[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
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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.
____________________