[Congressional Record Volume 148, Number 149 (Monday, November 18, 2002)]
[Senate]
[Pages S11247-S11284]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        INNOCENCE PROTECTION ACT

  Mr. LEAHY. Mr. President, for more than 2 years, I have been working 
hard with Members on both sides of the aisle, in both Houses of 
Congress, to address the horrendous problem of innocent people being 
condemned to death within our judicial system. This is not a question 
of whether you are for or against the death penalty. Many of the House 
Members and Senate Members who have joined this effort are in favor of 
the death penalty. I suspect the majority of them are in favor of it. 
It goes to the question of what happens if you have an innocent person 
who is condemned to death.
  Our bill, the Innocence Protection Act, proposes a number of basic 
commonsense reforms to our criminal justice system; reforms that are 
aimed at reducing the risk that innocent people will be put to death.
  We have come a long way since I first introduced the IPA in February 
2000. At that time, we had four Democratic cosponsors. Now there is a 
broad consensus across the country among Democrats and Republicans, 
supporters and opponents of the death penalty, liberals, conservatives, 
and moderates, that our death penalty machinery is broken. We know that 
putting an innocent person on death row is not just a nightmare, it is 
not just a dream, it is a frequently recurring reality.
  Since the 1970s, more than 100 people who were sentenced to death 
have been released, not because of some technicality, but because they 
were innocent, because they had been sentenced to death by mistake. One 
wonders how many others were not discovered and how many innocent 
people were executed.
  These are not just numbers, these are real people. Their lives are 
ruined. Let me give an example: Anthony Porter. Anthony Porter was 2 
days from execution in 1998 when he was exonerated and released from 
prison. Why? Not because the criminal justice system worked. He was 
exonerated and released because a class of journalism students, who had 
taken on an investigation of his case, found that did he not commit the 
crime. They also found the real killer. A group of students from a 
journalism class did what should have been done by the criminal justice 
system in the first place.
  Ray Krone spent 10 years in prison. Three of those ten years were on 
death row waiting for the news that he was about to be executed. Then, 
earlier this year, through DNA testing, he was exculpated and the real 
killer was identified. These are two of the many tragedies we learn 
about each year.
  These situations result not only in the tragedy of putting an 
innocent person on death row, but they also leave the person who 
committed the crime free. Everything fails. We have the wrong person in 
prison. But we have not protected society or the criminal justice 
system because the real criminal is still out running free. Often 
times, the actual perpetrator is a serial criminal.
  Today, Federal judges are voicing concerns about the death penalty. 
Justice Sandra Day O'Connor has warned that ``the system may well be 
allowing some innocent defendants to be executed.'' Justice Ginsburg 
has supported a State moratorium on the death penalty. Another 
respected jurist, Sixth Circuit Judge Gilbert Merritt, referred to the 
capital punishment system as ``broken,'' and two district court judges 
have found constitutional problems with the Federal death penalty.
  We can agree there is a grave problem. The good news is that there is 
also a broad consensus on one important step we have to take--we must 
pass the Innocence Protection Act.
  That is why I wanted to let my colleagues know what is happening. As 
the 107th Congress draws to a close, the IPA is cosponsored by a 
substantial bipartisan majority of the House and by 32 Senators from 
both sides of the aisle, including, most recently, Senator Bob Smith of 
New Hampshire. A version of the bill has been reported by a bipartisan 
majority of the Senate Judiciary Committee. And the bill enjoys the 
support of ordinary Americans across the political spectrum.
  What would the Innocence Protection Act do? As reported by the 
committee, the bill proposes two minimum steps that we need to take--
not to make the system perfect, but simply to reduce what is currently 
an unacceptably high risk of error. First, we need to make good on the 
promise of modern technology in the form of DNA testing. Second, we 
need to make good on the constitutional promise of competent counsel.
  DNA testing comes first because it is proven and effective. We all 
know that DNA testing is an extraordinary tool for uncovering the 
truth, whatever the truth may be. It is the fingerprint of the 21st 
Century. Prosecutors across the country rightly use it to prove guilt. 
By the same token, it should also be used to do what it is equally 
scientifically reliable to do: to establish innocence.
  Just like fingerprints, in many crimes there are no fingerprints; in 
many crimes there is no DNA evidence.
  Where there is DNA evidence, it can show us conclusively, even years 
after a conviction, where mistakes have been made. And there is no good 
reason not to use it.
  Allowing testing does not deprive the State of its ability to present 
its case, and under a reasonable scheme for the preservation and 
testing of DNA evidence, it should be possible to preserve the 
evidence.
  The Innocence Protection Act would therefore provide improved access 
to DNA testing for people who claim that they have been wrongfully 
convicted.
  Just last week, prosecutors in St. Paul, MN, vacated a 1985 rape 
conviction after a review of old cases led to DNA testing that showed 
they had the wrong man--and also identified the actual rapist. Think 
how much better society would have been had they caught the real rapist 
17 years ago. The district attorney wanted to conduct DNA testing in 
two other cases, but the evidence in those cases had already been 
destroyed. She has called on law enforcement agencies to adopt policies 
requiring retention of such evidence, and that is what our bill would 
call for.
  Many cases have no DNA evidence to be tested, just as in most cases 
there are no fingerprints. In the vast majority of death row 
exonerations, no DNA testing has or could have been involved.
  So the broad and growing consensus on death penalty reform has 
another top priority. All the statistics and evidence show that the 
single most frequent cause of wrongful convictions is inadequate 
defense representation at trial. The biggest thing we can do is to 
guarantee at least minimum competency for the defense in a capital 
case.
  This bill offers States extra money for quality and accountability.
  They can decline the money but then the money will be spent on one or 
more organizations that provide capital representation in that State. 
One way or another, the system is improved.
  More money is good for the states. More openness and accountability 
is good for everyone. And better lawyering makes the trial process far 
less prone to error.
  When I was a State's Attorney in Vermont, I wanted those I prosecuted 
to have competent defense counsel. I wanted to reach the right result 
in my trails, whatever that was, and I wanted a clean record, not a 
record riddled with error. Any prosecutor worth his or her salt will 
tell you the same; any

[[Page S11248]]

prosecutor who is afraid of trying his cases against competent defense 
counsel ought to try a new line of work, because the whole system works 
better if both prosecutor and defense counsel are competent. That is 
what I wanted when I was prosecuting cases because I wanted to make 
sure justice was done.
  The Constitution requires the Government to provide an attorney for 
any defendant who cannot afford one. The unfortunate fact is that in 
some parts of the country, it is better to be rich and guilty than poor 
and innocent, because the rich will get their competent counsel, but 
those who are not rich often find their lives placed in the hands of 
underpaid court-appointed lawyers who are inexperienced, inept, 
uninterested, or worse.
  We have seen case after case of sleeping lawyers, drunk lawyers, 
lawyers who meet with their clients for the first time on the eve of 
trial, and lawyers who refer to their own clients with racial slurs.
  Part of the problem, I think, lies with some state court judges who 
do not appear to expect much of anything from criminal defense 
attorneys, even when they are representing people who are on trial for 
their lives. Good judges, like good prosecutors, want competent 
lawyering for both sides. But some judges run for reelection touting 
the number and speed of death sentences they have handed down. For 
them, the adversary system is a hindrance.
  The problem of low standards is not confined to elected State judges. 
Earlier this year, a bare majority of the Supreme Court held that it 
was okay for the defendant in a capital murder trial to be represented 
by the same lawyer who represented the murder victim. Most law students 
would automatically say that is a conflict of interest, but our Supreme 
Court said that was all right. And last year, a Federal appeals court 
struggled with the question whether a defense lawyer who slept through 
most of his client's capital murder trial provided effective assistance 
of counsel.
  Fortunately, a majority of the court eventually came to the sensible 
conclusion that ``unconscious counsel equates to no counsel at all,'' 
basically reversing what a State court said when it said the 
Constitution guarantees a person counsel. It does not guarantee they 
will stay awake.
  No law can guarantee that no innocent person will be convicted. But 
surely we can do better than this. Surely we can demand more of defense 
counsel than that they simply show up for the trial and remain awake. 
When people in this country are put on trial for their lives, they 
should be defended by lawyers who meet reasonable standards of 
competence and who have sufficient funds to investigate the facts and 
prepare thoroughly for trial. As citizens, we expect that of our 
prosecutors. We ought to expect the same thing of our defense 
attorneys. That is all we ask for in the IPA.
  I have heard four arguments against the bill. One wonders, with all 
these people from the right to the left, all these editorial writers 
and Members of Congress from both parties supporting the IPA, what that 
tells us.
  First, critics claim that the bill is an affront to States' rights. 
As a Vermonter, and as a former State prosecutor, I agree that States' 
rights are very important. States should have the right to set their 
own laws, free of Federal preemption at the behest of special 
interests. They should have the right to set their own budgets, free of 
unfunded mandates. And their reasonable expectations of Federal funding 
for criminal justice and other essential programs should be met, rather 
than bankrupting State governments because of Federal tax policy.
  The IPA is entirely consistent with these principles of State 
sovereignty. It leaves State laws, including the death penalty laws, in 
place. It offers States new funding for their criminal justice systems. 
And there was a provision added during the committee process 
establishing a student loan forgiveness program for prosecutors and 
public defenders, something that a lot of State governments say would 
help recruit and retain competent young lawyers.

  This is one of those cases, like in the civil rights era, where the 
rhetoric of States rights is being abused as a code for the denial of 
basic justice and accountability. Some States have made meaningful 
reforms, but many have not. They have had more than a quarter of a 
century and 100 death row exonerations to get their act together, but 
they have failed. As many in this body argued in 1996, when promoting 
legislation to speed up executions, justice delayed is justice denied. 
I agree with that. We cannot wait forever while innocent lives are in 
peril.
  I have heard a second argument against the IPA, which is that society 
cannot afford to pay for these reforms. The truth, however, is that we 
cannot afford to do otherwise if we want to maintain confidence in our 
criminal justice system. The costs of providing DNA testing and 
competent counsel are relatively small, especially when you compare 
them to the costs of retrials that are necessitated by the lack of 
adequate counsel at trial, or the cost of locking up innocent people 
for years or even decades. I am all for efficiency, but the greatest 
nation on Earth should not be skimping on justice in matters of life or 
death.
  I have heard a third argument from a vocal minority of State 
prosecutors. They claim the bill would make it unduly difficult, if not 
impossible, to seek the death penalty. That is a shocking claim. When I 
prosecuted cases, I felt very comfortable prosecuting those cases under 
the laws of our State because of two things: I knew that all the 
evidence we had, including potentially exonerating evidence, had been 
given to the defendant. And I knew I was working in a well-functioning 
adversarial system with effective representation on the other side. 
That is the way it is supposed to work.
  When I hear a prosecutor say that the IPA reforms--enabling DNA 
testing and securing adequate defense representation--would make it 
almost impossible for him to do his job, it makes me wonder what he 
thinks that job is.
  Finally, there is one more argument against the bill which is rarely 
stated out loud. I call it the ``innocence denial'' argument. We saw 
this in the Earl Washington case in Virginia where, despite conclusive 
DNA evidence to the contrary, the Commonwealth for years clung to the 
hopelessly unreliable and implausible confession of a mentally retarded 
man. We see it in claims that ``the system is working'' when an 
innocent man is released after years on death row due to the work of 
journalism students. And we see it in the often-repeated insistence 
that, no matter how many people have been exonerated, no one can prove 
that an innocent person has actually been executed.
  The innocence deniers will never concede there is a problem. But with 
100 known instances of the system failing--and those are only the ones 
we know about--it would be surprising if there were not more unknown 
cases of innocent people being sentenced to death.
  The IPA was passed out of committee in the Senate and is supported by 
a majority of the House. We ought to pass it before more lives are 
ruined.
  As a prosecutor, I never had any hesitation to seek the severest 
penalties our State could provide for people who committed serious 
crimes. When I look at some of the cases I have reviewed over recent 
years, when I see shoddy evidence, or when I see evidence that was not 
looked at because it might have pointed to someone else, I wonder, why 
wouldn't society want a better system? Passing the IPA will help fix 
these problems and give greater credibility to our criminal justice 
system.
  I yield the floor.
  I suggest the absence of a quorum and ask that the time be equally 
divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DeWINE. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   TRIBUTE TO SENATOR STROM THURMOND

  Mr. DeWINE. Mr. President, I rise today to recognize the 
accomplishments of our friend and colleague, Senator Strom Thurmond, an 
individual who has devoted his entire life to the service of the 
American people and who now stands before us as one of the most 
accomplished U.S. Senators in our nation's history.

[[Page S11249]]

  I must say that I am saddened that I am making these comments on the 
heels of a controversy over the nomination of a highly qualified 
judicial nominee, Dennis Shedd, who was a long-time member of Senator 
Thurmond's staff and who was recommended to the President for this 
appointment by Senator Thurmond. While I won't go into the specifics of 
these hollow arguments against Judge Shedd, I cannot make these 
comments in praise of Senator Thurmond without mentioning my 
disappointment about the handling of Judge Shedd's nomination.
  As our colleagues know, Senator Thurmond's nearly 50 years of service 
within this body make him the longest serving member since the Senate's 
inception, yet his contributions to public service and our Nation 
extend well beyond the United States Senate. From the time he served as 
Superintendent of Education in Edgefield, SC, Strom Thurmond placed the 
good of the Nation ahead of his personal career. He served over 36 
years on active and reserve duty within the U.S. Army, while 
simultaneously holding many other public service positions.
  Throughout, he was prepared to abandon his professional career on a 
moment's notice--ready to fight to preserve democracy and freedom. He 
was awarded five battle stars, as well as 18 decorations, medals, and 
awards, including the Bronze Star for Valor and the Purple Heart.
  I have only--I say ``only''--been in the Senate for 8 years, but in 
the relatively short time I have had the pleasure of serving in the 
Senate alongside Senator Thurmond, we have worked together as sponsors 
or co-sponsors of dozens of bills, including legislation enhancing 
local law enforcement efforts to protect the elderly and child victims 
of violent crime, drug interdiction efforts designed to stem the tide 
of drugs flowing into our cities and schools, laws to end the practice 
of partial-birth abortion, and constitutional amendments to protect 
victims of violence. All of these collaborative efforts have benefited 
a great deal from the insight Strom Thurmond developed during his 12-
year tenure as either chairman or ranking member of the Judiciary 
Committee and also, of course, his 50 years of service in this body.
  While Senator Thurmond's Senate career speaks volumes about his 
commitment to this nation and to the people of South Carolina and to 
all Americans, I also must mention what a pleasure it has been for me 
to know Strom Thurmond as a person.
  Over the years, he has shown great kindness and generosity to me and 
to my family. In particular, I would like to thank him for the 
hospitality he has shown my son, Brian, who recently graduated from 
South Carolina's Clemson University.
  When I told Strom my son Brian was going to go to Clemson, he beamed. 
I could tell he was delighted. He said, You know, I went to Clemson. Of 
course I knew that. He said, I went to Clemson. I asked, Strom, What 
year did you graduate?

  He said, I graduated from Clemson in 1923.
  I looked at him. I said, Strom, my dad was born in 1923.
  Strom Thurmond has had quite an unbelievable career. I have had the 
opportunity, as well, to listen to many of his stories. I asked him 
about his tenure at Clemson. He told me about the different times he 
would run barefooted from town to town. He was a long distance runner 
when he was there.
  The great Athenian general Pericles once noted that:

       Where the rewards of virtue are greatest, there the noblest 
     citizens are enlisted in the service of the state.

  Our American democracy, like that of the Athenians, is designed to 
reward virtue with the opportunity to represent and defend fellow 
citizens. Certainly there is no man of our time better fit for and 
dedicated to these difficult tasks than Strom Thurmond. Indeed, he is a 
tribute to the American ethic of public service that the framers of our 
nation envisioned over two centuries ago.
  It should come, then, as no surprise to my colleagues in the Senate, 
to the citizens of South Carolina, and to the American public that 
Strom Thurmond has left an indelible mark on our nation through his 
service--a mark that surely will never be forgotten or held in anything 
less than the highest regard.
  We thank Strom for his service to our country, to South Carolina, and 
to the people who will miss his kindness and his friendship. But we 
look forward to seeing him, as we are sure we will, for a long time 
because he is a man of great courage and great integrity. We will miss 
him.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I thank my colleague for his kind remarks 
about our great friend, Senator Thurmond. I have been around here 26 
years, and Senator Thurmond was the leader on the Judiciary Committee 
for most of that time. He has been a tremendous mentor and adviser to 
me.
  He is a wonderful man. He has gone through so many changes in his 
life, and he has had many different experiences in his life. He is 
truly a war hero and truly one of the people I think everybody in this 
body has to admire. There is no question about it. He is one of the 
all-time great Senators. He has represented the State of South Carolina 
for all of these years very well.
  I can remember traveling through the State with him. Just about 
everybody knew Strom, and he knew just about everybody in his State. It 
was absolutely amazing to me that a person could be so revered as Strom 
Thurmond was--and he deserved it.
  He is not only a great man, but he has done great things in his life. 
He has done great things having come from the Old South, which has been 
highly criticized by many of us in this Chamber.
  But let me just take a moment to pay tribute to my good friend and 
our distinguished colleague on this committee, the senior Senator from 
South Carolina, Strom Thurmond.
  From the moment Strom thurmond set foot in the Senate Chamber in 
1954, he has been setting records. He was the only person ever elected 
to the U.S. Senate on a write-in-vote. That is a reworkable 
achievement. He is the longest serving Senator in the history of the 
U.S. Senate. As he approaches his 100th birthday, he is also the oldest 
serving Senator. Many of my colleagues will recall the momentous 
occasion in September of 1998 when he cast his 15,000th vote in the 
Senate. With these and so many other accomplishments over the years, he 
has appropriately been referred to as ``an institution within an 
institution.''
  In 1902, the year Strom Thurmond was born, life expectancy was 51 
years and today --the last time I heard--it is 77 years. But I think it 
is going up regularly. Strom continues to prove that, by any measure, 
he is anything but average.
  He has seen so much in his life. To provide some context, let me 
point out that, since his birth, Oklahoma, New Mexico, Arizona, Alaska 
and Hawaii gained Statehood, and eleven amendments were added to the 
Constitution. The technological advancements he has witnessed, from the 
automobile to the airplane to the Internet, literally span a century of 
progress. Conveniences we have come to take for granted today were not 
always part of Strom Thurmond's world. Perhaps this explains why during 
our Judiciary committee hearings, we have heard him asking witnesses 
who were too far away from the microphone to ``please speak into the 
machine.''
  The story of his remarkable political career truly could fill several 
volumes. It began with a win in 1928 for the Edgefield County 
Superintendent of Schools. Eighteen years later, he was Governor of 
South Carolina. Strom was even a Presidential candidate in 1948, 
running on the `Dixiecrat' ticket against Democrat Harry Truman.
  I must admit that he has come a long way in his political career, 
given that he originally came to the Senate as a Democrat. I am happy 
to say that wisdom came within a few short years when Strom saw the 
light and joined the Republican Party.
  That was supposed to be humorous. But I did not hear any laughter.
  When I first arrived in the Senate in January of 1977, he was my 
mentor. As my senior on the Judiciary committee, it was Strom Thurmond 
who helped me find my way and learn how the committee functioned. He 
has not only been a respected colleague, but a personal friend, ever 
since.
  During his tenure as Chairman of the Judiciary committee, Strom 
Thurmond left an indelible mark on the

[[Page S11250]]

committee and the laws that came through it. He became known and 
respected for many fine qualities and positions--his devotion to the 
Constitution, his toughness on crime, his sense of fairness.
  He is also famous for his incredible grip. Many of us have 
experienced Strom Thurmond holding our arm tightly as he explains a 
viewpoint and asks for our support. I might add that this can be a very 
effective approach.
  Strom is also known to have a kind word or greeting for everyone who 
comes his way, and for being extremely good to his staff--and to all 
the workers here on Capitol Hill. No question. He has gone out of his 
way.

