[Congressional Record Volume 148, Number 107 (Wednesday, July 31, 2002)]
[Senate]
[Pages S7651-S7656]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF D. BROOKS SMITH TO BE UNITED STATES CIRCUIT JUDGE
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nomination,
which the clerk will report.
The legislative clerk read the nomination of D. Brooks Smith, of
Pennsylvania, to United States Circuit Judge for the Third Circuit.
The PRESIDING OFFICER. There are now 5 minutes evenly divided on the
nomination. Who yields time?
Mr. LEAHY. Madam President, we have at best a modicum of order in the
Senate, but I will proceed.
The record before us does not demonstrate that Judge D. Brooks Smith
merits a promotion to the Court of Appeals. He is already serving a
lifetime position as a Federal judge, but he continued as a member of a
discriminatory club more than a decade after he told
[[Page S7652]]
the Senate he would quit. He did not resign until 1999, and then only
after this vacancy on the Third Circuit opened up.
It should make no difference whether this club discriminated against
women, or people because of their race or creed; it is discriminatory.
He acknowledged that continuing in the club would be inconsistent with
ethical rules, but he continued to serve there, even after he told
Senator Heflin under oath in 1988 that under these rules he would be
required to resign.
I believe he did not keep his word. I think this is, frankly, the
kind of lapse that, had it been somebody nominated by the previous
President, my friends on the other side of the aisle would have voted
against him. I think they should vote against this one, even though he
is a member of their own party. We have the areas where he did not
recuse himself in a case where he had a clear conflict of interest. He
took special-interest-funded trips. I think his record as a whole calls
into question his sensitivity, his fairness, his impartiality, and his
judgment.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Madam President, we debated the issue of Judge Smith's
qualifications extensively last night. But by way of brief summary: He
has an excellent educational background. He practiced law for 8 years.
He served as district attorney of a major county in Pennsylvania. He
was a State court judge for 4 years, and in 1988 the bipartisan
judicial commission, which Senator Heinz and I had organized, found him
qualified. He has served in a very distinguished way for the past
almost 14 years on the Federal court in Pittsburgh. He is now the chief
judge of the Western District Court. His reputation is excellent. I
have known him for the past 14 years and can personally attest to his
integrity and his qualification.
When an issue is raised about not resigning from a club and the
contention has been made that there was false testimony under oath,
that simply is not supported by the facts. When Judge Smith came up for
confirmation in 1988, he made the statement that he would resign if he
could not change the rules of the fishing club, which was viewed at
that time as discriminatory because women were not permitted to join.
In 1992, there was a definitive ruling that a club which did not have
business purpose--which is the kind of club that this was--did not
practice what is called invidious discrimination. Since the club did
not practice invidious discrimination, Judge Smith did not have to
resign. Certainly it cannot be said that somebody made a false
statement under oath in 1988 when he had an intention at that time to
do precisely what he said.
When later circumstances arise, where there is a change of
circumstance, nobody can say that what he testified to in 1988 was
incorrect at that time, because the circumstances had changed.
When the argument is made that he resigned when a vacancy arose on
the Third Circuit, there were lots of vacancies on the Third Circuit in
the interim, so that if that was a motivating factor, he could have
resigned at an earlier time.
Judge Smith has brought to Washington a virtual army of people who
have supported him, including many women.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SPECTER. I urge my colleagues to vote for his confirmation.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Madam President, as much as I like and respect my
distinguished colleague from Pennsylvania, I believe Judge Smith did
not keep his commitment in testimony before the Senate, did not keep
his commitment to Senator Howell Heflin, a commitment that was made
under oath. This was the first opening of a Court of Appeals seat from
the Western District of Pennsylvania.
When I look at this, I look at the way he misled us in his initial
description of the club that he belonged to and then further misled us
in his intention. Frankly, I cannot support him. Every Senator can vote
how they want. I cannot vote for him.
