 
foreign places where people are shunned or even imprisoned for mere 
memberships in unpopular associations.
  While the constitutional right of association at first related to 
expressive association and protected unpopular groups, like the NAACP, 
in 1984, the Supreme Court articulated the right of intimate 
association concerning clubs such as Judge Smith's small fishing club. 
It did so while enforcing Minnesota's public accommodations law against 
a large single gender organization organized principally for business 
purposes. That is not the case here. The Court described the attributes 
of such intimate associations that the Constitution honors, including 
``relative smallness.'' That is the case here. Judge Smith's former 
club has only 115 members. It has been around for a lot of years and 
has had both women and men enjoy the benefits.
  An intimate association, said Justice Brennan, writing for the Court, 
must be protected ``as a fundamental element of personal liberty,'' and 
``must be secured against undue intrusion . . . because of the role of 
such relationships in safeguarding the individual freedom central to 
our constitutional scheme.'' As Justice Brennan explained, such small 
clubs transmit our culture and ``foster diversity.'' They foster 
pluralism.
  I for one stand by our freedom of association. As Justice Thurmond 
Marshall pointed out, it is a freedom that has helped make this country 
great, and a freedom we honor. I hope that all on this Committee do 
also, and that Judges, or people who might want to be Judges someday, 
are just as free as anyone else to exercise that right lawfully.
  Now, Senators who do not share my reverence for this First Amendment 
right will be interested to know that the State of Pennsylvania has a 
law against clubs that discriminate on the basis of gender. 
Pennsylvania has not sought to regulate the club Judge Smith resigned 
from--and for a good reason: that club does not violate the law against 
discrimination.
  In fact, Pennsylvania courts have found single-gender clubs to be 
permissible not on the basis of First Amendment rights, but as a 
privacy right, citing Griswold v. Connecticut. It would certainly be an 
entertaining footnote to Griswold jurisprudence if opponents of Judge 
Smith, who have seen fit to probe Judge Smith's views on Griswold, 
voted against him for exercising privacy rights emanating from that 
very case.
  The special interest groups that are working to discredit Judge Smith 
apparently think that President Bush's circuit court nominees deserve 
to have their records distorted and their reputations dragged through 
the mud. But I don't think that any judicial nominee deserves such 
treatment, and that was something I practiced as chairman for 6 of 
President Clinton's 8 years in office.
  I strongly agree with the Washington Post editorial of February 19, 
2002, and nobody would suggest the Washington Post is a conservative 
newspaper, that ``opposing a nominee should not mean destroying him.'' 
The Post pointed out, ``The need on the part of liberal groups and 
Democratic senators to portray a nominee as a Neanderthal--all the 
while denying they are doing so--in order to justify voting him down is 
the latest example of the degradation of the confirmation process.''
  I continue to hope that my colleagues will be sensitive to the 
dangers to the judiciary and to the reputation of this body that will 
certainly result from the repeated practice of degrading honorable and 
accomplished people who are will to put their talents to work in the 
public service. I urge my colleagues to examine Judge Smith on his 
record, and not on superficial and unsubstantiated allegations.
  When Judge Smith comes for a vote we will have the opportunity to 
show that the senate is focused on the merits of President Bush's 
nominees, and is not out to obstruct them in the name of sensibilities 
far from the mainstream of the American people. I hope we take it. I 
hope we vote favorably on a fine judge.
  My colleague has made a point in the past that somehow men's clubs 
are problematic and powerful and that women's clubs are somehow 
different and poorer. That is not a problem. I have a photo of an all-
women's club. This is the Sulgrave Club of Washington. I, for one, 
believe they have a right to have an all-women's club.
  If my colleagues have trouble seeing the club, it is a mansion. It is 
not just a living room, kitchen, and six bedrooms upstairs. It is the 
building behind the Jaguar, the Lexis and, of course, the Mercedes. It 
is not itty-bitty by anybody's stretch of the imagination. And it is 
probably in a historical landmark situation.