  I might add that I have seen him operate in his own home State and 
other places. I have seen him. He has operated in the most even-
mannered, decent, honorable way to people regardless of where they came 
from--regardless of their color, their religion, their country of 
origin, or any other distinguishing characteristic. Strom has always 
been good to everybody.
  Despite his power and influence, he has never forgotten the 
importance of small acts of kindness.
  Strom Thurmond is truly a legend--someone to whom the people of South 
Carolina owe an enormous debt of gratitude for all his years of 
service. Clearly, the people of South Carolina recognize the sacrifices 
he has made and are grateful for all he has done for them. In fact, you 
cannot mention the name Strom Thurmond in South Carolina without the 
audience bursting into spontaneous applause. He truly is an American 
political icon.
  Abraham Lincoln once said that:

       The better part of one's life consists of friendships.

  With a friend like Strom Thurmond, this sentiment couldn't be more 
true. I am a great admirer of Strom Thurmond, and, as everyone around 
here knows, I am proud to call him my friend.
  One final note about Strom Thurmond: He is a great patriot. I am 
grateful for his work with me over the years in support of a 
Constitutional Flag Amendment. A decorated veteran of World War II who 
fought at Normandy on D-Day, Strom Thurmond loves this country. He 
loves it very much. Let me just say this country loves him, too.

  Strom Thurmond is a wonderful father. He has raised his children to 
be very fine people. And they love him as well.
  When his daughter died, it was one of the most tragic things I have 
ever seen. It was the first and only time I ever saw Strom Thurmond 
shed tears. He is such a strong, resilient, patriotic leader. But on 
that day, at that funeral, Strom Thurmond broke down, which showed how 
much he loved his daughter and his family. I know how much he has. That 
is the mark of a great man.
  I am glad today, or at least by tomorrow, hopefully, this body will 
be able to give Strom Thurmond the only thing he has asked of us, as a 
last request, in return for his service: the confirmation of his former 
chief counsel, Judge Dennis Shedd, who himself is a wonderful, decent 
man.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, just so all Senators understand where we 
are, I have been told that the cloture vote that was scheduled for this 
afternoon has been vitiated. But we will be voting on the Shedd 
nomination sometime tomorrow morning.
  I see the distinguished Senator from Florida on the floor. Could he 
indicate how long he wishes to speak? I was about to begin the debate 
on the nomination.
  Mr. NELSON of Florida. About 10 minutes.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the 
distinguished Senator from Florida be recognized for 10 minutes, with 
the time divided equally. I make that request, that that 10 minutes of 
time be taken equally out of both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Florida is recognized for 10 minutes.


                         Technology and Freedom

  Mr. NELSON of Florida. Mr. President, I come to the floor not to 
speak on the Shedd nomination--and I had spoken to the chairman of the 
committee--but to speak about a matter we will be discussing tomorrow 
as we take up the homeland defense bill and some of the questions of 
privacy that have arisen, not necessarily directly involved in this 
bill but clearly in the discussion of homeland security.
  Some grave questions of invasion of privacy have been noted. So I 
felt compelled to take the floor of the Senate to raise further the 
issue of governmental intrusion into the private lives of people.
  I realize that in this technologically advanced age, in order to go 
after the bad guys, in order to be able to stop them before they hit 
us, clearly there has to be the clandestine means of penetrating the 
communications that are going on. That is very important to the defense 
of this country and our citizens. At the same time, the constitutional 
rights of privacy must always be foremost in our minds as we battle 
this new, elusive kind of enemy called the terrorist.
  So I want to offer some words. I start, first, with words from a very 
famous American who had something significant to say about privacy, 
Justice Louis Brandeis, in which he argued, in a 1928 case, that the 
Framers of our Constitution--and I will quote Justice Brandeis:

       . . . sought to protect Americans in their beliefs, their 
     thoughts, their emotions and their sensations.

  Justice Brandeis went on, that the Framers of the Constitution had:

       . . . conferred, as against the Government, the right to be 
     let alone--the most comprehensive of rights and the right 
     most valued by civilized man.

  Now, Justice Brandeis wrote those words in a dissenting opinion in a 
1928 case involving a liquor dealer who was convicted by evidence 
gathered through a wiretap, way back then, early in the last century. 
That case arose because technology had granted the Government an 
increased ability to peer inside people's private lives--then, in 1928, 
a wiretap.
  The technology increased governmental authority, forcing the Supreme 
Court to evaluate and redefine the boundaries between freedom and 
governmental power. The technological advances also stimulated an 
important national debate about the balance between individual freedom 
and the legitimate needs of law enforcement.
  Now we are at a similar crossroads, and those words ring out to us 
today as we go about trying to balance the rights between individual 
freedom and the legitimate needs of the Government to penetrate 
terrorist cells.
  Technology has advanced faster than the Nation's norms and the laws 
for managing them. Modern technology makes possible unprecedented 
intrusions into the private lives of American people. This ability, 
coupled with increasing governmental demands to use that technology, 
poses a grave threat to personal privacy and personal freedom.
  This past week, I was rivetted by the news of the revelations about 
how the Department of Defense is developing a computer system to grant 
intelligence and law enforcement authorities the power to secretly 
access ordinary citizens' private information, including e-mail, 
financial statements, and medical records--to access that private 
information without the protections of a court order.
  Clearly, in this post-9/11 world, we need to develop tools that will 
enable our Government to keep us safe from terrorists by disrupting 
their operations. But these tools need to be balanced against the 
protection of innocent people's right to privacy. If the right to 
privacy means anything, it is the right of the individual to be free 
from unwarranted governmental intrusion.
  So what rivetted my attention were reports, first in the New York 
Times, the Washington Post, and then in the Washington Times, that the 
so-called Total Information Awareness Program--located in DARPA, deep 
inside the Department of Defense--would make possible unwarranted 
governmental intrusions such as we have never seen before.
  It is disturbing that we are developing a research system that, if 
ever used, would violate the Privacy Act as well as violate a lot of 
other Federal laws on unreasonable searches of private information 
without probable cause, which is the typical standard

[[Page S11251]]

that needs to be met. That is why we go to a judge to get an order 
allowing us to intrude on such things as searches, as seizures, on such 
things as wiretaps.
  I have a serious concern about whether this type of program, called 
Total Information Awareness, can be used responsibly. So while we 
investigate and learn more about it, I intend to speak out to the 
Congress and to the committees on which I am privileged to serve--
including the Armed Services Committee--to speak out that we need to 
oversee this program to ensure that there is no abuse of law-abiding 
individuals' privacy.
  It has been reported that this program is authorized or endorsed by 
the homeland security legislation pending now in the Senate. And that 
does not appear to be the case. While it doesn't specifically tend to 
be the case, this legislation, the Homeland Security Department, does 
include a provision creating a research division within the new 
Homeland Security Department. It would develop, among other things, 
information technologies similar to the Total Information Awareness 
Program. While I strongly support funding for new research, and I 
certainly believe that we must use our technological advantage to 
defeat our enemies, at the same time I think we better take a breath, 
be very cautious that any new research done in the Defense Department 
or within the new proposed Department of Homeland Security does not 
threaten our personal freedoms.

  I also have grave concerns that this information awareness program is 
being directed by someone who is very controversial: Retired Rear 
Admiral Poindexter, the former Reagan administration official who was 
convicted in, you remember, the Iran-contra story. There is a very 
legitimate question about whether or not he is the appropriate person 
to head such a sensitive program.
  To quote from recent editions of the Washington Post, specifically 
November 16, an editorial:

       However revolutionary and innovative it may be, this is not 
     neutral technology, and the potential for abuse is enormous.

  The editorial continues:

       Because the legal system, designed to protect privacy, has 
     yet to catch up with this technology, Congress needs to take 
     a direct interest in this project.

  The editorial goes on:

       And the defense secretary should appoint an outside 
     committee to oversee it, before it proceeds.

  The editorial concludes:

       Finally, everyone involved might also want to consider 
     whether Adm. Poindexter is the best person to direct this 
     extremely sensitive project.
       Though his criminal convictions were overturned on appeal, 
     his record before the Congress hardly makes him an ideal 
     protector of the legal system. . . .

  That is the Washington Post.
  In conclusion, ever since I had the privilege to serve with the likes 
of these great Senate giants on the floor right now, Senators Leahy and 
Hatch, guardians of the Constitution because of their roles on the 
premier committee that guards the Constitution in the Senate, privacy 
is an issue that has attracted my attention and concern.
  Has my time expired?
  The PRESIDING OFFICER (Mr. NELSON of Nebraska.) The Senator's time 
has expired.
  Mr. NELSON of Florida. I ask unanimous consent that I conclude my 
remarks in 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Florida. I thank Senators for letting me make this 
case.
  When I first came here, I became concerned that back in 1999 we 
allowed banks and insurance companies to merge, but we didn't protect 
individual's privacy. It would shock people to know that if you go have 
a physical exam in order to get a life insurance policy and if that 
life insurance company is acquired by a bank, that the access to those 
individually identifiable medical records is unlimited, without your 
personal consent, to anywhere within that bank holding company.

  You might also be interested to know that recently we had the 
issuance of rules by the Bush administration on medical record privacy, 
but there was a huge omission in that pharmaceutical companies could go 
to drugstore chains, pay the drugstore chain for the names and ability 
to communicate to individual people who had prescriptions, and then 
that pharmaceutical chain could contact that individual patient, asking 
them, soliciting them to change their medication to a different kind of 
medication, one that would be within the generic equivalent or a 
different brand name than the one that the physician had prescribed for 
them. That is an invasion of personal privacy. Yet it is allowed under 
the rules of the new administration.
  Take, for example, the case 2 weeks ago in Fort Myers, FL. Suddenly a 
dumpster was overflowing with tax records, bank records, Social 
Security numbers, all kinds of personally identifiable financial 
information not properly disposed of by the bank subsidiary. The bank 
says there is no such law. So I filed a bill to protect individual's 
personal financial privacy.
  Lo and behold, another invasion of privacy, identity theft, one of 
the big things, more recently, in Orlando, FL--another dumpster. Now 
all of a sudden, one of the two large pharmaceutical drugstore chains 
dumps all of the prescriptions in the dumpster, along with the bottles. 
As a result, the personally identifiable medical information is there 
for the public to see from someone pilfering the dumpster.
  I think I have made my case. Privacy is something we better be 
concerned about.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, we have before us the nomination of United 
States District Court Judge Dennis Shedd of South Carolina to the Court 
of Appeals for the Fourth Circuit.
  Judge Shedd's nomination was reported out of the Judiciary Committee 
last Thursday on a voice vote. Nine Democratic Senators, including 
myself, voted against him. As I noted before, I told Senator Thurmond I 
intended to bring this matter to a vote by the committee this year. My 
concern at the penultimate meeting, the meeting before last week, a 
meeting we held in October, was that we had very little time to debate 
this controversial nominee and that threatened to prevent a committee 
vote on 17 other of the President's judicial nominees before the 
committee.
  Incidentally, those 17 district court nominees and 2 circuit court 
nominees were confirmed by the Senate last week. Those 17 district 
court nominees were on the Senate Calendar because the Senate Judiciary 
Committee was able to report those nominees despite unparalleled 
personal attacks by Republicans on me as chairman. Those attacks have 
included everything from saying I am not bringing up nominees--although 
I am and we are at a record rate that far outpaces the Republican rate 
during their six and one-half years of control--to even attacks in 
these recent months on my religious beliefs as well as the religion of 
several of the members of the Democratic majority on the Senate 
Judiciary Committee.
  Notwithstanding these unprecedented attacks on both our religious 
beliefs and our actions, the confirmations last week bring to 99 the 
number of President Bush's judicial nominees confirmed by the 
Democratic-led Senate in the past 16 months.
  I mention this because before that, during the 6\1/2\ years when the 
Republican majority controlled the Senate, they averaged 38 judicial 
confirmations per year. In fact, in the year 1996, over the whole year, 
they allowed only 17 district court judges to be confirmed all year and 
did not confirm a single circuit court nominee--not a single one. We 
had 17 district court judges in 1 meeting and those 17 nominees of 
President Bush were confirmed on one day last week by the Democratic-
led Senate.
  I put this in the record so the people understand the historic 
demonstration of my bipartisanship toward the President's judicial 
nominees in perspective with the recent history of judicial 
confirmations. The fact is that in addition to the 83 district court 
nominees confirmed, the Senate has also already confirmed 16 of his 
circuit court nominees. That is in sharp contrast to the fact that the 
Republicans allowed only 7 circuit court nominees to be confirmed per 
year, on average, during their control of the Senate. For example, more 
than half of President Clinton's circuit court nominees in the

[[Page S11252]]

106th Congress were defeated through such obstruction--more than half.
  In fact, the Fourth Circuit--to take one at random--is one of many 
circuits affected by the other party's obstruction of President 
Clinton's judicial nominees. In the Fourth Circuit, seven of President 
Clinton's nominees to that circuit were never given a hearing or a vote 
in committee or on the floor--seven out of that one circuit alone.
  James Beaty, one of the Fourth Circuit nominees of President Clinton, 
did not get a hearing or a vote in 1995, or 1996, or 1997, or 1998. 
Another Fourth Circuit nominee, Judge Richard Leonard, did not get a 
hearing or vote in 1995 or 1996.
  Another Fourth Circuit nominee, James Wynn, did not get a hearing or 
a vote in 1999, 2000, or 2001. Other Fourth Circuit nominees--Elizabeth 
Gibson, Judge Andre Davis, or Judge Roger Gregory--also did not get 
hearings or votes during the period of Republican control of the 
Senate.
  Indeed, the first hearing the Judiciary Committee held last year on a 
judicial nominee was for an earlier Fourth Circuit nominee, Judge Roger 
Gregory. He had been nominated initially by President Clinton when the 
Republicans were in control. They did not act on him. He was brought 
back by President Bush, and he became the first judge confirmed to the 
Fourth Circuit in several years. He was also the first African American 
confirmed to the Fourth Circuit in American history. That is because 
our committee in the Senate acted in the summer of 2001. Judge Gregory 
was the first of 20 circuit court nominees on whom we proceeded to hold 
hearings in our 16 months in the majority.
  So the partisan rhetoric about the Judiciary Committee having 
blockaded President Bush's judicial nominees and having treated 
nominees unfairly might be a good stump speech on the circuit, but it 
is belied by the facts. Frankly, I think the staff at the White House 
who have put those kinds of misstatements in the President's speeches 
have done the President a disservice, as they have the Senate.
  Turning to the nomination of Judge Dennis Shedd to the United States 
Court of Appeals for the Fourth Circuit, I cannot fail to note that it 
is not without controversy. In fact, it is quite controversial. Issues 
in his judicial record raised cause for concern among many Senators on 
the Judiciary Committee as well as with many citizens who live in the 
jurisdiction of the Fourth Circuit and elsewhere in the country who 
have written to the Senate in opposition to his elevation and 
confirmation.
  While considering the information gathered in the hearing process, I 
placed Judge Shedd's nomination on the committee agenda in September. 
That was my effort to show Senator Thurmond courtesy as a former 
chairman and to signal that I expected this committee to proceed to 
consider the nomination before the year was out. Several Senators asked 
to hold the nomination over, and under the rules any Senator can.
  On October 7, when I hoped to be able to list his name for 
consideration again, I was told there would be a debate so lengthy that 
we would not even be able to consider the 17 other judicial nominations 
of President Bush that were on the agenda or, for that matter, the 
legislative matters we were trying to take up before the election. So I 
told Senator Thurmond, and other Senators before that markup, it was 
for this reason that I would not list Judge Shedd's nomination on the 
agenda for the October 8 markup, but I explained to Senator Thurmond 
and others that I hoped we would be able to consider it at our next 
opportunity, as we knew at that point we would have a lame duck 
session. So now, having the lame duck session, I scheduled as soon as 
we came back and Senators would be here a markup on Judge Shedd and one 
other judicial nominee.
  The committee has received more than 1,200 letters from individuals 
and organizations, both in and out of South Carolina, expressing 
concerns about elevating Judge Shedd. In fact, right here, it stands 
about 2 feet high--the stack of letters we got against it. These 
letters raise serious issues. What I heard about the nominee from the 
citizens of South Carolina and from others around the country was and 
is troubling.
  I ask unanimous consent to have printed samples of letters such as 
those from citizens of South Carolina in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    South Carolina


                                     Legislative Black Caucus,

                                  Columbia, SC, September 4, 2002.
     Re Fourth Circuit Nomination of Judge Shedd.