Mr. KERRY. Mr. President, I regret that I will be opposing Judge
Smith's nomination. I regret that this nomination has become a
lightning rod for so many.
Let me state at the outset that I disagree very strongly with Judge
Smith's rulings on a number of cases. I find serious fault with his
stated comments on the Violence Against Women Act. In a 1993 speech,
Judge Smith told the Federalist Society that he viewed VAWA as
unconstitutional. The text of those remarks read in part ``There is no
legitimate constitutional source for this new-found `civil right' to be
free from physical violence.'' I cannot overstate my objections to his
callous view of domestic violence.
I understand that Judge Smith has received the American Bar
Association's rating of ``well qualified.'' I also understand that
Judge Smith has strong support across the political spectrum in western
Pennsylvania, his home. We have heard his friends in the Senate point
out that he is a respectful, friendly and unbiased judge. These are
important qualifications, and I do not doubt them. However, we must
look beyond such qualifications when considering a nomination of this
importance.
It is critically important that a judge on a Circuit Court of
Appeals, the court of last resort for the vast majority of cases, have
an ethically spotless record. In 1992, Judge Smith testified under oath
that he would leave the Spruce Creek Rod and Gun Club within a couple
of years if he could not change the rules of the club preventing women
members. He did not do that. It was not until the seat on the Third
Circuit Court of Appeals to which he now seeks appointment became
vacant that he resigned his membership in the club. To this day he
denies any wrongdoing. However, several prominent judicial ethicists
have pointed out that he clearly violated the Code of Conduct for U.S.
Judges.
There is a model for cases such as Judge Smith's involvement in the
Spruce Creek club. Judge Kenneth Ryskamp was denied an appellate court
seat in 1991 because of his membership in a country club whose bylaws
were uncertain regarding membership diversity. In 1986, he was
nominated to be a district court judge, he declared himself to be a
member of a club whose bylaws clearly exclude women. He also told the
Judiciary Committee that he would resign from that club. He did so
almost immediately. Unfortunately, this example stands in stark
contrast to the actions of Judge Smith.
Judge Smith also conducted himself poorly in not immediately recusing
himself from two cases involving Mid-States Bank which was both his
wife's employer and a bank in which he owned significant stock. During
his hearing he did agree that he erred in not recusing himself sooner,
which I do appreciate. But nevertheless, he exercised judgement that
was questionable at best.
The Court of Appeals is the court of last resort for thousands of
critical cases each year. Judges who serve there must be in the highest
moral standing. Judge Smith's failure to follow-through on a promise to
the Senate in a timely matter and his handling of cases involving Mid-
States bank are disappointing and call into question that moral
standing. Therefore, I reluctantly must oppose his nomination.
Mr. WELLSTONE. Mr. President, I speak today in opposition to the
nomination of D. Brooks Smith to the Third Circuit Court of Appeals. I
oppose the nominee because I believe serious questions have been raised
regarding his ethical integrity and judicial temperament. Mr. Smith
misled the Judiciary Committee in 1988 when he promised he would resign
from the all-male Spruce Creek Rod and Gun Club. Despite his promise,
and after the committee passed a resolution asserting that belonging to
exclusive clubs where business is conducted constitutes invidious
discrimination, Mr. Smith did not resign. In fact, he did not resign
until 1999, when the position on the Third Circuit opened up.
Mr. Smith appears to subscribe to a general judicial philosophy that
neglects the rights of women, institutionalized persons, consumers,
workers, prisoners and disabled persons. His judgments have been
reversed by the Third Circuit Court of Appeals 51 times--a larger
number of reversals
[[Page S7653]]
than any of the Appellate Court Nominees who have come before the
Judiciary Committee this Congress. Many of these reversals concerned
decisions affecting civil and individual rights and indicate a
disturbing lack of sensitivity and failure to follow established rules
of law and appellate court decisions when it comes to those rights.