  My colleague has also mentioned the ethicists who have written to 
condemn Judge Smith. Other ethicists have written to support Judge 
Smith.
  One of these Democrat ethicists, by the way, is the one standing on 
the car. If my colleagues cannot see it because it is a little dark, 
maybe the camera can come in a little closer. That is one of the 
ethicists they can get to write almost any opinion they want. This 
ethicist has argued in favor of introducing false testimony into a 
trial and argued perjured testimony to a jury.
  This is a photograph of another of the regulars who write to denounce 
President Bush's nominees. I might add, again, he is the one standing 
on top of the police car. We expect to have a lot of other letters from 
this particular ethicist.
  This is the type of stuff we are putting up with. I think it is time 
to stop it. I think it is legitimate for people to differ on a judge's 
qualification from time to time, but there is little or no reason to 
differ on this one. This is a good man.
  I hold a license in that area. I know the top lawyers in that area. I 
tried against a number of the top lawyers in that area. I have to say I 
do not know any of them who are not in favor of Judge Smith, and that 
ought to count more than some of these bits of calumny that have been 
thrown his way by some who do not like President Bush's nominees.
  Mr. KENNEDY. Mr. President, I will vote against the confirmation of 
Judge D. Brooks Smith to the United States Court of Appeals for the 
Third Circuit. While Judge Smith is an intelligent jurist, I believe 
that his serious ethical lapses, and his record of reversals by the 
Third Circuit in cases concerning civil rights, and the rights of 
workers, environmental protection and consumer safety suggest that 
Smith has not met his burden of showing that he should be elevated to 
the Third Circuit.
  Judge Smith's handling of his membership in the Spruce Creek Rod and 
Gun club, a club whose by-laws explicitly forbid the admission of 
women, gives me great concern. I am disturbed by Judge Smith's failure 
to resign from the Spruce Creek Club in a timely manner despite his 
sworn oral and explicit written promise to this committee at the time 
of his 1988 confirmation hearing. Smith promised that if he was 
unsuccessful in trying to change the club's membership policies he 
would resign, but he failed to do so for another 11 years, until 1999.
  Rather than provide a simple explanation, or an apology, for his 
failure to fulfill this promise, Judge Smith claimed at his hearing 
that the Judicial Code of Conduct, the ethical rules governing judges, 
did not actually require resignation from the club. According to Smith, 
the Spruce Creek Club is purely a social club and is thus exempt from 
the rules. This strikes me as disingenuous. Judge Smith's 1999 
resignation letter to Spruce Creek made clear that he was resigning 
from the club because its male-only admissions policies ``continue to 
be at odds with current expectations of Federal judicial conduct,'' 
suggesting that he knew the club's membership policy was in conflict 
with the Judicial Code of Conduct.
  Contrary to Judge Smith's representations, it also appears that the 
Spruce Creek Club is not merely a social club, but a place where 
business is conducted. Three ethicists, including one who wrote at the 
behest of the Ranking Minority Member of the Judiciary Committee, have 
written that if the Spruce Creek Club can be used for business 
purposes, its exclusion of women would violate the Judicial Code of 
Conduct. The President of Spruce Creek Club has acknowledged that 
members of this club are allowed to host a variety of meetings on the 
premises, and

[[Page S7563]]

the committee has learned that business and political meetings have 
been held at the club. The Code of Judicial Conduct is clear that 
exclusion of women, minorities, and others from clubs where business is 
conducted is prohibited. In addition, in 1990, this committee adopted a 
resolution stating that membership in organizations that practice 
invidious discrimination was inappropriate for a judicial nominee. The 
resolution reflects our belief that because such membership ``may be 
viewed as a tacit endorsement of the discriminatory practices, it 
conflicts with the appearance of impartiality'' that is required of 
federal judges. We recognized that exclusion of women and racial, 
ethnic or religious minorities from social clubs that also perform 
business denies these groups opportunities to make contacts with 
important members of the community, contacts that are often crucial to 
professional advancement.