     Hon. Patrick J. Leahy,
     Chair, Senate Judiciary Committee, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Senator Leahy: The South Carolina Legislative Black 
     Caucus (SCLBC) was formed in 1975 soon after the Civil Rights 
     Movement in the 1960's. Presently, the SCLBC has 31 members: 
     seven senators and 24 representatives, including four women. 
     The SCLBC is dedicated to the struggle for fairness, equality 
     and justice for all South Carolinians, and to the civic and 
     political involvement of African-Americans, women and other 
     racial and ethnic minorities.
       We seek to preserve the civil rights strides that occurred 
     in South Carolina over the decades, and we fight to prevent 
     any regressive step that threatens to rollback civil rights 
     and constitutional rights of American-Americans, women and 
     other racial and ethnic minorities. The nomination of U.S. 
     District Judge Dennis W. Shedd to the U.S. Court of Appeals 
     for the Fourth Circuit represents such a regressive step, and 
     accordingly, we strongly oppose the nomination.
       African-Americans constitute a full one-third of South 
     Carolina's population, yet there is only one active African-
     American federal judge in the state. And, there are only two 
     South Carolinian female federal judges, one on the federal 
     District Court and the other on the Fourth Circuit. This is 
     unfair and unjustified because there are many well-qualified 
     African-American and women jurists and lawyers who deserve an 
     opportunity to serve this nation on the federal judiciary.
       Because African-Americans are one-third of South Carolina's 
     population and the Fourth Circuit has a greater number of 
     African-Americans than any circuit, it is critical that any 
     nominee, especially one from South Carolina, be an unabashed 
     champion of civil rights. The appointee should have a record 
     that demonstrates fairness and justice to all people. Based 
     on our careful review of Judge Dennis Shedd's performance on 
     the U.S. District Court for the District of South Carolina, 
     we have concluded that his record shows a serious hostility 
     to civil rights and constitutional protections.
       Since his appointment to the federal bench in South 
     Carolina, Judge Shedd has engaged in right-wing judicial 
     activism by imposing strict and exacting standards when 
     reviewing employment discrimination cases brought by African 
     Americans and women. He has dismissed almost every employment 
     discrimination, sexual harassment, civil rights and 
     disability case that has come before him. Judge Shedd seems 
     to believe that discrimination is not an actionable offense 
     even when the Equal Employment Opportunity Commission has 
     found ``reasonable cause'' that discrimination has occurred. 
     Judge Shedd, however, seems to apply a more lenient standard 
     in reviewing discrimination cases brought by white men. Judge 
     Shedd has allowed four out of five ``reverse'' discrimination 
     cases to proceed beyond the summary judgment phase of 
     litigation.
       This record shows that Judge Shedd does not have an abiding 
     concern for civil rights and fairness. It further shows that 
     Shedd lacks the requisite moderate reasoning to bring balance 
     to the Fourth Circuit. In fact, his membership to the Fourth 
     Circuit would push it further beyond the mainstream of 
     American values and would subject South Carolinians and 
     residents of other states within the Fourth Circuit to an 
     extreme right-wing interpretation of this nation's civil 
     rights laws and constitutional protections.
       Accordingly, we oppose Judge Shedd's nomination without 
     reservation. His values represent the Old South, where 
     African Americans and women were judged by different and 
     unequal standards.
       We appreciate your attention. If you have any questions, 
     please contact me at the address and telephone number above.
           Sincerely,
                                                   Joseph H. Neal,
     Chairman.
                                  ____

         South Carolina State Conference, National Association for 
           the Advancement of Colored People,
                                      Columbia, SC, June 24, 2002.
     Senator Patrick Leahy,
     Chairman, Judiciary Committee, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Chairman Leahy: We write to oppose the nomination of 
     Dennis Shedd to the Fourth Circuit Court of Appeals.
       By now, you must be familiar with the importance of the 
     Fourth Circuit to the African American community. Almost a 
     quarter of the Fourth Circuit's residents are African 
     American. The Fourth Circuit, with over 6 million African 
     Americans in the five states, has the greatest number of 
     African Americans of any Circuit Court in the country. The 
     Latino population within the Fourth Circuit now at more than 
     one million persons, has nearly tripled in the last decade. 
     Based on

[[Page S11253]]

     these demographics, more may be at stake here for the future 
     of civil rights than in any other Circuit Court in the 
     country.
       The Fourth Circuit is already an extremely conservative 
     Court on civil rights and Constitutional issues. This Circuit 
     ruled that federal law-enforcement officials need not follow 
     the Miranda decision, only to be reversed by the Supreme 
     Court. This Circuit authorized drug testing for pregnant 
     women without their consent, which was reversed by the 
     Supreme Court. This Circuit ruled that the Equal Employment 
     Opportunity Commission was limited to remedies contained in 
     employee arbitration agreements, and again, was reversed by 
     the Supreme Court. The Circuit also has been reversed 
     recently in capital habeas corpus cases and citizen suits 
     under environmental laws. The Fourth Circuit has issued 
     numerous other opinions that are hostile to affirmative 
     action, women's rights, fair employment, and voting rights.
       This is also the Court to which moderate African American 
     nominees were repeatedly denied membership. No fewer than 
     four African Americans were nominated to this Court by 
     President Clinton, only to have their nominations languish 
     for years due to Senatorial obstruction. Thus, if a nominee 
     is to be confirmed to this Court, the nominee must be a 
     jurist who will bring moderation and ideological balance to 
     this Court. It is our strongly held view that this nominee is 
     not Dennis Shedd.
       Judge Shedd's judicial record reveals a deep and abiding 
     hostility to civil rights cases. A review of Shedd's 
     unpublished opinions reveals that Judge Shedd has dismissed 
     all but very few of the civil rights cases coming before him. 
     In nearly thirty cases involving racial discrimination in 
     employment, he granted summary judgment for the employer in 
     whole or in part in all but one case; most of the cases were 
     dismissed altogether. Many of these cases were strong cases 
     with compelling evidence and litigated by experienced civil 
     rights lawyers.
       Gender and disability discrimination cases before Judge 
     Shedd fare no better. He has granted summary judgment on 
     every sexual harassment claim on which summary judgment was 
     requested. Collectively, these rulings leave us with the 
     distinct impression that, in Dennis Shedd's view of the 
     world, discrimination does not exist, and just as 
     importantly, a jury should never be asked even to decide that 
     question.
       We are profoundly disturbed by the mounting evidence of 
     Judge Shedd's zealous efforts to assist the defense in civil 
     rights cases. There are repeated instances of Judge Shedd's 
     intervention in civil rights cases--without prompting by the 
     defendant--in ways that are detrimental to the plaintiff 
     case. In a number of cases, Judge Shedd, on his own motion, 
     has questioned whether he should dismiss civil rights claims 
     outright or grant summary judgment. He has invited defendants 
     to file for attorneys' fees and costs against civil rights 
     plaintiffs. These are not the actions of an impartial 
     decision-maker.
       We are extremely concerned about Judge Shedd's rulings 
     promoting ``States' rights,'' and view these as a fundamental 
     encroachment on Congress's ability to enact civil rights and 
     other legislation. Judge Shedd has a very restrictive view of 
     Congressional power. He struck down the Driver's Privacy 
     Protection Act of 1994 as legislation beyond Congress's 
     power, although this legislation was an ``anti-stalking'' 
     measure designed to prohibit public disclosure of drivers' 
     license information. In an opinion authored by Chief Justice 
     Rehnquist, the Supreme Court unanimously overturned Judge 
     Shedd's ruling and refuted his reasoning. This stands as one 
     of the few occasions in which the Supreme Court rejected 
     unanimously a holding that Congress exceeded its power in 
     enacting a statute.
       The question of judicial temperament is raised by Judge 
     Shedd's offensive remarks during a judicial proceeding about 
     an issue that strikes at the heart of many--the Confederate 
     flag. Judge Shedd presided over a federal lawsuit seeking the 
     removal of the Confederate flag from the dome of the South 
     Carolina Statehouse. According to press accounts of a hearing 
     held in the case, Judge Shedd made several derogatory 
     comments about opposition to the flag. First, he attempted to 
     marginalize opponents to the flag by questioning whether the 
     flag matters to most South Carolinians. (It does, and thirty 
     percent of South Carolina's population is African American.) 
     He also minimized the deep racial symbolism of the flag by 
     comparing it to the Palmetto tree, which appears in South 
     Carolina's State flag.
       Our membership in South Carolina, deserves to be 
     represented on the Circuit by a nominee who has a record of 
     judicial impartiality, is committed to the progress made on 
     civil rights and individual liberties, and has a deep respect 
     for the responsibility of the federal judiciary to uphold 
     that progress. Dennis Shedd is not that nominee. We urge you 
     and the Senate Judiciary Committee to vote against his 
     nomination.
            Sincerely,
                                                    James Gallman,
                                                        President.

  Mr. LEAHY. We received a letter from the Black Leadership Forum, 
signed by many well-respected African Americans, including Joseph 
Lowery, and more than a dozen more internationally known figures, as 
well as letters from other African American leaders.
  I ask unanimous consent that these letters be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 Black Leadership Forum, Inc.,

                               Washington, DC, September 16, 2002.
     Hon. Ernest F. Hollings,
     Member of the Senate, Senate Russell Office Building, 
         Washington, DC.
       Dear Senator Hollings: We are writing to share with you a 
     letter which the Black Leadership Forum, Inc. (BLF), whose 
     members are listed on the left side of this page, delivered 
     several weeks ago to members of the Senate Judiciary 
     Committee. The attached letter strongly opposes the 
     nomination of Judge Dennis Shedd to a seat on the Fourth 
     Circuit Federal Court of Appeals, for the reasons stated in 
     substantial detail.
       It has come to our attention that you are actively 
     supporting Mr. Shedd's nomination and are aggressively 
     pressing the Judiciary Committee for speedy approval of a 
     hearing on his nomination by the full Senate. Therefore, we 
     feel that it is urgent for you to be directly informed by BLF 
     of the bases for our objections to this nomination. We 
     reflect in this letter the deep concern in the African 
     American community about this nomination because Mr. Shedd's 
     judicial record undercuts our closely guarded values of equal 
     justice and threatens the maintenance of our civil rights 
     advances and constitutional protections.
       Conversations with numerous African Americans who also are 
     resident-constituents of your District, indicate that they, 
     too, believe that this nomination should not go forward. We 
     sincerely hope, therefore, that we can meet with you 
     regarding our objections to Mr. Shedd's nomination and that 
     until we have had this discussion, you will forego any 
     further actions supporting his nomination. We have called 
     your office requesting such a meeting prior to a vote by the 
     Judiciary Committee on this issue.
           Love Embraces Justice,
     Dr. Joseph E. Lowery,
     Dr. C. DeLores Tucker,
     Yvonne Scruggs-Leftwich, Ph.D.
                                  ____



                                        Rainbow Push Coalition

                                     Chicago, IL, August 24, 2002.
     Senator Patrick Leahy,
     Member, U.S. Senate, Washington, DC.
       Dear Senator Leahy: Let me lend my voice of opposition to 
     the chorus of discontent surrounding the nomination of Judge 
     Dennis Shedd to the Fourth Circuit Court of Appeals. I urge 
     you to oppose the Shedd nomination, based on the merits, and 
     the merits alone. A seat on the Fourth Circuit is too 
     important to the nation's judiciary not to be heavily 
     scrutinized.
       As a native of South Carolina, I am deeply disturbed by the 
     direction taken by the Fourth Circuit in recent years. As a 
     Judicial Circuit with considerable influence on the Supreme 
     Court, those elevated to the Court should reflect the highest 
     American ideals of inclusion and equal protection under the 
     law. Moreover, the states included in the Fourth Circuit are 
     comprised of the highest percentage of African Americans, 
     than any other Circuit, thus judges on the Court must be 
     sensitive and respectful for the civil rights laws for which 
     we fought so hard.
       Currently, the Fourth Circuit is the most extremist court 
     in the nation on civil rights issues, criminal justice 
     issues, and those involving the power of the federal 
     government, to enact legislation, which holds States 
     accountable for civil rights violations. The nomination of 
     Dennis Shedd threatens to take the Court in a further 
     extremist direction. For example, Judge Shedd's opinion in 
     the Condon v. Reno case suggests that he favors disempowering 
     Congress. American judges, and their rulings should protect 
     rights, rather than restrict the balance of power.
       To preserve this nation's ideals of inclusion, and to 
     ensure equal protection under the law for all Americans, I 
     urge you, and other members of the members of the Senate 
     Judiciary Committee to vote ``No'' on the nomination of 
     Dennis Shedd.
           Sincerely,
     Reverend Jesse L. Jackson, Sr.
                                  ____



                                     National Bar Association,

                                Washington, DC, September 4, 2002.
     Re Nomination of Judge Shedd, United States Court of Appeals 
         for the Fourth Circuit.

     Hon. Patrick Leahy,
     Chairman Senate Judiciary Committee, Dirksen Office Building, 
         Washington, DC.
       Dear Senator Leahy: The National Bar Association hereby 
     submit this letter in strong opposition to the confirmation 
     of Dennis Shedd to the United States Court of Appeals for the 
     Fourth Circuit. We strongly urge you to vote to defeat his 
     appointment to this critical Court.
       The National Bar Association, established in 1925 is the 
     oldest and largest organization of minority attorneys, 
     judges, legal scholars and law students in the United States 
     and in the world. During our 77 year history we strive to 
     obtain equal justice for all persons within the jurisdiction 
     of these United States of America. Real diversity can only be 
     achieved as a result of equal justice for all which directly 
     results in equal opportunity. Real diversity, equal justice, 
     and equal opportunity does not currently exist in our federal 
     judiciary.
       The National Bar Association maintains a watchful eye on 
     federal judicial nominations, as part of its' historical 
     mission. We

[[Page S11254]]

     have a duty and obligation to support or oppose any 
     nomination which directly affects our struggle for equal 
     justice and equal opportunity for all. During these difficult 
     times, the United States of America must set an example to 
     the world by assuring equal justice and equal opportunity to 
     a truly diverse nation.
       The National Bar Association feels, confirmation of Dennis 
     Shedd to the United States Court of Appeals for the Fourth 
     Circuit will severely undermine and inhibit its' goals of 
     equal justice for all, equal opportunity for all, and real 
     diversity. In our opinion the one thing which insulates the 
     United States of America from anarchy, civil strife, etc. is 
     our Construction (as currently amended), which provides an 
     open judiciary, where any citizen regardless of race, creed, 
     color, gender, economic status, social status, etc. can seek 
     redress. Absent an open federal judiciary, citizens will seek 
     other less civil means to voice their concerns and seek 
     redress. An open judiciary is the balance for the scales of 
     justice.
       The essential element of an open judiciary is our 
     constitutional right to trial by jury. This right provides 
     some assurance of fair and equitable treatment in resolution 
     of disputes, without political influence of the government. 
     Therefore, we must oppose federal judicial nominees, when 
     their actions or beliefs, in any way reduce complete access 
     to the courts, right to trial by jury, or in any way 
     discourage access and right to trial by jury.
       A review of Dennis Shedd's record appears to indicate a 
     judicial philosophy to reduce and discourage access to the 
     courts and exercise of each citizens right to trial by jury. 
     For these reasons, the National Bar Association strongly 
     opposes nomination of Dennis Shedd to the United States Court 
     of Appeals for the Fourth Circuit.
           Sincerely,
                                              Malcolm S. Robinson,
     President.
                                  ____

                                         The National Black Caucus


                                         of State Legislators,

                               Washington, DC, September 19, 2002.
     Re Fourth Circuit Nomination of Judge Shedd.