I am particularly concerned about Mr. Smith's reported view that the
Violence Against Women Act is unconstitutional. I believe the Act is a
lifeline to women in danger around the country and find Mr. Smith's
view to be extreme. He is not in my view a suitable judge to serve one
level below the Supreme Court.
Ms. CANTWELL. Mr. President, I have carefully considered the record
of Judge D. Brooks Smith, who has been nominated to the Third Circuit
Court of Appeals, and it is with regret that I will be voting not to
elevate Judge Smith. While I believe that he is intellectually
qualified and personally respect, the fact remains that when he was
confirmed as a judge to the District Court by this committee in 1988,
Judge Smith stated under oath that he would follow the ethical rules
governing Federal judges and resign from a discriminatory club if he
was unable to change the men-only rule. Judge Smith failed to change
that rule, but did not resign from the Club until more than a decade
later, in December of 1999.
Since it became known that Judge Smith had not withdrawn from the
club, he has made an attempt to justify his inaction by claiming the
club is purely social and is thus does not engage in pervasive
discrimination. While I believe that there is little difference between
a club that affirmatively denies membership to women, and a club that
denies membership to African Americans or to people of a particular
religious affiliation, the issue is not whether or not the club's
discriminatory membership policies are or are not ``pervasive.'' The
issue is that Judge Smith told this Committee under oath that he would
resign from the club and he did not do so.
Federal judges are appointed to lifetime terms and the confirmation
process is the only democratic check on individuals conduct, unless he
or she is appointed to a higher position. If a promise to the Committee
like the one Judge Smith made can be so broken with no consequence,
then promises and assurances made by other nominees to this Committee
will mean very little.
I am also disturbed by Judge Smith's judicial decisions in the gender
discrimination context. In at least two cases, Judge Smith's
application of legal and constitutional standards for deciding gender
discrimination complaints raises serious concerns about his willingness
to reach decisions fairly and in a manner consistent with precedent in
the Third Circuit. In Shafer v. Board of Education, Judge Smith
dismissed the suit filed by a male teacher challenging his school
board's family leave policy which entitled women, and not men, to one
year unpaid leave for childbirth or ``childrearing.'' The Third Circuit
reversed, finding the policy to be in violation of the father's Title
VII rights. In Quirin v. City of Pittsburgh, Judge Smith interpreted
the law in a way that made it nearly impossible for the City of
Pittsburgh to remedy past discrimination in its hiring of only male
firefighters, and he applied the law in a manner inconsistent with
established precedent.
Judge Smith also has engaged in other questionable conduct. He has
exercised dubious judgment in failing to promptly withdraw from a case
that involved a bank in which he had a very significant investment, he
has attended more corporate funded trips than any other sitting federal
judge, and he has given speeches expressing his views of the
constitutionality of statutes that could be challenged in cases before
him. The combination of these factors suggests that Judge Smith simply
has ethical blind spots that call into question his suitability to
serve on the Circuit Court.
I am concerned by Judge Smith's failure to follow precedent and his
troubling record of reversals, and by his actions on the bench that
fail to meet the very highest standards of the legal profession. In
addition, his failure to promptly abide by the promise given to this
Committee in 1988 and withdraw from the Spruce Creek Rod and Gun club
is simply a failure that cannot be ignored. Therefore, I cannot support
his elevation to the Third Circuit.
Mr. HATCH. Mr. President, I stand in support of the confirmation of
D. Brooks Smith, who has been nominated to be a judge on the Third
Circuit Court of Appeals. Judge Smith is currently the Chief Judge for
the Western District of Pennsylvania. He has compiled an impressive
record as a judge since 1988, when, at age 36, he became one of the
youngest Federal judges in the country. Prior to that, Judge Smith has
served as a state court judge, as a prosecutor, and as a private
practitioner with a law firm in Altoona, Pennsylvania. He is a 1973
graduate of Franklin and Marshall College and a 1976 graduate of the
Dickinson School of Law in Pennsylvania.