  I am also troubled by Judge Smith's approach to cases implicating 
Federal rights important to victims of discrimination, workers and the 
disabled, and his disturbing, consistent pattern of favoring business 
and employers in these cases. Judge Smith has been reversed 51 times by 
the Third Circuit, often by panels of conservative judges. In many of 
these cases, Smith takes a narrow view of the laws protecting 
plaintiffs against abuses by businesses and employers.
  For instance, in Wicker v. Conrail, a case brought under the Federal 
Employer's Liability Act, FELA, Judge Smith was reversed by the Third 
Circuit for dismissing claims by workers who were exposed to toxic 
chemicals at their job site. The company knew the job site was 
contaminated, but the workers did not, yet Smith found that the workers 
had waived their claims by signing a general release settling prior, 
unrelated injury claims. The Third Circuit reversed, holding that 
claims relating to unknown risks cannot be waived under FELA, and 
emphasized the Supreme Court's directive, ignored by Judge Smith, that 
FELA be given a ``proemployee'' construction.
  Similarly, in Ackerman v. Warnaco, the Third Circuit reversed Smith 
for granting summary judgment to the company with regard to ERISA 
claims brought by former employees who were denied promised severance 
pay after the company, unbeknownst to the workers, changed its written 
policy to deny severance pay shortly before laying off the workers. 
Again, in Unity Real Estate v. Hudson, Smith ruled against workers in a 
case concerning the Coal Industry Retiree Health Benefit Act. 
Amazingly, Smith held that coal act, which Congress passed in 1992 to 
require companies to enforce collective bargaining agreements promising 
lifetime health benefits for longtime workers, amounted to an 
unconstitutional taking. One year later, in a similar case, the Third 
Circuit effectively overruled Smith's holding on this score, noting 
that every Court of Appeals to have considered a ``takings'' challenge 
to the coal act had rejected it.
  In addition, Judge Smith has a disturbing pattern of ruling against 
plaintiffs in civil rights cases. For instance, in United States v. 
Pennsylvania, Judge Smith ruled that an institution for the mentally 
disabled, whose violations included serving pest-infested food, 
improperly confining residents, failing to provide appropriate medical 
treatment, and overmedicating residents--did not violate the 
Constitution's due process clause. In another case, Schaefer v. Board 
of Public Education, Judge Smith was reversed by the Third Circuit, for 
dismissing the sex discrimination claim of a male teacher who claimed 
that the school board's family leave policy, which entitled women, but 
not men, to one year of unpaid leave for childbirth or ``childrearing'' 
violated Title VII.
  Judge Smith's pattern of ruling in favor of business is particularly 
troubling when coupled with his frequent attendance at seminars funded 
by pro-business corporations and groups. Judge Smith spent more than 72 
days on junkets at luxury resorts. The trips were valued at more than 
$37,000 and sponsored by groups that promote ``free market 
environmentalism,'' and oppose environmental regulations. I am troubled 
by the appearance of partiality caused by Judge Smith's frequent 
attendance at such junkets given the pro-business pattern of his 
rulings.
  Judge Smith's narrow view of congressional power to pass legislation 
under the commerce clause, as expressed in a 1993 speech to the 
Federalist Society, also gives me great concern. In this speech, Judge 
Smith criticized the Violence Against Women's Act, which passed both 
Houses of Congress by overwhelming majorities, as exceeding Congress's 
power under the commerce clause. Judge Smith advanced a cramped reading 
of Congress' commerce clause power, stating that ``the Framers' 
primary, if not sole, reason for giving Congress authority over 
interstate commerce was to permit the national government to eliminate 
trade barriers.'' Not only would Judge Smith's reading of the commerce 
clause render Congress powerless to pass statutes like the Violence 
Against Women's Act but, under Judge Smith's reasoning, it appears that 
any Congressional enactment other than those aimed at eliminating trade 
barriers would be constitutionally suspect, including statutes such as 
the Fair Labor Standards Act, the Equal Pay Act, the Clean Air Act, and 
the Clean Water Act.