     Hon. Patrick J. Leahy,
     U.S. Senate, Chair, Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Senator Leahy: The National Black Caucus of State 
     Legislators (NBCSL) is the body that represents some 600 
     African American state legislators in 44 states, the District 
     of Columbia and the U.S. Virgin Islands. Last year, we 
     celebrated our 25th year of involvement and dedication to 
     many of the most pressing social issues and policies that 
     impact our legislators' districts and the nation at large. 
     Our commitment is to our constituents as well as the national 
     agenda. Our dedicated work is to maintain the highest values 
     of civil and human rights insuring that African Americans are 
     a fair and representative part of the political and social 
     equations of this great nation.
       In their letter to you, dated September 4, 2002, members of 
     the South Carolina Legislative Black Caucus have spoken 
     clearly and definitively in opposing the nomination of Judge 
     Dennis Shedd to the Fourth Circuit. In reviewing the 
     information presented therein and having also researched the 
     history and record of Judge Shedd, we find it woefully 
     deficient regarding the issues of fairness, equality and 
     justice. Moreover, as has been pointed out by our colleagues 
     in South Carolina ``African Americans constitute a full one-
     third of South Carolina's population yet there is only one 
     active African American federal judge in the state.'' In that 
     there are unquestionably ``many, well-qualified African 
     American .  .  . jurists'' in South Carolina, this is rightly 
     seen an unfair and unequal treatment in the sight of fair 
     representation. Further, considering the existent 
     disproportionate representation of jurist of Color, certainly 
     an effort must be made to insure that any South Carolina 
     nominee be a strong advocate of civil and human rights. 
     Rather, Judge Shedd's performance on the U.S. District Court 
     for the District of South Carolina demonstrates what could be 
     construed as hostile to civil and constitutional rights.
       We have learned that Judge Shedd's insensitivity to 
     fairness has been demonstrated in his review of employment 
     discrimination cases brought by African Americans and in 
     fact, women, even in such cases when the Equal Opportunity 
     Commission has found ``reasonable cause.'' But, we have also 
     found that in furtherance of this questionable action, when 
     white men bring cases of ``reverse'' discrimination, those 
     cases proceed. We also note that there have been concerns 
     raised about the number of unpublished opinion issued by the 
     Judge and further that such concerns regarding the decisions 
     were reversed or vacated by the Fourth Circuit Court of 
     Appeals.
       The Fourth Circuit must have a judge who is mindful of the 
     rightful place that African Americans have in this nation, 
     and be a strong advocate of civil rights, human rights and 
     constitutional rights. Any nominee should have demonstrated 
     his dedication to such virtues and ideals. No other 
     individuals should be considered for this important position.
       For these reasons among others raised by our South Carolina 
     Legislative Black Caucus, we cannot support the nomination of 
     Judge Dennis Shedd for the Fourth Circuit and would ask that 
     the opinion of our body be strongly considered in this 
     matter. Should you have any questions, or require additional 
     comment, please contact me.
           Very truly yours,
                                                  James L. Thomas,
     President.
                                  ____

                                        Congressional Black Caucus


                                of the United States Congress,

                                    Washington, DC, July 26, 2002.
     Hon. Patrick Leahy,
     Chairman, Senate Judiciary Committee, Washington, DC.
       Dear Senator Leahy: On behalf of the Congressional Black 
     Caucus, we write to express our strong opposition to the 
     confirmation of Dennis Shedd to the United States Court of 
     Appeals for the Fourth Circuit. We urge you to vote to defeat 
     his appointment to this critical court.
       The Fourth Circuit has the highest percentage of African-
     American residents of any federal circuit in the nation. As 
     you know, President Clinton tried in vain for many years to 
     integrate the Fourth Circuit by nominating no fewer than four 
     moderate African-Americans to the court, only to see their 
     nominations languish. James Beaty and James Wynn from North 
     Carolina, Andre Davis from Maryland and Roger Gregory from 
     Virginia were never given hearings before the Judiciary 
     Committee at any time during the Clinton presidency. It was 
     not until President Clinton took the extraordinary step of 
     giving Roger Gregory a recess appointment in the final days 
     of his Presidency that the last all-White circuit court in 
     the nation was finally desegregated.
       The Fourth Circuit is also the most conservative of the 
     federal circuits. Its rulings on the rights of those accused 
     of crimes, employees who face discrimination, and individuals 
     with disabilities are far outside the judicial mainstream. 
     Given the importance of the Fourth Circuit to the African-
     American community and the current ideological imbalance on 
     the Court, it is imperative that any nominee to this Court be 
     a jurist of moderate views who will protect the civil and 
     constitutional rights of all Americans. Dennis Shedd is not 
     that nominee.
       Above all, we are concerned that any nominee to the Fourth 
     Circuit be committed to the rigorous enforcement of federal 
     civil rights laws. We are particularly troubled by Dennis 
     Shedd's record in this area. Throughout his eleven years on 
     the federal district court, Judge Shedd has demonstrated a 
     propensity to rule against plaintiffs in civil rights cases. 
     Based on our review of Judge Shedd's record, we doubt 
     seriously whether he can fairly and impartially adjudicate 
     the claims of persons protected by the federal civil rights 
     laws.
       Despite the fact that employment discrimination cases 
     comprise a large portion of Judge Shedd's civil rights 
     docket, Judge Shedd has allowed only few discrimination 
     plaintiffs to have their day in court. In almost every case, 
     Judge Shedd has dismissed some or all of the claims of civil 
     rights plaintiffs before they have a chance to be heard by 
     the jury. By all evidences, Judge Shedd utilizes an extremely 
     high threshold of evidence necessary to allow a 
     discrimination claim to get to the jury. For example, in the 
     one race discrimination case in which Judge Shedd did not 
     dismiss at least some of the plaintiff's claims, a White 
     manager terminated an African-American female employee after 
     directing racial epithets at her in the presence of a co-
     worker. Even with this evidence, Judge Shedd said it was an 
     ``extremely close question'' whether the case should be 
     dismissed. Given Judge Shedd's characterization of the 
     evidence in this case, we question his commitment to 
     following decades of case law recognizing that discrimination 
     often occurs in much more subtle but no less pernicious forms 
     and therefore may proven circumstantially. In contrast to 
     Judge Shedd's systematic dismissal of claims by African-
     American plaintiffs, Judge Shedd has allowed ``reverse 
     discrimination'' claims by White men to proceed to trial in 
     four of the five cases in which summary judgment was 
     requested.
       Also, in a number of cases, Judge Shedd has overruled a 
     magistrate's recommendation to allow claims to be tried to a 
     jury. In one case, a magistrate concluded that a female 
     corrections officer could pursue her claim for ``outrageous 
     conduct'' where her supervisor subjected her to repeated 
     requests for sex, lewd language, and physical contact, and 
     told her co-workers that he was having an affair with her and 
     that she was pregnant with his child. The conduct occurred 
     not only in the workplace but by telephoning the plaintiff at 
     home and by visits to the plaintiff's house, which the 
     supervisor said he could visit ``anytime he wanted.'' Judge 
     Shedd dismissed the claim, stating that while the defendant's 
     actions were ``certainly disgusting and degrading,'' they did 
     not rise to the level of outrageous conduct.
       Judge Shedd's narrow and restrictive view of civil rights 
     claims is also evidenced by his dismissal of several cases in 
     which the Equal Employment Opportunity Commission had found 
     ``reasonable cause'' to believe that discrimination occurred. 
     A finding of ``reasonable cause'' by the EEOC is extremely 
     rare (occurring in fewer than 10 percent of the cases filed). 
     Thus, the fact that Judge Shedd has refused to allow many of 
     these claims to get to the jury strongly suggests that Judge 
     Shedd utilizes an exceedingly high threshold for proving 
     unlawful discrimination. The endorsement of such a

[[Page S11255]]

     restrictive standard that is far outside the mainstream of 
     federal jurisprudence has devastating implications for all 
     civil rights plaintiffs if Judge Shedd is confirmed to the 
     Fourth Circuit.
       At his June 27 hearing, Judge Shedd admitted that, during 
     his eleven years on the bench, a plaintiff has never won an 
     employment discrimination jury trial in his court. He 
     defended this record by asserting that he could not recall a 
     plaintiff ever winning a jury trial in a discrimination case 
     in any court in South Carolina. However, we have subsequently 
     learned that during Shedd's tenure on the bench, there have 
     been at least twenty-one jury verdicts favorable to 
     discrimination plaintiffs in other federal courts in South 
     Carolina, yielding over $7 million in damages. Shedd's lack 
     of awareness of the outcome of these numerous cases evidences 
     a troubling indifference toward the type of civil rights 
     cases with which, by virtue of his docket, he should be the 
     most familiar.
       Another area of grave concern to us is Judge Shedd's narrow 
     view of Congressional power to enact protective legislation. 
     We believe that Judge Shedd has the worst federalism record 
     of any nominee considered by the Judiciary Committee thus 
     far. At the same time, the Fourth Circuit has been the most 
     active federal circuit in curtailing federal power, 
     invalidating many portions of important federal legislation 
     in recent years. Judge Shedd's record in this area signals he 
     will join this Circuit's aggressive efforts to alter the 
     balance of federal and State power in a way that threatens 
     enforcement of our most cherished civil rights laws.
       Judge Shedd authored the original district court opinion in 
     Condon v. Reno, striking down the Driver's Privacy Protection 
     Act based on his belief that the federal government did not 
     have the power to require States to ensure that State 
     driver's license records would remain private. Although the 
     Fourth Circuit affirmed Judge Shedd's decision, the Supreme 
     Court unanimously reversed the holding in a decision by Chief 
     Justice Rehnquist. In an unpublished opinion, which usually 
     signifies a routine decision, Judge Shedd struck down part of 
     the Family and Medical Leave Act, holding that the Eleventh 
     Amendment doctrine of state sovereign immunity prevents an 
     employee from suing a State agency for a violation of that 
     statute. This issue--because it calls into question 
     Congress's power to remedy sex discrimination in the 
     workplace--has profound implications for Congress's authority 
     under Section 5 of the 14th Amendment.
       Judge Shedd has demonstrated a reluctance to sanction law 
     enforcement for crossing the line. In a recent criminal case, 
     a deputy sheriff and a State prosecutor videotaped a 
     constitutionally protected conversation between a lawyer 
     and a defendant charged with a capital crime. The 
     defendant was convicted in state court, but the South 
     Carolina Supreme Court overturned the conviction on the 
     basis of the videotape, calling it ``an affront to the 
     integrity of the judicial system,'' and stating that 
     ``[t]he right to counsel would be meaningless without the 
     protection of free and open communication between client 
     and counsel.'' Judge Shedd presided over the federal cases 
     arising from a grand jury's investigation of the matter. 
     When the deputy offered a guilty plea, Judge Shedd 
     reportedly questioned it because he did not believe a 
     civil rights violation occurred. Judge Shedd imposed only 
     a $250 fine on the deputy and remarked at his sentencing 
     hearing that ``[the deputy] is caught up in a situation in 
     which there's at least part of the criminal defense bar 
     trying to get prosecutors and law enforcement punished. 
     That's what's going on in the law.'' In contrast, when the 
     defense attorney was convicted of perjury for denying he 
     leaked the videotape to the press after learning of its 
     existence before trial, Judge Shedd sentenced the lawyer 
     to prison and a $20,000 fine, accompanied by a lecture 
     about the serious consequences of committing perjury.
       Judge Shedd has also exhibited a high level of 
     insensitivity on issues of race. Judge Shedd made several 
     insensitive comments as he dismissed a lawsuit aimed at 
     removing the Confederate battle flag from the South Carolina 
     statehouse dome. According to press accounts, Judge Shedd 
     suggested that South Carolinians--thirty percent of whom are 
     African-American--``don't care if that flag flies or not.'' 
     (``Judge Dismisses Most Flag Defendants, The Greenville News, 
     June 11, 1994). He also analogized the Confederate battle 
     flag, to many a symbol of support for slavery and racist acts 
     of terror directed at African-Americans, to the Palmetto 
     tree, which is on the State flag: ``What about the Palmetto 
     tree?'' What if that reminds me that Palmetto trees were cut 
     down to make Fort Moultrie and that offends me?'' (``U.S. 
     Judge Dims Hope of Battle Flag's Foes,'' The State, June 11, 
     1994.) It is shocking that Judge Shedd, who was raised in 
     South Carolina during the 1950s and 1960s, could compare--
     even hypothetically--being ``offended'' by the representation 
     of the Palmetto tree to the reaction of the African-American 
     community to the Confederate battle flag.
       Dennis Shedd's opinions in his eleven years on the federal 
     bench reflect hostility toward plaintiffs in civil rights 
     cases, a desire to limit Congress's authority to enact 
     legislation that is applicable to the States, and a general 
     insensitivity on issues of race. The Fourth Circuit 
     desperately requires a voice of moderation and commitment to 
     core civil and human rights values. We believe that Judge 
     Shedd is not that voice and that the Committee should 
     therefore reject his nomination to this important court.
           Sincerely,
         Eddie Bernice Johnson, Chair;
         John Conyers;
         E. Towns;
         Stephanie Tubbs Jones;
         James E. Clyburn;
         Albert R. Wynn;
         Corrine Brown;
         Barbara Lee;
         Sheila Jackson-Lee;
         Bobby L. Rush;
         Elijah E. Cummings;
         Melvin L. Watt;
         Earl F. Hilliard;
         Danny K. Davis;
         Eva M. Clayton;
         Julia Carson;
         William J. Jefferson;
         Gregory W. Meeks;
         Donald M. Payne;
         John Lewis;
         Sanford D. Bishop, Jr.;
         Benny G. Thompson;
         Carrie P. Meek;
         Alcee L. Hastings;
         Diane E. Watson;
         Chaka Fattah;
         Wm. Lacy Clay;
         Major R. Owens;
         Carolyn C. Kilpatrick;
         Maxine Waters;
         Juanita Millender-McDonald;
         Jesse Jackson, Jr.;
         Harold E. Ford, Jr.;
         Cynthia McKinney;
         C.B. Rangel.

  Mr. LEAHY. We received a letter from the Mexican American Legal 
Defense and Educational Fund, in the interest of many Latinos in the 
Fourth Circuit, expressing opposition to Judge Shedd as well as 
correspondence from others expressing concern.
  I ask unanimous consent that these be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                            Mexican American Legal


                                 Defense and Educational Fund,

                               Washington, DC, September 30, 2002.
       Dear Senate Judiciary Committee Member: On behalf of the 
     Mexican American Legal Defense and Educational Fund (MALDEF), 
     I urge you to oppose the nomination of Dennis Shedd to the 
     4th Circuit Court of Appeals. MALDEF is a Latino civil rights 
     organization that was founded in Texas in 1968. Since that 
     time, we have expanded our work across the nation and 
     represent all Latinos. In our more recent history, we opened 
     a community outreach office on the census in Atlanta, Georgia 
     prior to the 2000 census. Due to the growth of the Latino 
     community in the Southeast and the pressing legal needs of 
     our community in that region, we expanded our office this 
     year into a full regional office handling litigation, 
     advocacy and community education within the 4th Circuit 
     states of Maryland, North Carolina, South Carolina, Virginia, 
     and West Virginia.
       Many people still are not aware of the rapid growth of the 
     Latino community in this region of the country. The following 
     is a sample of the Latino growth rates over that the last 
     decade in 4th Circuit states. In Maryland, Howard County's 
     Latino population grew at a rate of 104%, Anne Arundel County 
     saw its Latino population grow at a rate of 76%, Baltimore 
     County's Latino population grew by 65%, and Prince George's 
     County experienced 37% growth of Latinos. In Virginia, Prince 
     William County's Latino population grew by 94%, Fairfax 
     County experienced 71% growth of the Latino population, 
     Virginia Beach City's Latino population grew by 65%, and 
     Arlington county experienced 46% Latino growth. In North 
     Carolina, Wake County's Latino population grew by 190%, 
     Mecklenburg County saw its Latino population grow by 163%, 
     and Cumberland County experienced Latino growth at a rate of 
     97% in the last decade. In South Carolina, Richland County 
     saw its Latino population grow at a rate of 66%.
       In addition, much of the Latino growth in these states is 
     being driven by the movement of Latino immigrants. What many 
     of these Latino immigrants face in these southeastern states 
     are barriers to housing, jobs, education, and health, as well 
     as targeting by local law enforcement similar to what many 
     Latino immigrants faced decades ago in states like 
     California, Texas and New York. While barriers and improper 
     law enforcement tactics still occur in states like California 
     and New York, these traditionally high-immigrant states also 
     now have a built-in infrastructure to serve the needs of 
     immigrants and help them find recourse if their rights are 
     trampled upon. Unfortunately, similar infrastructures do not 
     exist in most of the region covered by the 4th Circuit. As 
     such, ensuring that only nominees who will be fair to the new 
     Latino community in the southeast is particularly important.
       MALDEF's evaluation of Dennis Shedd uncovered a 
     demonstrated lack of commitment

[[Page S11256]]

     to protect the civil rights of ordinary residents of the 
     United States and to preserve and expand the progress that 
     has been made on civil rights and individual liberties. In 
     every respect, Dennis Shedd has demonstrated that he would 
     likely decide cases in a manner that run counter to the 
     core principles and rights we believe are necessary to 
     protect Latinos, particularly the most vulnerable who live 
     within the 4th Circuit.
       Throughout his eleven years on the federal district court, 
     Judge Shedd has dismissed almost all of the civil rights 
     cases that have come before him; thus, preventing the merits 
     of these cases to be heard by a jury. Based on his handling 
     of race, gender, age, and disability claims, we conclude that 
     Judge Shedd would not give Latino plaintiffs seeking legal 
     remedies for civil rights violations a fair day in court.
       In the area of upholding federal statutes, Judge Shedd's 
     rulings regarding federalism are also troubling and follow 
     the Fourth Circuit's bold attempts to narrow the powers of 
     Congress in its protection of the rights of all Americans. We 
     conclude that Judge Shedd, as a judge on the circuit court, 
     would continue attempts to limit the powers of Congress to 
     pass legislation that protects the rights of Latinos and 
     other protected groups.
       Judge Shedd has also exhibited a high level of 
     insensitivity or poor judgment in commenting on issues about 
     race--while serving as a federal district judge in a state 
     with a population that is 30% African-American. For example, 
     in a recent unpublished case, Judge Shedd was reported in the 
     press as making several insensitive comments as he dismissed 
     a lawsuit aimed at removing the Confederate battle flag from 
     the South Carolina statehouse dome.
       Dennis Shedd's eleven-year record as a federal district 
     judge reflects hostility towards plaintiffs in civil rights 
     cases, a desire to limit authority to enact legislation that 
     is applicable to states, and insensitivity to issues of 
     discrimination. Further, Judge Shedd's extremist views on 
     these issues render him unsuitable to serve on the Fourth 
     Circuit. For these reasons, we urge you to oppose his 
     nomination to the Fourth Circuit Court of Appeals.
           Sincerely,
                                                Antonia Hernandez,
                                    President and General Counsel.
  Mr. LEAHY. Mr. President, hundreds, probably thousands, of letters 
from South Carolina citizens arrived in my office urging a closer look 
at Judge Shedd's nomination to serve in the Fourth Circuit.
  So we don't have a Congressional Record tomorrow morning that will be 
several hundred pages long, I will not include all of them with my 
remarks today. However, I ask unanimous consent that a list of the 
letters of opposition to the nomination of Dennis Shedd to the Fourth 
Circuit Court of Appeals be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Letters of Opposition to the Nomination of Dennis Shedd to the 4th 
                        Circuit Court of Appeals


                       Local Civil Rights Groups

       NAACP of South Carolina State Conference, June 24, 2002; 
     May 21, 2002.
       NAACP of Andrews Branch, August 7, 2002.
       NAACP of Eutawville, South Carolina, August 7, 2002.
       NAACP of Newberry, South Carolina, August 7, 2002.
       NAACP of Hilton Head Island/Bluffton, South Carolina, 
     NAACP, August 24, 2002.
       NAACP of Moncks Corner, South Carolina, August 7, 2002.
       NAACP of Kershaw, South Carolina, September 17, 2002.
       NAACP of Clarendon County Branch, August 12, 2002.
       Urban League of the Upstate, Inc., South Carolina, 
     September 24, 2002.
       NAACP of North Carolina, June 24, 2002; June 26, 2002.
       NAACP of Maryland State Conference, September 4, 2002.
       Progressive Maryland, August 8, 2002.
       NAACP of California State Conference, September 9, 2002.
       NAACP of Mississippi State Conference, August 24, 2002.
       NAACP of Delaware State Conference, August 14, 2002.
       Public Justice Center, October 7, 2002.
       NAACP of West Virginia State Conference, August 14, 2002.
       Quad County (IL) Urban League, September 27, 2002.
       Birmingham Urban League, Inc., September 24, 2002.
       Advocates for Ohioans with Disabilities, August 31, 2002.
       National Organization for Women, Western Wayne County (MI), 
     October 8, 2002.


                      national civil rights groups

       Black Leadership Forum, September 16, 2002, November 12, 
     2002 (Dr. Joseph E. Lowery).
       NAACP, September 17, 2002 (Kweisi Mfume).
       Mexican American Legal Defense and Educational Fund, Sept. 
     30, 2002 (Antonia Hernandez).
       People for the American Way, June 24, 2002; September 4, 
     2002.
       American Association of University Women, June 20, 2002; 
     November 14, 2002.
       National Council of Jewish Women, August 15, 2002.
       Rainbow/Push Coalition, August 24, 2002 (Reverend Jesse L. 
     Jackson, Sr.).
       Alliance for Justice, November 15, 2002 (Nan Aron).
       People for the American Way, November 15, 2002 (Ralph 
     Neas).
       Leadership Conference on Civil Rights & Alliance for 
     Justice, July 11, 2002, coalition letter signed by the 
     following groups: Alliance for Justice and Leadership 
     Conference on Civil Rights August 30, 2002, NARAL, NAACP 
     Legal Defense and Educational Fund, NAACP, American 
     Association of University Women, ADA Watch, National Council 
     of Jewish Women, AFL-CIO, NOW Legal Defense and Education 
     Fund, People for the American Way, Feminist Majority, 
     National Partnership for Women and Families, National 
     Organization for Women, and Disability Rights Education and 
     Defense Fund.
       Alliance for Justice and Leadership Conference on Civil 
     Rights, September 18, 2002, coalition letter signed by the 
     following groups: Leadership Conference on Civil Rights, 
     Alliance for Justice, People for the American Way, NARAL, 
     Planned Parenthood Federation of American, Human Rights 
     Campaign, National Organization for Women, American 
     Association of University Women, NOW Legal Defense and 
     Education Fund, National Family Planning and Reproductive 
     Health Association, National Council of Jewish Women, 
     National Abortion Federation, and The Feminist Majority.
       Alliance for Justice and Leadership Conferee on Civil 
     Rights, November 15, 2002, coalition letter signed by the 
     following groups: Leadership Conference on Civil Rights, 
     Alliance for Justice, NARAL, NAACP Legal Defense and 
     Educational Fund, NAACP, People for the American Way, 
     American Association of University Women, Feminist Majority, 
     ADA Watch, National Partnership for Women and Families, 
     National Council of Jewish Women, National Organization for 
     Women, AFL-CIO, NOW Legal Defense and Education Fund, and 
     Disability Rights Education and Defense Fund.