Of course, anyone who has been reading the newspapers in the past few
months knows that it would be impossible to comment on Judge Smith's
credentials without mentioning the attack he has come under from the
usual liberal lobbyist interest groups in Washington. As President
Reagan would say, there they go again.
An editorial in Pittsburgh Post-Gazette noted,
Critics of Smith, many aligned with Democratic Party
interests, say he has been too quick to dismiss valid
lawsuits brought by individuals against corporations, and too
eager to travel to conferences paid for by businesses with
interests in federal litigation. . . . But outside
Washington's world of partisan poliitics, Smith seems to have
no enemies, only admirers. Those who have watched him work
say an exemplary 14-year record on the federal bench in
Western Pennsylvania is being twisted by political
opportunities. 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.
Well, it is an election year and we know the left of mainstream
groups will not miss an opportunity to flex their muscles.
Those groups who are working to discredit Judge Smith apparently
believe that President Bush's circuit court nominees deserve to have
their records distorted and their reputations dragged through the mud.
I think that no 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, that ``opposing a nominee should not mean destroying
him.''
Referring to our last confirmation hearing, 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 hope that my colleagues in the Senate 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 willing to put their talents to work in the
public service. Again, I fully support a thorough and genuine review of
a nominee's record and temperament, and in no way do I think we should
shy away from our constitutional role of providing advice and consent.
We did that in the case of D. Brooks Smith and have found him to be
one of the finist jurists serving today. The President was right to
nominate him, we will do well to confirm him.
Mr. DURBIN. Mr. President, I have the utmost respect for Senator
Arlen Specter. During the Clinton Presidency, Senator Specter angered
many in his own party by standing up to conservative special interest
groups and supporting well-qualified mainstream judicial nominees, many
of whom waited months or years for a confirmation hearing.
That said, Judge D. Brooks Smith of Pennsylvania has a track record
that troubles me. His conservatism is not in dispute, on display in a
1993 speech to the ultra-conservative Federalist Society criticizing
the Violence Against Women Act. He articulated a vision of
constitutional federalism directly at odds with Congress's power to
pass that important legislation, and many other important federal
initiatives to fight crime, such as the highly successful ``Weed and
Seed'' program. The Supreme Court subsequently invalidated a small
portion of the Violence Against
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Women Act, but Judge Smith's vision well exceeds the Court's own.
Judge Smith has also engaged in conduct that raises serious ethical
questions.
First, as you have heard, Judge Smith has a long association with a
prestigious private club that has a formal policy barring women from
membership. Exclusive clubs are serious business, forging important
commercial ties and blocking women from full opportunity in society.
Justice Sandra Day O'Connor, who was offered a job as a legal secretary
out of Stanford Law School, has endorsed limits on such clubs, noting
that the government has a ``profoundly important goal of ensuring
nondiscriminatory access to commercial opportunities in our society.''
We can debate back and forth the merits of whether the Spruce Creek
Club is or is not a ``purely social'' organization, at least one club
member told the Judiciary Committee investigator that he has attended
several business conferences at the club. For me, though, it is even
more significant that Judge Smith told this same Judiciary Committee in
1988 that he would comply with the ABA Code of Judicial Conduct and
resign from the club if it did not change its policies. To his credit,
he did try to change the policies. But he did not follow through on his
commitment and resign for 10 more years.
Second, as a district court judge, Judge Smith sat on two fraud cases
in which he and his wife had a conflict of interest. He did recuse
himself from these cases, but only after a period of time had passed in
which he was well aware of the conflict and continued to issue orders
in both cases. His defense, that none of the parties asked him to
recuse himself earlier, is weakened by the fact that he never told the
parties, before or after, of his $100,000 plus investment in the bank
in question.
Finally, I am troubled by Judge Smith's frequent attendance at
judicial seminars sponsored by special interest groups and funded by
corporations with litigation pending before his court. Most
importantly, he remains to this day unwilling to report the value of
those seminars on his financial disclosure forms and unwilling to
accept responsibility to be attentive to the corporate sponsors of
those seminars. Both of these positions are inconsistent with an
advisory opinion of the Judicial Conference's Committee on Codes of
Conduct.