  In sum, I do not believe that Judge Smith has shown he has the 
integrity and commitment to core constitutional values required to 
justify his elevation to the Third Circuit. I therefore oppose his 
nomination.
  Mr. HATCH. Mr. President, I ask unanimous consent that I be allowed 
to speak as in morning business.
  The PRESIDING OFFICER (Mr. Schumer). Without objection, it is so 
ordered.
  (The remarks of Mr. HATCH are printed in today's Record under 
``Morning Business.'')
  Mr. HATCH. 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. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Reid). Without objection, it is so 
ordered.
  Mr. SCHUMER. Mr. President, I will say a word about the nomination of 
D. Brooks Smith to the Third Circuit. For me, my concerns with Judge 
Smith are not about ethics but about ideology. My questions are about 
his record. My worries are about what kind of judge he has been at the 
trial level and what kind of judge he will be at the appellate level.
  Time and time again, the President says he is going to nominate 
conservatives in the mold of Justices Scalia and Thomas. Every 
indication is that he is following through with that promise.
  At least by my standards, that is not OK. I certainly want legal 
excellence at the highest order. Diversity ought to be at the highest 
courts. We ought not have a bench of all like men. But I also want 
moderation and ideological balance. Unfortunately, as they nominate 
judge after judge, hard right, out of the mainstream, far further to 
the right than President Clinton's nominees were to the left, it is 
clear that this administration is committed to imbalance on the courts. 
Frankly, that is a strategy I cannot get behind.
  When it comes to D. Brooks Smith, there are some red flags raised. As 
a city district court judge, he gave a speech in which he criticized 
the constitutionality of the Violence Against Women Act, something I am 
pretty proud of because I was the author, along with Congresswoman 
Louise Slaughter in the House of Representatives. Senator Biden did a 
great job here in the Senate. Now, this was years before the Supreme 
Court had addressed the Violence Against Women Act and when there was 
still a possibility it would come before him as a judge. That is some 
very unjudge-like behavior.
  I asked him some simple, written questions about his views on the 
law. I asked him about his views on the right to privacy. I asked him 
to reconcile his views on VAWA with his views on other Federal laws 
such as the Endangered Species Act. The response I got, I regret to 
say, was inadequate.
  Judge Smith told me what the precedence said, not what he personally 
believes.
  That might be OK if you are a nominee to the district court where you 
do

[[Page S7564]]

not have as much of a chance to make law. These days when you are 
nominated to an appellate court, when the Supreme Court takes virtually 
75 cases a year, that argument does not fly. So I wrote back to Judge 
Smith, and again I asked him about his views. I made it clear I wanted 
to know about his personal views, not what the law was, but what his 
personal views were because we all know that influences a judge greatly 
when they make decisions.
  This idea that judges are part of an ideological system and read the 
law in the same way is poppycock.
  Why is it judges nominated by Democratic nominees read the law 
differently than judges nominated by Republican nominees? We know 
ideology plays a role. There is nothing wrong with that. But we ought 
to let it into our decisionmaking.
  Judge Smith dodged again.
  I think I am entitled to know what a nominee thinks. I am not going 
to go about blindly confirming nominees to lifetime seats on the 
Federal courts without those answers. I am not going to vote to give 
the judge a lifetime appointment, tremendous power, the most 
unaccountable power that our Founding Fathers gave to any single 
person. I am not going to give that judge the power to invalidate the 
laws passed in this legislative, duly elected body; laws that protect 
privacy, laws that protect working people, laws that protect women, the 
environment. I am not going to give a judge the power to validate those 
laws unless I know what they think of our power, the Congress's power 
as a coequal branch of Government, when it comes to these important 
issues.

  I have an obligation on behalf of the 19 million New Yorkers I 
represent to learn those views. They want to know if the judge is too 
far left or too far right. They want to know about things that affect 
their lives: How much money they are going to make; safety in the 
workplace; how the environment is going to be treated; and if they are 
a member of a minority group, how the judge regards civil rights. They 
want to know this. I want to know.