                           elected officials

       National Black Caucus of State Legislators, September 25, 
     2002.
       South Carolina Legislative Black Caucus, September 4, 2002.
       North Carolina Legislative Black Caucus, September 26, 
     2002.
       Legislative Black Caucus of Maryland, Inc., September 9, 
     2002.
       Wisconsin Legislative Black & Hispanic Caucus, August 21, 
     2002.
       Margaret Rose Henry, State Senator, State of Delaware, 
     September 19, 2002, November 12, 2002.
       Maryland State Delegate Howard ``Pete'' Rawlings, August 
     21, 2002.
       Congressional Black Caucus, July 26, 2002, October 2, 2002.


                            bar associations

       National Bar Association, September 4, 2002.
       Old Dominion Bar Association, September 11, 2002.
       North Carolina Association of Black Lawyers, August 30, 
     2002.
       Alliance of Black Women Attorneys of Maryland, Inc., August 
     30, 2002.
       National Employment Lawyers Association, September 17, 
     2002, November 15, 2002.
       North Carolina Academy of Trial Lawyers, September 26, 
     2002.


                             law professors

       UNC--Chapel Hill School of Law: John Carles Boger, Lissa L. 
     Broome, Kenneth S. Broun, John O. Calmore, Charles E. Daye, 
     Eugene Gressman, Ann Hubbard, Daniel H. Pollitt, and Marilyn 
     V. Yarbrough.
       Duke University School of Law: Christopher H. Schroeder and 
     Jerome Culp.
       North Carolina Central University School of Law: Renee F. 
     Hill, David A. Green, Irving Joyner, Nichelle J. Perry, and 
     Fred J. Williams.


                          Law School Students

       Howard University School of Law Students, September 11, 
     2002, signed by 58 Howard University Law Students.


                               Attorneys

       Tom Turnipseed, Columbia, South Carolina, June 26, 2002.
       Walt Auvil, Attorney, Parkersburg, West Virginia, June 19, 
     2002.
       Neil Bonney, Attorney, Virginia Beach, Virginia, June 20, 
     2002.
       Timothy E. Cupp, Attorney, Harrisonburg, Virginia, June 21, 
     2002.
       Devarieste Curry, August 31, 2002.
       Joseph D. Garrison, Attorney, New Haven, Connecticut, June 
     18, 2002.
       Stephen B. Lebau, Richard P. Neuworth, Anna L. Jefferson, 
     Carrie D. Huggins, Attorneys, Baltimore, MD, June 20, 2002.
       David M. Melnick, Attorney, Rockville, MD, June 20, 2002.
       Gabriel A. Terrasa, Attorney, Owings Mills, MD, June 20, 
     2002.
       Cathy Ventrell-Monsees, Attorney, Chevy Chase, MD, June 20, 
     2002.
       Salb, Shannon, Attorney, Washington, DC, September 19, 
     2002.


                           Religious Leaders

       South Carolinians, September 30, 2002.
       Ms. Elvira Faulkner--McIlwain, Lancaster District Pee Dee 
     Conf. AME Zion Church.
       Rev. Dr. Lloyd Snipes, Presiding Elder, Lancaster District 
     Pee Dee Conf. AME Zion Church.

[[Page S11257]]

       Rev. Matthew L. Browning, Pastor, David Stand AME Zion 
     Church.
       Rev. Dr. Reid R. White, Paster, El Bethel AME Zion Church.
       Rev. Harold Jones, White Oak AME Zion Church.
       Rev. Dr. Marion Wilson, Steele Hill AME Zion Church.
       Rev. R.A. Morrison, Pastor, Salem AME Zion Church.
       Rev. Albert Young, Pastor, Mt. Zion AME Zion Church.
       Rev. Theodis Ingram, Pastor, Warner Temple AME Zion Church.
       Rev. Henry I. Dale, Pastor, North Corner AME Zion Church.
       Rev. Eldren D. Morrison, Pastor, Pleasant Hill AME Zion 
     Church.
       Rev. Beatrice H. Massey, Pastor, Mt. Nebo AME Zion Church.
       Rev. Dorothy N. Wallace, Pastor, New United AME Zion 
     Church.
       Rev. Deborah Waddell, Pastor, Gold Hill AME Zion Church.
       Rev. Thomas R. Moore, Mt Carmel, AME Zion Church.
       Rev. Gloria Stover, Pastor, Greater Frazier AME Zion 
     Church.
       Rev. Toby L. Johnson, Pastor, Clinton Chapel AME Zion 
     Church.
       Rev. Len Clark, Pastor, Bingham Chapel AME Zion Church.
       Rev. James R. Thomas Jr., Pastor, Camp Creek AME Zion 
     Church.
       Rev. James E. Gordon, Pastor, St. Paul AME Zion Church.
       Rev. Dr. Roy H. Brice, Pastor, Mt. Moriah AME Zion Church.
       Rev. Albert Tucker, Pastor, Centennial AME Zion Church.
       Rev. Roosevelt Alexander, Mt. Tabor, AME Zion Church.


                                Citizens

       Marlin Maddoux, Host, Point of View Radio Talk Show.
       Gladys W. Wallace, Elgin, SC, April 1, 2002.
       Kathy Moore, Charleston, SC, June 24, 2002.
       Salvador V. Acosta, Jr., North Charleston, SC, June 21, 
     2002.
       Henderson and Gwen Beavers, Charlottesville, VA, August 29, 
     2002.
       Florence Brandenburg, Shedrick Knox, Birmingham, AL August 
     1, 2002.
       Barbara Burgess, Marshall, Virginia, November 14, 2002.
       James T. McLawhorn, October 2, 2002.
       Judith Polson, New York, NY, September 14, 2002.
       Gloria Washington, Stone Mountain, GA, September 11, 2002.
       Keith Washington, Stone Mountain, GA, September 11, 2002.
       And letters from more than 1,200 other citizens.
  Mr. LEAHY. Mr. President, there is a reason, when you look at Judge 
Shedd's record, that many believe he has a reputation for assisting the 
defense in civil cases and for ruling for the defense in employment 
civil rights cases, for example. His holding in Condon v. Reno shows 
that his view of the constitutional allocation of powers between the 
States and the, Federal Government goes even beyond what we have seen 
from a very conservative activist Supreme Court across the street. They 
are busily rewriting the law in this fundamental area. And Judge Shedd 
goes beyond the U.S. Supreme Court. His actions in a case involving 
serious prosecutorial and police misconduct also raise serious 
questions about his fairness in criminal cases.
  His record as a whole raises serious concerns about whether he should 
be elevated to a court that is only one step below the U.S. Supreme 
Court and whether he should be entrusted with deciding appeals there.
  Every litigant, every defendant, every person, every plaintiff who 
comes before a judge in the Federal courts must be assured that the 
judge will give a fair and unbiased hearing to the case at hand. The 
test of a judge, especially a lifetime appointment, goes beyond just 
the question of competence. When we are talking about our Federal 
courts--remember, our Federal courts are admired around the world for 
their independence and their fairness, but that means that whether you 
or I, or anybody else walks into a Federal court, no matter what our 
case is, whether we are plaintiff or a defendant, whether we are the 
Government or one responding to the Government, whether we are rich or 
poor, no matter what our political background is, when we walk into the 
courtroom door, we have to be able to have confidence that this judge, 
this Federal judge, will hear our case--he or she will hear it fairly.
  Litigants in our federal courts should be able to have confidence to 
say and believe that it makes no difference what my political 
background is, what the color of my skin is, where I am from, or 
anything else. I will win or I will lose based on the merits of the 
case, not based on the individual prejudices of the judge.
  Unfortunately, when one looks at Judge Shedd's record, one has to say 
that somebody coming in to his court could not have that assurance. One 
has to say unless they fit into a narrow category that Judge Shedd has 
routinely favored in his cases, you are probably pretty unlucky to be 
before his court.
  Let me go through these concerns in a little more detail. First, 
Judge Shedd has a reputation for assisting in the defense in civil 
cases, raising issues sua sponte (on his own motion, without a motion 
from the lawyers for the litigants), in essence making himself the 
third litigator and not leaving it up to the parties--the plaintiff or 
defendant--to litigate the case, but actually stepping in and taking 
sides and making it very clear to the people in the courtroom that he 
is taking sides.
  He has ordered defendants to make motions for summary judgment 
whether they wanted or planned to or not. He has resolved issues before 
they are even raised and fully briefed, having made up his mind before 
the case is even heard, having made up his mind on behalf of one of the 
litigants. This shows a pattern of a judge injecting himself into 
litigation, particularly in the shoes of corporations and others if 
they are being sued, if they are defendants in civil litigation. Here 
are some specific cases that illustrate these interventions by Judge 
Shedd to the benefit of one of the parties.
  In McCarter v. RHNB, a case alleging gender discrimination, Judge 
Shedd granted summary judgment. He did not even wait for the company to 
raise these grounds. He raised it for them and summarily ruled in their 
behalf on an issue they had not even raised.
  In Shults v. Denny's Restaurant, a case involving a claims of 
employment discrimination under the Americans with Disabilties Act, 
Judge Shedd raised an issue on his own, saying he was doing it ``for 
possible resolution by summary judgment.'' In other words, putting 
himself on the side of Denny's and in essence advocating for their 
interests.
  Again, deciding how best the defense should execute their litigation 
strategy, he noted that three of the defenses asserted are potentially 
dispositive of certain claims--in other words, three of the defenses 
could settle the case right there--and said ``these issues do not 
appear to necessitate much, if any, discovery on the part of the 
plaintiff.'' He mentioned, almost as an afterthought at the close of 
his order, that defendants ``may also file a memorandum'' if they want.
  It does not help when you are litigating a case if you know the judge 
has already made up his mind for the other side. It helps even less if, 
having made it clear he has made up his mind for the other side, he 
actually steps in and helps the other side.
  What kind of an image does that give to people who are expecting 
fairness and impartiality in our Federal courts? What does that say to 
people who are being told by all of us, as we always are, that our 
Federal courts are impartial? What does it say when they watch cases 
being tried by a judge who takes sides openly and clearly and 
continuously in his courtroom?
  In Lowery v. Seamless Sensations, a case where an African American 
woman brought claims under Title VII for employment discrimination on 
the basis of race, Judge Shedd turned to the person she was suing and 
said: Make a motion to dismiss. Then he quickly granted it. I bet you 
that woman walked out of there wondering why she ever even bothered 
coming into court when it was so obvious the judge made up his mind.

  Take Coker v. Wal-Mart, in which it appears the judge wanted to get 
rid of this case. He wanted to make a motion on his own to send it back 
to the State court, but he did ask Wal-Mart: Give me a memo to show me 
I can really do that which, of course, is what Wal-Mart wanted.
  In Gilmore v. Ford Motor Company, a product liability case, Judge 
Shedd outlined four factors he must consider before dismissing an 
action for failure to prosecute. He found that the defendants had not 
set forth evidence addressing these four factors, but nevertheless went 
on to ``glean certain pertinent information from the record.''
  In other words, he said: Here is what you need to win this case. You 
have not raised these issues yourself. I have gleaned them from 
somewhere in the record. So do not worry, buddies, I

[[Page S11258]]

have taken care of you; I am on your side. I will argue your case for 
you and, in doing this, I can dismiss the case against you.
  You almost wonder if the winning side feels they should pay their 
attorneys when the judge has stepped in to help them win the case.
  In Simmons v. Coastal Contractors, both parties were appearing 
without a lawyer, or pro se. Judge Shedd noted that ``this civil action 
. . . is before the court sua sponte.'' While he must have meant the 
motion itself was before him sua sponte, or on his own motion, he 
brought up deficiencies in the plaintiff's complaint and ordered that 
an amended complaint be filed or the action would be dismissed on the 
judge's own motion. In other words, he essentially indicated I am going 
to decide the case. You litigants go have coffee if you want, but I am 
going to make up my mind, make your arguments for you, and settle the 
case for you.
  In another substitution for his strategic litigation judgment for 
that of the defendants, Tessman v. Island Ford-Lincoln-Mercury, Judge 
Shedd threatened to dismiss the plaintiff's Title VII action on his own 
unless the plaintiff could show cause why he should not. He said the 
plaintiff had not alleged that she had presented her claim to, or 
received a right-to-sue letter from the EEOC and decided that rather 
than letting the defense move for dismissal, he would do so on his own. 
In other words: I am going to make the arguments on the other side and 
get rid of the case.
  Additionally, of the 11 cases relating to employment discrimination 
available in the public record, Judge Shedd held for the employer in 
every single one, including one case where he sat by designation on the 
Fourth Circuit. Judge Shedd granted summary judgment after summary 
judgment and found for the employer and against the employee in a wide 
range of employment discrimination claims.
  Of the 54 fair employment cases included in the unpublished opinions 
he provided to the Committee, more than 80 percent of them grant 
summary judgment to the defendants. That does not appear to be a fair 
record. It strongly indicates plaintiffs are not receiving fair 
hearings. Employment cases are often fact-specific disputes that would 
not seem likely to result in an overwhelming majority of summary 
judgment decisions for defendants because under the summary judgment 
standard, the evidence must be viewed in the light most favorable to 
the non-movant--the plaintiff under these circumstances--and the judge 
must find that there are no disputes about material facts and that 
judgment as a matter of law is warranted for the moving party the 
defendants.
  Certainly when I look at the mail I get from South Carolina and from 
litigants and others there, there is a pervasive feeling that unless 
you fit the right category when you come before that court, you are not 
going to get a hearing favorable to you--actually, an overwhelming 
feeling that the hearings will not be fair. They will be slanted to one 
side. That is not how we maintain the integrity and independence of the 
Federal bench. For example, the National Employment Lawyers Association 
reviewed Judge Shedd's public record. They sent a letter opposing his 
confirmation. I ask unanimous consent that the letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                               National Employment


                                          Lawyers Association,

                                               September 17, 2002.
     Re Dennis Sheed--Appointee for United States Court of 
         Appeals.