For these, reasons, I am constrained to oppose Judge Smith's
nomination.
Mr. FEINGOLD. Mr. President, I will vote ``no'' on the nomination of
D. Brooks Smith to the U.S. Court of Appeals for the Third Circuit. Let
me take a few minus to explain my decision.
First, let me not that I did not reach this decision lightly. After
this vote, we will have considered 64 judicial nominations of President
Bush on the floor and I will have voted against only two. And this will
be the first Court of Appeals nominee I have voted against on the
floor. I voted against one other nominee in Committee, while I have
voted in favor of 12 circuit court nominations.
I also want again to commend the chairman of the Judiciary Committee
and the majority leader for the way that they have handled judicial
nominations. The pressure is intense, and the criticism quite harsh. It
is my view that a process that gives a nominee a hearing, and then a
vote in the committee, and then a vote on the floor is not an unfair
process; it is the way the Senate is supposed to work.
During the previous six years, the Senate, and the Judiciary
Committee did not work this way. Literally dozens of nominees never got
a hearing, as Judge Smith did, and never got a vote, as Judge Smith did
in committee and is about to on the floor. Those nominees were
mistreated by the committee. Judge Smith has not been mistreated. I
commend Chairman Leahy for doing what he can to set a new course on the
Judiciary Committee, even though most supporters of the President's
nominees do not give him credit for that.
I chaired the hearing that the Judiciary Committee held on Judge
Smith. He is obviously a very intelligent man, and talented lawyer. He
is personable and respectful. My opposition to his nomination is not
personal.
I oppose this nomination because I believe that Judge Smith has not
demonstrated good judgment on certain ethical issues. Beyond that, I
believe that he misled the Judiciary Committee when his conduct was
fairly questioned. These are serious issues, not trifles, not excuses.
I cannot in good conscience support his elevation to the Court of
Appeals.
People who came to our courts for justice don't get to pick their
judges. And, at least at the Federal level, they don't get to elect
judges. If our system is to work, if the people are to respect the
decisions that judges make, they have to have confidence that judges
are fair and impartial. Judges, more than any other public figures,
have to be beyond reproach. The success of the rule of law as an
organizing principle of our society is based on the respect that the
public has for judges. A legal system simply cannot function if the
public does not believe its judges will be fair and impartial.
That is why I have focused on ethical issues on a number of
nominations we have faced so far. I can't as a Senator assure my
constituents that every decision made by a judge will be one with which
they will agree, or even the correct one legally. But I should be able
to assure them, indeed, I must be able to assure them, that those
decisions will be reached fairly and impartially, that the judges I
approve for the Federal bench are ethical, and beyond that, that they
understand the importance of ethical behavior to the job that they have
been selected to do.
In 1988, Judge Smith was nominated to the Federal District Court in
Pennsylvania. He had a distinguished legal and academic record, and his
nomination faced no serious opposition. The one issue that aroused
controversy was his membership in a hunting and fishing club called the
Spruce Creek Rod and Gun Club that did not then, and does not today,
permit women to be members. Judge Smith told Chairman Biden in a letter
that he would try to convince the club to change its policy and if he
was unsuccessful he would resign from the club.
In answers to questions posed by Senator Schumer, Judge Smith stated:
``In my 1988 letter to the Judiciary Committee, I stated that I would
resign from the Spruce Creek Rod & Gun Club if it did not amend its by-
laws to admit women as members. I did not specify in my letter when I
would resign.''
But Judge Smith also testified before this committee, under oath, in
1988. Senator Howell Heflin asked what steps he would take to change
the restriction and how long he would wait. Judge Smith testified as
follows:
Well, first of all, Senator, I think the most important
step would be to attempt an amendment to the bylaws. Failing
that, I believe an additional step would and could be--and I
would support, and have indicated to at least one member of
the club that I would support and attempt--an application for
membership from a woman. Failing that, I believe that I would
be required to resign.