  I am not going to make the mistake that this body made with Clarence 
Thomas, who came before this body. I was not here then. I was in the 
House. We don't, of course, vote on judges. He said he had no views on 
Roe v. Wade. I am not making that mistake again. I don't think any 
Member should. We all know Judge Thomas had strong views on Roe v. 
Wade, but he came here and said he had none, he had never discussed it.
  If D. Brooks Smith had given me legitimate answers to my questions, I 
might have supported him. But his answers were not answers at all.
  Now, I understand we cannot ask judges to precommit themselves on 
issues that come before them, even though that is what Judge Smith did 
in his VAWA speech. I don't want to put nominees in that position. When 
it comes to issues already decided, when it comes to discussing their 
judicial philosophy, when it comes to Supreme Court cases that will 
never come before this judge, I don't get why we shouldn't know what 
that judge thinks.
  Every semester, first year law students are asked to critique Supreme 
Court opinions. But someone up for a Federal judgeship will not tell us 
what they think about the seminal Supreme Court cases?
  On the latest nominee for whom we had a hearing, Judge Owen, I asked 
her views. She said she doesn't think that way. She was asked to write 
papers in law school. She was asked to make opinions this way. She did 
not want to tell us.
  There is a trend here. There is a trend. They don't want us to know 
what they think because they are so far out of the mainstream that they 
never could get picked if they told us their real views. They would 
never get supported by this body. They will not be honest about their 
views regarding Brown v. Board of Education or Korematus v. United 
States or Miranda v. Arizona or Roe v. Wade?
  Judge Smith says what he thinks about the constitutionality of a 
statute the Supreme Court has yet to rule on, but he will not say what 
he thinks about Supreme Court opinions that have already been issued? 
Something is wrong with that. This nominee has it all turned around and 
it doesn't make sense.
  The fact is, we are in the midst of a conservative judicial 
revolution. The very same people who decried the liberal activists, who 
took too many things too far--I am very critical of some of those 
opinions--are now doing the same thing themselves. When the hard right 
members of the conservative movement in the 1980s realized they could 
only get so much of their agenda implemented through elected branches 
because they were too far over for the American people, they turned 
their focus to the courts. They started a campaign that ran through the 
Reagan administration, through the first Bush administration, and 
continues through this administration. President Bush would like to 
portray himself as a moderate to the American people. Maybe he is. When 
I talk to him he sounds that way to me, one-on-one.
  But if you look at who he nominates, there is hardly a moderate among 
them, particularly at the appellate court level. The nominees are 
committed to an ideological agenda which turns the clock back to maybe 
the 1930s, maybe the 1890s. They hate the Government and its power, by 
and large. They think the Federal Government has far too much power, 
which, let me tell you, in our post-September 11 world makes no sense.
  So for the better part of the last decade, the commerce clause has 
been under assault and a whole host of laws protecting women, senior 
citizens, the disabled, and the environment have been invalidated. Now 
they turn their attention to the spending clause. To the average 
person, this sounds like mine-numbing stuff. But unfortunately, it has 
real impact on real people and it has to stop.
  D. Brooks Smith is going to become a judge. We all know he has the 
vote. Tomorrow morning he will join a long line of judges, confirmed by 
the Senate, who appear to be intent on curtailing congressional power 
to protect the people who elect us.
  At some point this Senate needs to wake up to the fact that our 
President and his Department of Justice are playing by different rules 
when it comes to nominating judges. They are using ideology as litmus 
tests, and then, when we want to ask about ideology, they say no, that 
is off the table. They are doing it to the detriment of the courts and 
the people the courts are supposed to protect.
  I yield the floor.
  The PRESIDING OFFICER. In my capacity as a Senator from Nevada, I 
suggest the absence of a quorum.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Schumer). Without objection, it is so 
ordered.
  The PRESIDING OFFICER. Under the previous order, the Chair now 
recognizes the Senator from New Jersey, Mr. Torricelli.

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