     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Senator Leahy: On behalf of the National Employment 
     Lawyers Association (NELA), I am writing you to express our 
     organization's strong opposition to the nomination of Judge 
     Dennis Shedd to the Fourth Circuit Court of Appeals. We urge 
     the members of the Senate Judiciary Committee to vote against 
     his nomination. We further urge the Administration to 
     nominate a person for that seat who will apply federal 
     employment and labor laws in a fair and even-handed manner, 
     and who will interpret those laws in keeping with the intent 
     of Congress.


     during his hearing, judge shedd offered misleading information

       Judge Shedd's employment law decisions have been, almost 
     without exception, in favor of employers. At his Committee 
     hearing earlier this year, Judge Shedd claimed that was 
     unable to recall any employment case in his courtroom that 
     had gone to trial resulted in a verdict or judgment in favor 
     of the plaintiff. By way of explanation, Judge Shedd told the 
     Committee that no judge in his district had an employment 
     case where the employee had won at trial. This statement was 
     untrue, and several other judges in the district presided 
     over trials which were won by the plaintiffs. Shedd's 
     statement is not only indicative of his anti-employee bias, 
     but also demonstrates a cavalier attitude toward the truth 
     and a willingness to offer erroneous information to the 
     Committee.
       In addition, NELA is concerned that Judge Shedd may not 
     have opened his entire judicial record for scrutiny by the 
     Senate Judiciary Committee and the public. Shedd turned over 
     unpublished opinions only after his hearing, and never 
     provided the Committee with a full docket of his cases. 
     Without a full docket, it is impossible to determine whether 
     all of Judge Shedd's unpublished opinions have been released. 
     Your Committee is considering Judge Shedd's lifetime 
     appointment to a court where his rulings would carry enormous 
     precedential force. In light of the importance of this 
     appointment, the Committee and the full Senate should not 
     be forced to make a decision based on a record that may be 
     incomplete.


 judge shedd's employment decisions reveal a strong anti-employee bias

       NELA has analyzed dozens of Judge Shedd's unpublished and 
     published decisions in employment cases. These decisions 
     reveal a willingness to bend the law and ignore precedent in 
     order to reach results-oriented rulings.


judge shedd frequently ignored the findings of his own magistrate judge 
                   in order to rule against employees

       In the federal district courts, Magistrate Judges often 
     evaluate a case and recommend to the judge whether the 
     plaintiff has presented sufficient evidence for the case to 
     go to trial. The decisions of Magistrate Judges are typically 
     affirmed, as the Magistrate Judge usually has had an 
     opportunity to fully review the facts of the case. Judge 
     Shedd has frequently ignored uncontradicted evidence and 
     overruled the recommendations of Magistrate Judges.
       In Cleary v. Nationwide Mutual Insurance Co., the 
     Magistrate Judge has found that there was sufficient evidence 
     for a trial where a female employee was fired in retaliation 
     for filing a sexual harassment case. The employer forced the 
     female employee to take administrative leave and then fired 
     her after she filed a sexual harassment claim, but the 
     harasser was allowed to keep working. Judge Shedd rejected 
     the Magistrate Judge's recommendation, and refused to let the 
     case go to trial. By viewing each of the seven or eight 
     incidents of harassment as a separate incident rather than as 
     a whole, Judge Shedd concluded that there was no evidence 
     that the female employee was forced to take leave and then 
     terminated for retaliatory reasons (contrary to the 
     Magistrate Judge's findings). Judge Shedd's analysis--viewing 
     each incident in isolation--is contrary to established 
     Supreme Court precedent. Judge Shedd also excused some of the 
     defendant's acts as mere ``mistakes.''
       In Dinkins v. Blackman, Judge Shedd rejected a magistrate 
     Judge's recommendation and granted summary judgment on a 
     sexual harassment claim and other claims by the employee, 
     even though Judge Shedd found that the sexual harassment was 
     ``gross behavior.'' Judge Shedd refused to give the employee 
     the opportunity to seek further information for her case in 
     discovery, ignoring a new Supreme Court case which was 
     decided after Dinkins filed her case.
       In Ellis v. Speaks Oil Co., Judge Shedd granted summary 
     judgment in favor of the employer on an age discrimination 
     claim, contrary to the Magistrate Judge's recommendation, 
     because he concluded that the plaintiff, a truck driver, was 
     not performing his duties up to his employer's expectations 
     of driving two trips per day. He disregarded evidence found 
     by the Magistrate Judge which showed that the plaintiff, who 
     was 62 years old, was driving two trips per day until the 
     company let him go.
       In Roberts v. Defender Services, Judge Shedd ignored the 
     Magistrate Judge's recommendation to deny the employer's 
     motion for summary judgment in a sexual harassment case. 
     Judge Shedd agreed that the harassment in this case was 
     severe, but ruled that the woman did not prove that she was 
     really upset by the harassment, which should have been a 
     question for the jury to decide.


judge shedd ignored clear and established precedent in order to rule in 
       favor of corporate employers against individual employees

       In Ephraim v. Paul Harris Stores, Inc., Judge Shedd held 
     that a claim of invasion of privacy (false light) was not 
     cognizable under South Carolina law, despite two South 
     Caroline Supreme Court decisions that had recognized this as 
     a valid claim under state law.
       In Rector v. Rainbow Shops, Inc., Judge Shedd disregarded 
     South Carolina state-court decisions that had held that a 
     mere insinuation is actionable in a defamation case if it is 
     false and malicious and the meaning is plain. Instead, he 
     decided that employee's termination while the store was 
     experiencing cash shortages was not reasonably capable of

[[Page S11259]]

     a defamatory meaning. Judge Shedd also allowed the employer 
     to read and sign the form, even though the employer offered 
     no reason for doing this. Judge Shedd did not even require 
     the employer to explain why it was necessary for the 
     termination meeting to occur in public, in the presence of 
     other store employees.
       In Storms v. Goodyear Tire & Rubber Co., Judge Shedd held 
     that an employee could not bring a claim for breach of 
     contract based on language contained in the company's own 
     personnel documents because there was no evidence of ``mutual 
     assent'' to those documents. He did not explain why the 
     company had not assented to the promises contained in its own 
     documents. He refused to follow precedent by the South 
     Carolina Supreme Court on this and related issues. Later, in 
     Truesdale v. Dana Corp., Judge Shedd cited his own opinion in 
     Storms and again failed to follow precedent. In this case, an 
     employee was fired in violation of the company's own 
     disciplinary policies and procedures. By interpreting the 
     employer's personnel documents in a selective, extremely pro-
     employer manner, Judge Shedd determined that the employer's 
     policies did not protect the employee.


  judge shedd disregarded or misconstrued evidence to the benefit of 
                               employers

       In English v. Kennecott Ridgeway Mining Co., an injured 
     employee claimed that he was fired in retaliation for filing 
     a workers' compensation claim. Judge Shedd dismissed the 
     retaliatory discharge claim despite uncontradicted evidence 
     (summarized in his own opinion) which demonstrated the 
     employer's hostility toward the injured worker because of his 
     workers' compensation claim. In fact, while the plaintiff 
     ``was still under the care of the company's physician, 
     coworkers informed English that his superiors were 
     complaining that English was milking the system, that he was 
     not really hurt, and that he should be returned to full 
     duty.''
       In Givens v. South Carolina Health Insurance Pool, Judge 
     Shedd allowed the state insurance pool to exclude AIDS/HIV 
     from health insurance coverage. Judge Shedd held that the 
     Sec. 501(c) insurance underwriting exclusion (safe harbor 
     provision) of the Americans with Disabilities Act (``ADA'') 
     exempted the Insurance pool from coverage under that statute, 
     even though the State did not do any of its own actuarial 
     studies or underwriting studies to evaluate the expensive and 
     risks of insuring persons with AIDS/HIV. Since the State 
     failed to do any of its own studies, it should have been 
     barred from being able to claim the Sec. 501(c) exemption.
       In Gregory v. Chester County Sheriff's Dept., Judge Shedd 
     accepted a poorly reasoned recommendation from a Magistrate 
     Judge against an employee. The Magistrate Judge had found 
     that the employee could not prove that her demotion was an 
     ``adverse action'' by the employer. This ruling is contrary 
     to precedent that demotions are adverse job actions. Gurganus 
     v. Beneficial North Carolina, Inc., 2001 U.S. App. LEXIS 
     26943 (4th Cir. 2000). Although Judge Shedd stated that he 
     was supposed to review the Magistrate Judge's recommendation 
     de novo, he issued only a one-page summary order.
       In Richberg v. Glaston Copper Recycling, Judge Shedd 
     refused to consider evidence presented by the plaintiff that 
     showed the existence of genuine issues of material fact when 
     he granted summary judgment for the employer. For example, he 
     claimed that the plaintiff had failed to challenge the 
     employer's affirmative defense that the plaintiff was 
     terminated for failing to meet ``established work 
     standards,'' although the plaintiff had submitted a positive 
     performance evaluation from his personnel file. Judge Shedd 
     also refused to follow a state court decision that had held 
     that a sixteen-day proximity in time between a workers' 
     compensation filing and a drug screen was prima facie 
     retaliation, on the grounds that the drug screen in the 
     Richberg case was ordered 50 days after the filing.


 judge shedd's appointment to the fourth circuit would stack the court 
                        with pro-employer judges

       NELA members who practice in the states within the Fourth 
     Circuit repeatedly have reported that they do everything they 
     can to avoid filing employment cases in federal court and 
     avoid filing federal claims in state court, for fear of 
     removal. As a result, federal statutes prohibiting 
     discrimination in employment--Title VII, the ADA, the Age 
     Discrimination in Employment Act, the Reconstruction-era 
     civil rights acts--are largely not enforced in those states 
     because the Fourth Circuit has created a hostile environment 
     for those claims. As Committee members are aware, the Fourth 
     Circuit has been reversed even by the current Supreme Court 
     on a number of occasions, in cases involving employment and 
     other matters. See, e.g., EEOC v. Waffle House, Inc., 534 
     U.S. 279 (2002) (reversing the Fourth Circuit decision by a 
     6-3 vote, and holding that the EEOC is not bound by 
     arbitration agreements between an employee and employer); 
     Ferguson v. City of Charleston, 531 U.S. 67 (2001) (by a 6-3 
     vote, holding that coerced drug testing of pregnant women is 
     unconstitutional); Dickerson v. United States, 530 U.S. 428 
     (2000) (by a 7-2 vote, the Court refused to overrule Miranda 
     v. Arizona).


         nela strongly opposes the confirmation of judge shedd

       Judge Shedd's record shows a cavalier attitude toward 
     evidence, legal precedent, and an alarming tendency to deny 
     working men and women who appear before him their day in 
     court. Judge Shedd is dismissive toward the rights of workers 
     who face harassment and mistreatment by their employers. 
     Unlike his colleagues in the District of South Carolina, 
     there has never been a pro-employee verdict in any civil 
     rights trial in Judge Shedd's courtroom. If fairness and a 
     commitment to equal justice are expected of appointees to the 
     United States Court of Appeals, then Judge Shedd has proven 
     that he cannot satisfy these expectations. For these reasons, 
     NELA urges you to oppose the confirmation of Judge Dennis 
     Shedd.
           Very truly yours,
                                              Frederick M. Gittes,
               President, National Employment Lawyers Association.
  Mr. LEAHY. Mr. President, I mentioned that Judge Shedd tends to go 
even beyond where an activist U.S. Supreme Court has gone. In a 1997 
case challenging the constitutionality of the Driver's Privacy 
Protection Act, Judge Shedd made a federalism ruling that went way 
beyond even the extreme federalism rulings of the U.S. Supreme Court, 
and it was so bad that the U.S. Supreme Court in a 9-to-0 opinion 
reversed Judge Shedd's ruling.
  In Condon v. Reno, Judge Shedd ruled on the constitutionality of the 
Driver's Privacy Act, which essentially prohibited States from selling 
and sharing personal information gleaned as they were picking up 
driver's license information. He said that the Act violated the 10th 
Amendment as interpreted by the courts in New York v. United States and 
Printz v. United States. Three years later, Chief Justice Rehnquist 
wrote for the Court explaining that, to the contrary, neither of the 
cases applied. He did not get just one of them wrong, he got them both 
wrong. The Chief Justice wrote that because the Act did not require the 
States in their sovereign capacity to regulate their own citizens, but 
instead regulates the States as the owners of the databases. Therefore, 
the Act was consistent with the constitutional principles enunciated in 
New York v. Printz.
  In Crosby v. South Carolina, he found the Family and Medical Leave 
Act unconstitutional on the grounds that it was not properly enacted 
under Congress's power. I mention this case because it is the second 
time Judge Shedd ruled in such a way in an important federalism case. 
He also ruled this way because he just took a magistrate judge's very 
brief report and did not put in any significant analysis of his own.
  In this case, it is almost impossible to figure out his reasoning for 
why this important law with bipartisan support would be 
unconstitutional, especially when acts of Congress are entitled to a 
presumption of constitutionality. One would think if somebody really 
cared about the courts of appeal and the Supreme Court, they would have 
at least given us rigorous analysis instead of making what appears to 
be a somewhat arbitrary ruling.
  In addition, he issued several opinions relating to a murder case 
where a privileged conversation between the defendant and his attorney 
was monitored and recorded on videotape by the county sheriff's 
department. Present in the room where the conversation was being 
monitored were several of the sheriff's deputies and the county 
prosecutor who subsequently handled the case. The defendant was 
convicted and sentenced to death but the Supreme Court of South 
Carolina reversed because of the nature of the videotaping. In its 
opinion, the Supreme Court of South Carolina--not one considered the 
most liberal of courts--used very strong language that condemned the 
failure to disqualify the local prosecutor's office. They cited the 
prosecutor's special responsibilities to do justice. And the South 
Carolina Supreme Court said it would not tolerate deliberate 
prosecutorial misconduct which threatens rights fundamental to liberty 
and justice. That is about as strong a condemnation by any state 
Supreme Court of a prosecutor's actions as I have ever heard.
  So the federal prosecutions relating to the videotaping were then 
brought to Judge Shedd's courtroom. Both the prosecutor, Fran 
Humphries, and the defense attorney, Jack Duncan, were brought before a 
federal grand jury investigating these constitutional violations.
  Mr. Duncan testified that he had not given a copy of the tape to a 
television reporter, while Mr. Humphries testified he had not 
immediately known the taping was taking place. Now each of them

[[Page S11260]]

was charged with perjury based on these statements. As I mentioned, the 
prosecutor and several of the sheriffs, were there watching the taping. 
So it was obvious he was not telling the truth.
  Mr. Duncan, the defense attorney, was found guilty and sentenced to 4 
months in prison. Even though the information seemed overwhelming 
against the prosecutor, Judge Shedd dismissed those charges.

  This is enlightening because if anybody was hurt by the improper 
taping, it was the defendant and the defense attorney. If anybody truly 
committed a wrongdoing, as the South Carolina Supreme Court said in the 
strongest language against a prosecutor I can remember, it was the 
prosecutor. But having them both before his court, Judge Shedd in 
effect exonerated the prosecutor and sentenced the defense attorney to 
4 months.
  Think of yourself as the litigant before his court. Look at all of 
these cases I have talked about, and so many others. I do not fall in 
the category of the sides he tends to rule with. I am on the other 
side. It would be an awful sinking feeling to go in there knowing how 
good your case is but you are probably going to lose.
  This particular decision shows disregard for the rights of Americans 
who, no matter what they have been accused of, should be able to expect 
privacy and not to be videotaped by the government when they are 
talking to their attorneys. The law is settled in this country that 
with attorney-client privilege you can sit down and talk with your 
attorney without the prosecutor videotaping what you are saying, 
without them listening to or eavesdropping on you.
  There are a couple of people you are able to talk to with a 
reasonable expectation of privacy. You are able to talk to your spouse. 
You are able to talk to your attorney. You are able to talk to your 
priest in a penitent relationship. Here, the prosecutor violated that--
something that every prosecutor's handbook in America says is wrong, 
something that hornbook law says is wrong, every ethics course says is 
wrong, and every bar association says is wrong. The Supreme Court of 
South Carolina unanimously said it was wrong but Judge Shedd said to 
the prosecutor: It is okay; we will get the other guy. Well, that calls 
into question his ability to be fair in criminal cases.
  So I am concerned when I see his record as a Federal district judge, 
and I ask myself: If this is his record as a Federal district judge, 
how is he going to be as a circuit judge on the court of appeals? So I 
share some of the same concerns about his fairness that we have heard 
expressed from South Carolina and from throughout the Fourth Circuit.
  I know arguments will be made on the other side, and this will be 
disposed of however the Senate decides to vote, but for me, I could not 
in good conscience vote aye on this nomination. I will vote no.
  I ask unanimous consent that letters from the Leadership Conference 
on Civil Rights, Alliance for Justice, and others be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Leadership Conference on Civil Rights and Alliance for 
           Justice,
                                  Washington, DC, August 30, 2002.
     Hon. Patrick J. Leahy,
     Chair, Senate Judiciary Committee, Washington, DC.
       Dear Senator Leahy: We, the undersigned civil and human 
     rights organizations, write to express our strong opposition 
     to the confirmation of Dennis Shedd to the United States 
     Court of Appeals for the Fourth Circuit.
       First, we want to comment on the Judiciary Committee's 
     level of review of this particular nomination. On July 11, we 
     sent a letter expressing concern that the Committee had not 
     received all of the information required to make a fully 
     informed decision about whether to elevate Judge Shedd to the 
     Fourth Circuit. We urged the Committee to take steps to 
     complete the record on this nominee, and to hold another 
     hearing to allow the Committee to fully examine the complete 
     record.
       It now appears as if the Committee has declined to ensure 
     that it has obtained the complete judicial record and has 
     decided not to hold a second hearing on the nomination. We 
     are deeply troubled that the Committee may vote on the Shedd 
     nomination without first obtaining a complete record and then 
     providing an opportunity to publicly explore that record. The 
     many concerns that we have identified in Judge Shedd's record 
     produced thus far and which give rise to our opposition only 
     strengthen our conviction that a vote on the nomination 
     should occur only after a full record is obtained and 
     examined.
       We strongly believe that the composition of the federal 
     judiciary is a civil rights issue of profound importance to 
     all Americans, because the individuals charged with 
     dispensing justice in our society have a direct impact on 
     civil rights protections for us all. As you know, the role of 
     the federal judiciary in protecting the rights of the 
     powerless is particularly acute in the Fourth Circuit, which 
     has the highest percentage of African-Americans of any 
     federal circuit in the nation.
       The Fourth Circuit is also arguably the most conservative 
     of the federal circuits. Several of its most conservative 
     decisions have been subsequently reversed by the Supreme 
     Court as too extreme, including Condon v. Reno, a challenge 
     to Congress's power to protect the privacy of drivers' 
     license information; an attempt to overrule the Miranda rule; 
     and Virginia's attempt to limit the right of reproductive 
     choice. Because of the high percentage of minority citizens 
     in the circuit and the very conservative nature of the court, 
     it is imperative that any new appointment to this court be a 
     person of moderate views who is wholly committed to the goals 
     of equality and equal opportunity for all Americans. After an 
     extensive review of Judge Shedd's record, it has become clear 
     that he is not that nominee.
       We are deeply concerned about Judge Shedd's reluctance to 
     follow the law in support of vigorous enforcement of legal 
     protections against discrimination for women and minorities. 
     During Judge Shedd's time on the bench, at least forty 
     African-Americans have filed employment discrimination cases 
     that were assigned to Judge Shedd's court. Of those, Judge 
     Shedd granted summary judgment for the employer in whole or 
     in part in almost every case. In one case, Bailey v. South 
     Carolina Dep't of Social Services, Judge Shedd granted 
     summary judgment to the employer, even though the EEOC had 
     determine there was reasonable cause to believe that the 
     plaintiff was not promoted due to his race. In another case, 
     McMillan v. Department of Corrections, the plaintiff alleged 
     discrimination in the denial of a pay increase by the 
     Department of Corrections. The plaintiff's supervisor had 
     requested a pay increase for the plaintiff. At the same time, 
     another State agency conducted an investigation into racially 
     discriminatory employment practices within the Department of 
     Corrections and concluded that White employees tended to do 
     significantly better than Black employees in performance pay 
     increases. Nevertheless, Judge Shedd refused to let this case 
     go to trial. In contrast to cases involving African-American 
     plaintiffs, in four out of five discrimination cases filed by 
     White male plaintiffs, Judge Shedd has denied summary 
     judgment and paved the way for trial.
       Judge Shedd has an equally poor record in cases involving 
     gender discrimination. In one case, Roberts v. Defender 
     Services, Inc., he granted summary judgment to an employer in 
     a sexual harassment case, even after concluding that the 
     supervisor's conduct ``clearly was, from an objective 
     standpoint, sufficiently severe and pervasive to constitute a 
     hostile and abusive work environment.'' Despite that finding, 
     Judge Shedd concluded that the plaintiff had not provided any 
     evidence that she ``subjectively perceived the environment to 
     be abusive,'' reaching this conclusion despite the fact that 
     the record contained evidence that the plaintiff's supervisor 
     made sexual comments to her on a daily basis, that she told 
     him these comments were offensive, that she and a female 
     manager took steps to report the conduct to corporate 
     headquarters, and that she resigned from her job.
       Judge Shedd has also exhibited a disturbing tendency to 
     resolve cases on summary judgment in favor of defendants, 
     even where genuine issues of material fact were clearly 
     presented. For example, in Alston v. Ruston, Judge Shedd 
     granted summary judgment on a Section 1983 complaint after 
     concluding, as a matter of law, that a prison guard had not 
     used excessive force--despite an affidavit and a well-pleaded 
     complaint from the plaintiff alleging that the officer had 
     sprayed him in the face with tear gas without justification, 
     advanced toward him ``swinging his fists and punching 
     [plaintiff] in the mouth,'' and wielded a broomstick until 
     another officer intervened. Given the evidence presented, 
     there was no room for Judge Shedd to conclude that excessive 
     force had not taken place as a matter of law. Nevertheless, 
     Judge Shedd made such a ruling and dismissed the plaintiff's 
     case.
       In other cases, Judge Shedd has exhibited hostility toward 
     plaintiffs in civil rights claims involving allegations of 
     misconduct by law enforcement officers. For example, in Joye 
     v. Richland Co. Sheriff's Dep't., Judge Shedd dismissed a 
     Section 1983 claim brought by a person wrongfully arrested by 
     sheriff's deputies under a bench warrant issued for his son. 
     Despite the fact that the arrest warrant described a 31 year 
     old man, standing 5' 11'', the officers arrested the 
     plaintiff who was 61 years old and stood 5' 7'' tall. The 
     plaintiff argued that the officers had acted unreasonably in 
     arresting him, in violation of his 4th Amendment rights. 
     Judge Shedd, however, concluded that the plaintiff had not 
     stated a valid 1983 claim because the officers had a 
     ``reasonable, good