I think it would be necessary for me to await an annual
meeting which is, as I understand it--and I preface it with
``as I understand it'' because I have not been an active
member in any real sense of the word, but I believe there
to be an annual meeting every April--and I believe I would
have to await that point in time to at least attempt a
bylaws amendment.
Now I suppose that our former colleague Senator Heflin, who was a
State supreme court judge earlier in this career, could have nailed him
down even tighter than he did. But we don't have to do that in the
Judiciary Committee. The committee is not a court of law. We have a
right to rely on the clear implications of sworn testimony of nominees
who come before us. I believe everyone at that hearing, and everyone
reading it fairly today would conclude that Judge Smith promised that
he would resign in 1989, if he was unsuccessful in getting the club to
change its policies at the next annual meeting.
Judge Smith made that promise in October 1988. He was then confirmed
by the Judiciary Committee and by the full Senate. We learned after
Judge Smith was nominated to the Third Circuit last year that he didn't
resign from the club until 1999, eleven years later. Indeed, he didn't
resign until after a vacancy arose on the Third Circuit Club of Appeals
in which he was interested. This is what he wrote to the club when he
resigned on December 15, 1999:
After considerable thought, and not without a measure of
regret, I hereby submit my resignation from membership in the
Spruce
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Creek Rod and Gun Club, effective immediately. Certain of the
Club's exclusive membership provisions, which I do not expect
will change, continue to be at odds with certain expectations
of federal judicial conduct.
At this point, it certainly appears that Judge Smith recognized that
his continued membership in the club was not consistent with the Canons
of Judicial Conduct.
After he was nominated to the Third Circuit vacancy last year, Judge
Smith filled out of the Judiciary Committee's questionnaire. This is
how he responded to a question about membership in organizations that
disciminate:
I previously belonged to the Spruce Creek Rod and Gun Club,
a rustic hunting and fishing club which admits only men to
membership. I joined the club in 1982 largely for sentimental
reasons: it is where my grandfather taught me to fish when I
was seven or eight years old. I urged the club, through
letters to club officers personal contacts with members, to
consider changing its exclusive membership provision. These
efforts were unsuccessful. Eventually, in late 1999, I
voluntarily resigned my membership.
It is noteworthy that in this answer, Judge Smith makes no mention of
the argument that he and his supporters now advance, that he had no
obligation to resign from the club because it is a purely social club.
Only when questions began to be raised about his continued membership
did this argument arise.
Now I know that there is a dispute about whether business is
conducted at this club. To be honest, I tend to credit the email and
statements of Dr. Silverman, a supporter of Judge Smith, who said that
a medical PAC held meetings there, rather than his letter to the
committee saying that the events were just picnics, which was written
after he learned that what he had said might be damaging to Judge
Smith's confirmation. In my mind, if the club permits its members to
invite business associates to the club and hold business meetings
there, that is a club that should not discriminate against minorities
or women. And the president of the club has confirmed that members can
hold any meetings they want at the club.
But for me, that's not the crucial point. The crucial point is that
this nominee made a commitment to the Judiciary Committee under oath.
He broke that commitment. And then he compounded his problem by coming
up with an after-the-fact rationalization for why he broke his
commitment. Even if he were obviously correct that he need not have
resigned his membership, I still believe he was untruthful when he
suggested to the committee that the changes to the Code of Conduct in
1992 ``afforded me the opportunity to reexamine the entire Code and
consider it's application to my membership in Spruce Creek.'' I don't
believe that Judge believed between 1992 and 1999 that his obligation
had changed after 1992. If he did, I don't think he would have had, and
I am quoting from his written answers to Senator Schumer's questions:
numerous conversations with Club officers about changing the
by-laws. In fact, in practically every conversation I had
with members of the Club in which we talked of the Club, I
recall discussing the by-law issue and advocating change.
Why would he do that if he thought the club was not engaging in
invidious discrimination? And why would he say in his resignation
letter that the club's membership policies: ``continue to be at odds
with certain expectations of Federal judicial conduct''?
I have concluded that Judge Smith came up with his argument after
questions were raised about his failure to resign. Some in the Senate
may be convinced by this argument that they should ignore Judge Smith's
failure to follow through on his commitment to the Judiciary Committee
and the Senate in 1988. I cannot ignore that failure.
I am afraid that this is not the only instance where Judge Smith has
come up with after-the-fact rationalizations of his behavior that don't
hold up under scrutiny. At his hearing, I asked Judge Smith about
numerous trips he had taken to judicial education seminars paid for by
corporate interests. Judge Smith indicated that had studied and been
guided by Advisory Opinion No. 67, which instructs judges to inquire
into the sources of funding of such seminars before attending them in
order to be sure that there was no conflict of interest. I asked him if
before he went on the trips he had inquired about the source of funding
sponsored by The Foundation for Research on Economics and the
Environment, known as FREE, and the Law and Economics Center of George
Mason University, known as LEC. Judge Smith answered the question with
respect to FREE, saying that he remembered inquiring more than once
about FREE's funding by telephone.
So I asked him a follow-up question in writing about whether he made
a similar inquiry about the funding for seminars put on by the Law and
Economics Center at George Mason University. Judge Smith gave an
amazing answer. He said that because the trips were sponsored by a
university, he had no obligation to inquire about the source of
funding, and he claimed that he reached that conclusion in 1992 and
1993 when he was taking these trips.
Both ethics professors with whom I consulted state in no uncertain
terms that Judge Smith is wrong in his interpretation of the ethical
obligations of a judge who wishes to go on one of these trips. As
Professor Gillers states: ``Obviously, there would be room for much
mischief if a judge invited to an expense-paid judicial seminar could
rely on the non-profit nature of an apparently neutral sponsor to
immunize the judge's attendance. Judge Smith is therefore wrong in his
assumption.''
I believe if Judge Smith really reached this conclusion with respect
to LEC at the time of the hearing, he would have told us when he
answered my question at the hearing. His written response to the
follow-up question indicates that he in fact did not understand the
import of Advisory Opinion No. 67, then, or now. I find that very
troubling. It undercuts his assurances to me at the hearing that he
would refrain from taking additional trips until he was ``satisfied
that funding does not come from a source that is somehow implicated in
a case before him.'' I don't know how I can rely on that assurance.
In addition, there is the question of Judge Smith's failure to recuse
himself in two cases in 1997--SEC v. Black and United States v. Black.
These are very complicated cases, so I sought the advice of two legal
ethics experts. After reviewing Judge Smith's testimony and written
answers to questions and all of the other materials submitted to the
Judiciary Committee on this issue from both supporters and opponents of
Judge Smith, both Professor Gillers and Professor Freedman conclude
that Judge Smith violated the judicial disqualification statute, 28
U.S.C. Sec. 455, by not recusing himself earlier in SEC v. Black, and
by not recusing himself immediately upon being assigned the criminal
matter in United States v. Black. Professor Freedman called his
violations ``among the most serious I have seen.''
I was particularly disturbed by Judge Smith's failure to disclose his
financial interest in the bank involved in the case to the parties in
the criminal case. He told them about his wife's employment and that he
had recused himself in the civil case. But he didn't give the parties
full and complete information upon which they could base a decision
whether to ask him to recuse himself. This was Judge Smith's
obligation, in my view.
In my opinion, these ethical questions individually raise serious
concerns about Judge Smith's fitness to serve as a Circuit Court judge.
Together, they are very significant. I cannot support a nomination
plagued by such an ethical cloud, despite all of the heartfelt support
he has received. I will therefore, reluctantly, vote no.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Nevada.