[[Page S11261]]

     faith, belief, that they were arresting the correct person.'' 
     He therefore rejected, as a matter of law, the contrary 
     conclusion of the magistrate that the officers were not 
     entitled to a ``good faith'' defense on these facts.
       Judge Shedd's record also displays a consistent disregard 
     for the rights of people with disabilities. He has ruled 
     against disability rights plaintiffs in almost every 
     instance, departing from settled law and adopting tortured 
     interpretations of disability rights laws. In one case, Judge 
     Shedd approved a state health insurance pool's complete 
     exclusion from coverage of a man who was HIV positive. The 
     plaintiff who filed the case sought to have it decided on an 
     expedited basis, but died eight months later before any 
     decision was rendered. In another case, a magistrate had 
     found no evidence that the plaintiff's disability interfered 
     with his ability to do his job and recommended that the 
     plaintiff be permitted to proceed with the claim. 
     Nevertheless, Judge Shedd dismissed the plaintiff's claim, 
     concluding, without citing any evidence, that the disability 
     rendered the plaintiff unable to do his job.
       We are also very concerned about Judge Shedd's views on 
     ``state's rights'' which would limit Congress's power to pass 
     laws that are applicable to the States. Shedd authored the 
     original district court opinion in Condon v. Reno, striking 
     down the Driver's Privacy Protection Act based on his belief 
     that the federal government did not have the power to require 
     States to ensure that State driver's license records would 
     remain private. Although the Fourth Circuit affirmed Judge 
     Shedd's decision, the Supreme Court unanimously reversed the 
     holding in a decision by Chief Justice Rehnquist. We are 
     unaware of any other instance in the last 50 years where a 
     district court judge has struck down an act of Congress on 
     federalism grounds only to be unanimously reversed by the 
     Supreme Court. Judge Shedd also struck down part of the 
     Family and Medical Leave Act (FMLA), in Crosby v. South 
     Carolina Dep't of Health and Envtl. Control, holding that the 
     11th Amendment doctrine of state sovereign immunity prevents 
     an employee from suing a State agency for violation of the 
     FMLA. This issue--because it calls into question Congress's 
     power to remedy sex discrimination in the workplace--has 
     profound implications for Congress's authority under Section 
     5 of the 14th Amendment.
       Judge Shedd has also exhibited a high level of 
     insensitivity on issues of race. In a recent case, Judge 
     Shedd made several insensitive comments as he dismissed a 
     lawsuit aimed at removing the Confederate battle flag from 
     the South Carolina statehouse dome. According to press 
     accounts, Judge Shedd suggested that South Carolina, 30% of 
     whom are African-American, ``don't care if that flag flies or 
     not.'' He also analogized the Confederate battle flag, to 
     many a symbol of support for slavery and racist acts of 
     terror directed at African-Americans, to the Palmetto tree, 
     which is on the State flag, stating: ``What about the 
     Palmetto tree? What if that reminds me that Palmetto trees 
     were cut down to make Fort Moultrie and that offends me?'' 
     Judge Shedd's hostility to the lawsuit in open court provides 
     strong evidence of a poor judicial temperament. His attempt 
     to minimize the symbolism of the Confederate flag to the 
     African American community and suggest it is comparable to an 
     image of the Palmetto tree reflects a stunning insensitivity 
     to the injurious impact this particular symbol still has on 
     many of our citizens.
       In sum, Dennis Shedd's eleven-year record on the federal 
     district bench reflects hostility towards plaintiffs in civil 
     rights cases, including minorities, women and persons with 
     disabilities, a desire to limit Congress's authority to enact 
     protective legislation that is applicable to the states, and 
     insensitive to issues of race. Judge Shedd's view on these 
     issues render him a poor choice for the Fourth Circuit and we 
     therefore urge you to oppose his confirmation.
           Sincerely,
         Wade Henderson, Executive Director, Leadership Conference 
           on Civil Rights; Nan Aron, President, Alliance for 
           Justice; Kate Michelman, President, NARAL; Elaine R. 
           Jones, President and Director-Counsel, NAACP Legal 
           Defense and Educational Fund; Hilary Shelton, 
           Director--Washington Bureau, NAACP; Ralph Neas, 
           President, People for the American Way; Nancy Zirkin, 
           Director of Public Policy, American Association of 
           University Women; Eleanor Smeal, President, Feminist 
           Majority; Jim Ward, Executive Director, ADA Watch; 
           Judith L. Lichtman, President, National Partnership for 
           Women and Families; Marsha Atkind, National President, 
           National Council of Jewish Women; Kim Gandy, President, 
           National Organization for Women (NOW); William Samuel, 
           Director--Department of Legislation, AFL-CIO; Patrishia 
           Wright, Director of Government Affairs, Disability 
           Rights Education and Defense Fund; Liza M. Maatz, Vice 
           President of Government Relations, NOW Legal Defense 
           and Education Fund.
                                  ____



                                  People for the American Way,

                                Washington, DC, September 4, 2002.
     Hon. Patrick J. Leahy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Leahy: On behalf of the more than 500,000 
     members and supporters of People For the American Way (PFAW), 
     we write to express our strong opposition to the elevation of 
     Judge Dennis Shedd to the United States Court of Appeals for 
     the Fourth Circuit.
       Judge Shedd's views on federalism are of grave concern. 
     Judge Shedd authored the original district court opinion in 
     Condon v. Reno, which struck down the Driver's Privacy 
     Protection Act based on his analysis that the federal 
     government did not have the power to require states to ensure 
     that driver's license records remain private. Although the 
     Fourth Circuit Court of Appeals agreed, an a unanimous 
     decision authored by Justice Rehnquist, the Supreme Court 
     unanimously reversed. PFAW is unaware of any other instance 
     in the last 50 years where a district court judge has struck 
     down an act of Congress on federalism grounds only to be 
     unanimously reversed by the Supreme Court.
       In Crosby v. South Carolina Dept. of Health and Envtl. 
     Control, Judge Shedd also struck down part of the Family and 
     Medical Leave Act (FMLA), holding that the 11th Amendment 
     doctrine of state sovereign immunity prevents an employee 
     from suing a State agency for violation of the FMLA. This 
     issue--because it calls into question Congress's power to 
     remedy sex discrimination in the workplace--has profound 
     implications for Congress's authority under Section 5 of the 
     14th Amendment.
       Judge Shedd has a troubling record on civil rights 
     enforcement. Throughout his eleven years as a federal 
     district court judge, Judge Shedd has dismissed almost every 
     civil rights case on behalf of minority claimants that has 
     come before him, thereby preventing the merits of these cases 
     from being heard by a jury.
       For example, in Bailey v. South Carolina Dept. of Social 
     Services, Judge Shedd granted summary judgment to the 
     employer, even though the Equal Employment Opportunity 
     Commission (EEOC) had determined there was reasonable cause 
     to believe that the African American plaintiff was not 
     promoted because of his race. In McMillan v. South Carolina 
     Dept. of Corrections, a case involving allegations of race 
     discrimination, Judge Shedd refused to allow the plaintiff's 
     claim to go to trial, despite a finding by another state 
     agency that Caucasian employees tended to receive higher 
     performance pay increases than African-American employees.
       In contrast, in four of the five cases filed in his court 
     by Caucasian plaintiffs alleging ``reverse discrimination'' 
     in employment, Judge Shedd denied summary judgment and 
     allowed the case to proceed to a jury trial.
       Judge Shedd's record also reflects insensitivity in civil 
     rights cases alleging discrimination based on gender. For 
     example, in Roberts v. Defender Services, Inc., a 
     recommendation of the federal magistrate and granted summary 
     judgment to the defendant. In Roberts, the record contained 
     evidence that the plaintiff's supervisor made sexual comments 
     to her on a daily basis, that she told him these comments 
     were offensive, that she and a female manager took steps to 
     report the conduct to corporate headquarters, and that she 
     resigned from her job. Despite this evidence, Judge Shedd 
     stated that while the supervisor's conduct ``clearly was, 
     from an objective standpoint, sufficiently severe and 
     pervasive to constitute a hostile and abusive work 
     environment,'' the plaintiff had not provided any evidence 
     that she ``subjectively perceived the environment to be 
     abusive.''
       A number of Judge Shedd's opinions reflect a disregard for 
     laws protecting the disabled. For example, in Payette v. 
     Westinghouse Electric Corp., Judge Shedd effectively read the 
     right of employees to ``reassignment,'' a crucial protection 
     for those with disabilities, out of the Americans with 
     Disabilities Act (ADA). Congress explicitly included 
     reassignment to a vacant position, when the person is no 
     longer able to do his or her job, as one type of 
     accommodation required by the ADA. In Givens v. South 
     Carolina Health Insurance Pool, Judge Shedd ignored the plain 
     meaning of the ADA when he approved a state health insurance 
     pool's refusal of coverage for a man who was HIV positive. No 
     other medical condition was excluded, and the state had done 
     no actuarial analysis to justify the exclusion of individuals 
     with HIV/AIDS. While many courts have held that the ADA does 
     not prevent insurance plans from providing lesser benefits 
     for treatment of particular types of disabilities, this 
     ruling goes beyond those decisions.
       Judge Shedd has exhibited a high level of insensitivity on 
     issues of race. In a recent case, Judge Shedd made several 
     insensitive comments as he dismissed a lawsuit aimed at 
     removing the Confederate battle flag from the South Carolina 
     statehouse dome. According to press accounts, Judge Shedd 
     suggested that South Carolinians, 30% of whom are African-
     American, ``don't care if that flag flies or not.'' He also 
     analogized the Confederate battle flag, to many a symbol of 
     support for slavery and racist acts of terror directed at 
     African-Americans, to the Palmetto tree, which is on the 
     South Carolina State flag, stating: ``What about the Palmetto 
     tree? What if that reminds me that Palmetto trees were cut 
     down to make Fort Moultrie and that offends me?''
       Given the importance of the Fourth Circuit and the current 
     ideological imbalance on the court, it is imperative that any 
     nominee to this court be a jurist of more moderate views who 
     will protect the civil and constitutional rights of all 
     Americans. Judge Shedd's record demonstrates that he is not

[[Page S11262]]

     the nominee. PFAW urges the Judiciary committee to reject his 
     nomination.
           Sincerely,
                                                    Ralph G. Neas,
     President.
                                  ____



                                        National Headquarters,

                                     Chicago, IL, August 24, 2002.
     Senator Patrick Leahy,
     Member, U.S. Senate,
     Washington, DC
       Dear Senator Leahy: Let me lend my voice of opposition to 
     the chorus of discontent surrounding the nomination of Judge 
     Dennis Shedd to the Fourth Circuit Court of Appeals. I urge 
     you to oppose the Shedd nomination, based on the merits, and 
     the merits alone. A seat on the Fourth Circuit is too 
     important to the nation's judiciary not to be heavily 
     scrutinized.
       As a native of South Carolina, I am deeply disturbed by the 
     direction taken by the Fourth Circuit in recent years. As a 
     Judicial Circuit with considerable influence on the Supreme 
     Court, those elevated to the Court should reflect the highest 
     American ideals of inclusion and equal protection under the 
     law. Moreover, the states included in the Fourth Circuit are 
     comprised of the highest percentage of African Americans, 
     than any other Circuit, thus judges on the Court must be 
     sensitive and respectful for the civil rights laws for which 
     we fought so hard.
       Currently, the Fourth Circuit is the most extremist court 
     in the nation on civil rights issues, criminal justice 
     issues, and those involving the power of the federal 
     government, to enact legislation, which holds States 
     accountable for civil rights violations. The nomination of 
     Dennis Shedd threatens to take the Court in a further 
     extremist direction. For example, Judge Shedd's opinion in 
     the Condon v. Reno case suggests that he favors disempowering 
     Congress. American judges, and their rulings should protect 
     rights, rather than restrict the balance of power.
       To preserve this nation's ideals of inclusion, and to 
     ensure equal protection under the law for all Americans, I 
     urge you, and other members of the members of the Senate 
     Judiciary Committee to vote ``No'' on the nomination of 
     Dennis Shedd.
           Sincerely,
     Reverend Jesse L. Jackson, Sr.
                                  ____

                                        South Carolina Legislative


                                                 Black Caucus,

                                  Columbia, SC, September 4, 2002.
     Re Fourth Circuit Nomination of Judge Shedd.

     Hon. Patrick J. Leahy,
     Chair, Senate Judiciary Committee,
     Washington, DC.
       Dear Senator Leahy: The South Carolina Legislative Black 
     Caucus (SCLBC) was formed in 1975 soon after the Civil Rights 
     Movement in the 1960's. Presently, the SCLBC has 31 members; 
     seven senators and 24 representatives, including four women. 
     The SCLBC is dedicated to the struggle for fairness, equality 
     and justice for all South Carolinians, and to the civic and 
     political involvement of African-Americans, women and other 
     racial and ethnic minorities.
       We seek to preserve the civil rights strides that occurred 
     in South Carolina over the decades, and we fight to prevent 
     any regressive step that threatens to rollback civil rights 
     and constitutional rights of African-Americans, women and 
     other racial and ethnic minorities. The nomination of U.S. 
     District Judge Dennis W. Shedd to the U.S. Court of Appeals 
     for the Fourth Circuit represents such a regressive step, and 
     accordingly, we strongly oppose the nomination.
       African-Americans constitute a full one-third of South 
     Carolina's population, yet there is only one active African-
     American federal judge in the state. And, there are only two 
     South Carolinian female federal judges, one on the federal 
     District Court and the other on the Fourth Circuit. This is 
     unfair and unjustified because there are many well-qualified 
     African-American and woman jurists and lawyers who deserve an 
     opportunity to serve this nation on the federal judiciary.
       Because African-Americans are one-third of South Carolina's 
     population and the Fourth Circuit has a greater number of 
     African-Americans than any circuit, it is critical that any 
     nominee, especially one from South Carolina, be an unabashed 
     champion of civil rights. The appointee should have a record 
     that demonstrates fairness and justice to all people. Based 
     on our careful review of Judge Dennis Shedd's performance on 
     the U.S. District Court for the District of South Carolina, 
     we have concluded that his record shows a serious hostility 
     to civil rights and constitutional protections.
       Since his appointment to the federal bench in South 
     Carolina, Judge Shedd has engaged in right-wing judicial 
     activism by imposing strict and exacting standards when 
     reviewing employment discrimination cases brought by African 
     Americans and women. He has dismissed almost every employment 
     discrimination, sexual harassment, civil rights and 
     disability case that has come before him. Judge Shedd seems 
     to believe that discrimination is not an actionable offense 
     even when the Equal Employment Opportunity Commission has 
     found ``reasonable cause'' that discrimination has occurred. 
     Judge Shedd, however seems to apply a more lenient standard 
     in reviewing discrimination cases brought by white men. Judge 
     Shedd has allowed four out of five ``reverse'' discrimination 
     cases to proceed beyond the summary judgment phase of 
     litigation.
       This record shows that Judge Shedd does not have an abiding 
     concern for civil rights and fairness. It further shows that 
     Shedd lacks the requisite moderate reasoning to bring balance 
     to the Fourth Circuit. In fact, his membership to the Fourth 
     Circuit would push it further beyond the mainstream of 
     American values and would subject South Carolinians and 
     residents of other states within the Fourth Circuit to an 
     extreme right-wing interpretation of the nation's civil 
     rights laws and constitutional protections.
       Accordingly we oppose Judge Shedd's nomination without 
     reservations. Hi values represents the Old South, where 
     African Americans and women were judged by different and 
     unequal standards.
       We appreciate your attention. If you have any questions, 
     please contact me at the address and telephone number above.
           Sincerely
                                                   Joseph H. Neal,
     Chairman.
                                  ____

                                      National Association for the


                                Advancement of Colored People,

                                Baltimore, MD, September 17, 2002.
     Re Fourth Circuit Nomination of Judge Shedd.