Order of Procedure
Mr. REID. Madam President, on behalf of the majority leader, I ask
unanimous consent that following the vote on the matter now pending,
Judge Smith, we proceed to H.R. 5010, the Department of Defense
appropriations bill.
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. I object to proceeding until I see the managers'
amendment.
Mr. REID. There is no managers' amendment.
Mr. McCAIN. On DOD appropriations?
[[Page S7656]]
Mr. REID. No.
I yield to my friend from Alaska.
Mr. STEVENS. We offered a list of amendments to staff. We informed
the staff and we will be happy to show them the amendments when we see
the amendments that Senator McCain intends to offer.
Mr. REID. I also say that I misspoke. The majority leader does not
need unanimous consent on his behalf.
I say to my friend from Arizona, as we have talked on a number of
occasions on previous bills, any package of managers' amendments the
Senator from Arizona will have a chance to review.
I withdraw the unanimous consent request and announce on behalf of
the majority leader that following the vote on Judge Smith, the Senate
will move to H.R. 5010, the Department of Defense appropriations bill.
Mr. BYRD. Reserving the right to object, and I will not object, let
me say to the distinguished Senator from Arizona, that not only he will
see the managers' amendments, but I will insist on the managers'
amendments being read on all appropriations bills for the attention of
the full Senate.
Mr. McCAIN. Reserving the right to object, I thank the Senator from
West Virginia.
We have had many occasions where late at night managers' amendments
were agreed to without anyone ever having seen or heard of them. And I
would still like to see the managers' amendment before some time late
tomorrow night when everyone wants to get out of here and leave and I
am the bad guy again. I want to see what is in the managers' amendment
package.
It is not an illegitimate request to see the managers' amendment
package before they vote on final passage, which then puts us in the
uncomfortable position of having to be delayed. I think it is a fair
request on the part of the taxpayers of America to see what we are
voting.
Mr. REID. I yield to the Senator from Alaska.
Mr. STEVENS. Madam President, I am informed that 20 minutes ago those
amendments went to Senator McCain's office and we have not seen his
amendments. We ask that we see his amendments, too. We cannot put a
managers' package together until we see them all.
Mr. REID. Madam President, I ask the Senator from Arizona, do you
have any problem with DOD appropriations after this vote?
Mr. McCAIN. I don't.
I would like to say, any amendment that I have will be debated and
voted on. I don't have the privilege of proposing a managers'
amendment.
Mr. REID. Has the Senator withdrawn his objection?
Mr. BYRD. Parliamentary inquiry.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. The Senator does not need consent, does he? The consent has
already been given some days ago.
Mr. REID. As has been explained to me, the majority leader at this
time--and I--can call this up, but would have to be, as I understand
it, some later time.
I am asking for a time certain and that is why the Senator from
Arizona, as I understand, has no problem bringing it up after this next
matter.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. I ask for the yeas and nays on the pending nomination.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The question is, will the Senate advise and consent to the nomination
of D. Brooks Smith, of Pennsylvania, to be United States Circuit Judge
for the Third Circuit? On this question the yeas and nays have been
ordered and the clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES, I announce that the Senator from North Carolina (Mr.
Helms) is necessarily absent.
I further announce that if present and voting the Senator from North
Carolina (Mr. Helms) would vote ``Yea''.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 64, nays 35, as follows:
[Rollcall Vote No. 202 Ex.]
YEAS--64
Allard
Allen
Bayh
Bennett
Biden
Bond
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Carnahan
Carper
Chafee
Cochran
Collins
Craig
Crapo
DeWine
Domenici
Dorgan
Edwards
Ensign
Enzi
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchinson
Hutchison
Inhofe
Kohl
Kyl
Landrieu
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--35
Akaka
Baucus
Bingaman
Boxer
Cantwell
Cleland
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Leahy
Levin
Lieberman
Mikulski
Murray
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Torricelli
Wellstone
Wyden
NOT VOTING--1
Helms
The nomination was confirmed.
____________________