     U.S. Senate, Washington, DC.
       Dear Senator: On behalf of the NAACP, the nation's oldest, 
     largest and most widely-recognized grass roots civil rights 
     organization, I am writing to let you know of the 
     Association's strong opposition to the nomination of District 
     Court Judge Dennis W. Shedd to the Fourth Circuit Court of 
     Appeals. Delegates from every state in the nation, including 
     the five states comprising the Fourth Circuit, unanimously 
     passed a resolution from the South Carolina State Conference 
     in opposition to the nomination at the NAACP's annual 
     convention in Houston in early July.
       Members of the NAACP believe that the Federal judiciary, as 
     the final arbiter of the U.S. Constitution, is the branch of 
     government primarily charged with protecting the rights and 
     liberties of all Americans. In many instances in our nation's 
     history, the courts have been the only institution willing to 
     enforce the rights of minority Americans. We cannot afford to 
     permit the Federal judiciary to retreat from its 
     constitutional obligation and resort to the type of judicial 
     activism that threatens civil rights and civil liberties.
       No other federal circuit reflects this extreme right-wing 
     activism more than the Fourth Circuit Court of Appeal, which 
     is home to more African Americans than any other circuit. The 
     Fourth Circuit Court of Appeals' hostility to civil rights, 
     affirmative action, women's rights, voting rights and fair 
     employment is unrivalled. Its decisions are so far out the 
     mainstream that the Supreme Court has reversed the Fourth 
     Circuit on basic constitutional protections such as Miranda 
     warnings.
       Judge Shedd's addition to the Fourth Circuit would further 
     relegate that court to the periphery of judicial mainstream. 
     His judicial record and testimony before the Judiciary 
     Committee reflect a disposition to rule against the plaintiff 
     in employment and discrimination cases. Moreover, his 
     restrictive view of federal legislative authority, as 
     indicated in Condon v. Reno, 972 F. Supp. 977 (D.S.C. 1997), 
     which struck down the Driver's Privacy Protection Act of 
     1994, 18 U.S.C. Sec. Sec. 2721-25 and was later overturned in 
     a 9-to-0 decision by the Supreme Court, confirms our 
     perspective that Judge Shedd's judicial philosophy and 
     temperament would further push the Fourth Circuit to the 
     right-wing.
       Accordingly, as unanimously passed by the over 1,200 
     delegates to the 2002 NAACP National Convention, I ask that 
     you oppose the nomination and that you use your influence to 
     encourage the Senate Judiciary Committee to not vote him out 
     of Committee. However, if the nomination makes it to the 
     Senate floor, we ask you to vote against it.
       I appreciate your attention and interest in this important 
     matter. Please do not hesitate to contact me or Hilary 
     Shelton, Director of the NAACP Washington Bureau at (202) 
     638-2269, if we can be of assistance.
           Sincerely,
                                                      Kwesi Mfume,
     President & CEO.
                                  ____

         South Carolina State Conference, National Association for 
           the Advancement of Colored People,
                                      Columbia, SC, June 24, 2002.
     Senator Patrick Leahy,
     Chairman, Judiciary Committee, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Chairman Leahy: We write to oppose the nomination of 
     Dennis Shedd to the Fourth Circuit Court of Appeals.
       By now, you must be familiar with the importance of the 
     Fourth Circuit to the African American Community. Almost a 
     quarter of the Fourth Circuit's residents are African 
     American. The Fourth Circuit, with over 6 million African 
     Americans in the five states, has the greatest number of 
     African Americans of any Circuit Court in the country. The 
     Latino population within the Fourth circuit now at more than 
     one million persons, has nearly tripled in the last decade. 
     Based on these demographics, more may be at stake here for 
     the future of civil rights than in any other Circuit Court in 
     the country.
       The Fourth Circuit is already an extremely conservative 
     Court on civil rights and Constitutional issues. This Circuit 
     ruled that

[[Page S11263]]

     federal law-enforcement officials need not follow the Miranda 
     decision, only to be reversed by the Supreme Court. This 
     Circuit authorized drug testing for pregnant women without 
     their consent which was reversed by the Supreme Court. This 
     Circuit ruled that the Equal Employment Opportunity 
     Commission was limited to remedies contained in employee 
     arbitration agreements, and again, was reversed by the 
     Supreme Court. The Circuit also has been reversed recently in 
     capital habeas corpus cases and citizen suits under 
     environmental. laws. The Fourth Circuit has issued numerous 
     other opinions that are hostile to affirmative action, 
     women's rights, fair employment, and voting rights.
       This is also the Court to which moderate African American 
     nominees were repeatedly denied membership. No fewer than 
     four African Americans were nominated to this Court by 
     President Clinton, only to have their nominations languish 
     for years due to Senatorial obstruction. Thus, if a nominee 
     is to be confirmed to this Court, the nominee must be a 
     jurist who will bring moderation and ideological balance to 
     this Court. It is our strongly held view that this nominee is 
     not Dennis Shedd.
       Judge Shedd's judicial record reveals a deep and abiding 
     hostility to civil rights cases. A review of Shedd's 
     unpublished opinions reveals that Judge Shedd has dismissed 
     all but very few of the civil rights cases coming before him. 
     In nearly thirty case involving racial discrimination in 
     employment, he granted summary judgment for the employer in 
     whole or in part in all but one case; most of the cases were 
     dismissed altogether. Many of these cases were strong cases 
     with compelling evidence an litigated by experienced civil 
     right lawyers.
       Gender and disability discrimination cases before Judge 
     Shedd fare no better. He has granted summary judgment on 
     every sexual harassment claim on which summary judgment was 
     requested. Collectively, these ruling leave us with the 
     distinct impression that, in Dennis Shedd's view of the 
     world, discrimination does not exist, and just as 
     importantly, a jury should never be asked even to decide that 
     question.
       We are profoundly disturbed by the mounting evidence of 
     Judge Shedd's zealous efforts to assist the defense in civil 
     rights cases. There are repeated instances of Judge Shedd's 
     intervention in civil rights cases--without prompting by the 
     defendant--in ways that are detrimental to the plaintiff's 
     case. In a number of cases, Judge Shedd, on his own motion, 
     has questioned whether he should dismiss civil rights claims 
     outright or grant summary judgment. He has invited defendants 
     to file for attorney's fees and costs against civil rights 
     plaintiffs. These are not the actions of an impartial 
     decision-maker.
       We are extremely concerned about Judge Shedd's rulings 
     promoting ``States' rights,'' and view these as a fundamental 
     encroachment on Congress's ability to enact civil rights and 
     other legislation. Judge Shedd has a very restrictive view of 
     Congressional power. He struck down the Driver's Privacy 
     Protection act of 1994 as legislation beyond Congress's 
     power, although this legislation was an ``anti-stalking'' 
     measures designed to prohibit public disclosure of drivers' 
     license information. In an opinion authored by Chief Justice 
     Rehnquist, the Supreme Court unanimously overturned Judge 
     Shedd's ruling and refuted his reasoning. This stand as one 
     of the few occasions in which the Supreme Court rejected 
     unanimously a holding that Congress exceeded its power in 
     enacting a statute.
       The question of judicial temperament is raised by Judge 
     Shedd's offensive remarks during a judicial proceeding about 
     an issue that strikes at the heart of many--the Confederate 
     flag. Judge Shedd presided over a federal lawsuit seeking the 
     removal of the Confederate flag from the dome of the South 
     Carolina Statehouse. According to press accounts of a hearing 
     held in the case. Judge Shedd made several derogatory 
     comments about opposition to the flag. First, he attempted to 
     marginalize opponents to the flag by questioning whether the 
     flag matters to most South Carolinians. (It does, and thirty 
     percent of South Carolina's population is African American.) 
     He also minimized the deep racial symbolism of the flag by 
     comparing it to the Palmetto tree, which appears in South 
     Carolina's State flag.
       Our membership in South Carolina, deserves to be 
     represented on the Circuit by a nominee who has a record of 
     judicial impartiality, is committed to the progress made on 
     civil rights and individuals liberties, and has a deep 
     respect for the responsibility of the federal judiciary to 
     uphold that progress. Dennis Shedd is not that nominee. We 
     urge you and the Senate Judiciary Committee to vote against 
     his nomination.
           Sincerely,
                                                    James Gallman,
     President.
                                  ____

                                         The National Black Caucus


                                         of State Legislators,

                               Washington, DC, September 19, 2002.
     Hon. Patrick J. Leahy,
     U.S. Senate, Chair, Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.
     Re Fourth Circuit Nomination of Judge Shedd.

       Dear Senator Leahy: The National Black Caucus of State 
     Legislators (NBCSL) is the body that represents some 60 
     African American state legislators in 44 states, the District 
     of Columbia and the U.S. Virgin Islands. Last year, we 
     celebrated our 25th year of involvement and dedication to 
     many of the most pressing social issues and policies that 
     impact our legislators' districts and the nation at large. 
     Our commitment is to our constituents as well as the national 
     agenda. Our dedicated work is to maintain the highest values 
     of civil and human rights insuring that African Americans are 
     a fair and representative part of the political and social 
     equations of this great nation.
       In their letter to you, dated September 4, 2002, members of 
     the South Carolina Legislative Black Caucus have spoken 
     clearly and definitively in opposing the nomination of Judge 
     Dennis Shedd to the Fourth Circuit. In reviewing the 
     information presented therein and having also researched the 
     history and record of Judge Shedd, we find it woefully 
     deficient regarding the issues of fairness, equality and 
     justice. Moreover, as has been pointed out by our colleagues 
     in South Carolina ``African Americans constitute a full one-
     third of South Carolina's population yet there is only one 
     active African American federal judge in the state.'' In that 
     there are unquestionably ``many, well-qualified African 
     American . . . jurists'' in South Carolina, this is rightly 
     seen as an unfair and unequal treatment in the sight of fair 
     representation. Further, considering the existent 
     disproportionate representation of jurists of Color, 
     certainly an effort must be made to insure that any South 
     Carolina nominee be a strong advocate of civil and human 
     rights. Rather, Judge Shedd's performance on the U.S. 
     District Court for the District of South Carolina 
     demonstrates what could be construed as hostile to civil and 
     constitutional rights.
       We have learned that Judge Shedd's insensitivity to 
     fairness has been demonstrated in his review of employment 
     discrimination cases brought by African Americans and in 
     fact, women, even in such cases when the Equal Opportunity 
     Commission has found ``reasonable cause.'' But, we have also 
     found that in furtherance of this questionable action, when 
     white men bring cases of ``reverse'' discrimination, those 
     cases proceed. We also note that there have been concerns 
     raised about the number of unpublished opinions issued by the 
     Judge and further that such concerns regarding the decisions 
     were reversed or vacated by the Fourth Circuit Court of 
     Appeals.
       The Fourth Circuit must have a judge who is mindful of the 
     rightful place that African Americans have in this nation, 
     and be a strong advocate of civil rights, human rights and 
     constitutional rights. Any nominee should have demonstrated 
     his dedication to such virtues and ideals. No other 
     individuals should be considered for this important position.
       For these reasons among others raised by our South Carolina 
     Legislative Black Caucus, we cannot support the nomination of 
     Judge Dennis Shedd for the Fourth Circuit and would ask that 
     the opinion of our body be strongly considered in this 
     matter. Should you have any questions, or require additional 
     comment, please contact me.
           Very truly yours,
                                                  James L. Thomas,
                                                        President.

  Mr. LEAHY. Before yielding the remainder of my time, I first say to 
my friend from Utah, he has been very patient but then he has told us 
before he is a patient man.
  I yield the floor.
  Mr. HATCH. I thank my colleague.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have been listening to this recitation of 
various cases involving Judge Shedd, and I have to say I certainly have 
a different viewpoint. Let me go through those cases in approximately 
the order that the distinguished Senator from Vermont listed them.
  My colleague referred to Shults v. Denny's Restaurant. This was an 
Americans with Disability Act and slander case where Judge Shedd sua 
sponte considered summary judgment and ordered the plaintiff to file a 
memorandum in opposition to the court's sua sponte motion for summary 
judgment. This action by Judge Shedd was again based on jurisdictional 
defenses raised in the defendant's answer: Failure to file within the 
2-year statute of limitations and failure to exhaust the administrative 
Equal Employment Opportunity Commission review.
  In the order, requesting the plaintiff to file a memorandum, Judge 
Shedd wrote:

       Although the express language of rule 56 provides only for 
     the parties to move for summary judgment, Federal district 
     judges possess the inherent power to raise, sua sponte, an 
     issue for possible resolution by summary judgment.

  Therefore, Judge Shedd had the right to bring this motion under the 
Rules of Civil Procedure.
  My colleague refers to Lowery v. Seamless Sensations. This was a 
title VII case in which the defendant raised the defense that the 
plaintiff failed to timely file both a charge of discrimination with 
the EEOC and the lawsuit.

[[Page S11264]]

Both are jurisdictional prerequisites to any Federal court action.
  Since that defense called into question the court's subject matter 
jurisdiction, Judge Shedd expedited consideration of those defenses. 
Remember, it would serve no purpose for the court to proceed on the 
merits where the court had no jurisdiction. In order to expedite 
consideration of the issues, Judge Shedd ordered the defendant to file 
a motion to dismiss based on those defenses. Judge Shedd further 
ordered that motion should be filed in his court instead of the 
magistrate court assigned to the case. Ultimately, the defendant was 
granted summary judgment on the grounds that the plaintiff could not 
establish a prima facie case. Therefore, the case survived the above-
discussed motion to dismiss, evidencing that although he raised the 
issue, Judge Shedd fairly evaluated the merits of the case.
  In another matter, my colleague makes a special mention of Coker v. 
Wal-Mart. Let's look at this case to see where again my colleague gets 
it wrong. In this case, the defendant removed the case from State to 
Federal court. Judge Shedd sua sponte questioned whether removal was 
appropriate, as it appears the motion for removal had been filed 
outside the 30-day time limitation established in 28 U.S.C. section 
1446(b). Doubting whether he had the authority to remand the case sua 
sponte, Judge Shedd stated he would permit the defendant to file a 
brief addressing whether removal was timely and whether the court had 
authority to remand.
  Rather than assisting the defense, Judge Shedd raised the issue of 
remand, and held the defendant to the proper burden of showing that 
removal was proper. He aided the plaintiff, who had apparently failed 
to raise the issue, this is exactly the opposite of what the 
distinguished Senator from Vermont has said. Judge Shedd had a duty to 
raise the removal issue, a purely jurisdictional matter, and he gave 
the defendant the opportunity to challenge his sua sponte action, which 
is what a good judge would do.
  My colleague also refers to Gilmore v. Ford Motor Company, a product 
liability case. In that case, Judge Shedd sanctioned the plaintiff for 
failure to prosecute the action by dismissing the case. He made that 
determination after he properly evaluated each of the factors 
established by the Fourth Circuit in Ballard v. Carson. Indeed, my 
colleague in the Senate worries more about this case than did the 
plaintiff. The plaintiff failed to respond to this motion to dismiss 
for failure to prosecute after earlier failing to respond to the 
defendant's motion to compel discovery.
  Notably, my colleague did refer to Simmons v. Coastal Contractors, 
Inc., a discrimination and retaliation employment case in which both 
parties represented themselves pro se. Judge Shedd sua sponte brought 
the petitioners before the court and ordered the plaintiff to cure 
specific deficiencies in his complaint or face dismissal. This decision 
was an attempt to aid the plaintiff in properly drafting his complaint.
  My colleague refers to Tessman v. Island Ford-Lincoln-Mercury, a 
title VII case, where Judge Shedd sua sponte challenged the court's 
subject matter jurisdiction, given the plaintiff's apparent failure to 
allege that she had first presented her claim to the EEOC and received 
a right-to-sue letter. He ordered the action dismissed unless the 
plaintiff could show cause why that action should not be taken by the 
court. This is a wholly appropriate approach and probably the only 
approach that could have been taken by any good judge.
  My colleague refers to Smith v. Beck, a 1983 gender discrimination 
case in which several women alleged discrimination when they were not 
admitted, without male escorts to a nightclub featuring nude female 
dancers. Judge Shedd sua sponte questioned whether the plaintiffs' 
allegation sufficed to establish the defendant private club's actions 
were under color of State law. Based on his conclusion that merely 
operating an establishment that has a State liquor license does not 
transform a club into a State actor, Judge Shedd dismissed the case. In 
other words, he analyzed the law, as he should.

  In short, my colleague has suggested that Judge Shedd ``assists the 
defense.'' That is so highly misleading a charge it is hard to take it 
seriously. But I suppose I must since it has been raised. The truth is 
that a judge's discretion in assisting either side to get their case 
right is fairly wide, but within bounds that Judge Shedd has not 
crossed. The Supreme Court of the United States has written:

       [D]istrict courts are widely acknowledged to possess the 
     power to enter summary judgments sua sponte, so long as the 
     losing party was on notice that she had to come forward with 
     all of her evidence.

  The Fourth Circuit Court of Appeals held that:

       It is a fundamental precept that Federal courts are courts 
     of limited jurisdiction, constrained to exercise only the 
     authority confirmed by Article III of the Constitution and 
     affirmatively granted by Federal statute. A primary incident 
     of that precept is our duty to inquire, sua sponte, whether a 
     valid basis for jurisdiction exists, and to dismiss the 
     action if no such ground appears.

  The truth is that in each of the cases in which Judge Shedd acted sua 
sponte, he provided the proper notice and opportunity to respond to the 
plaintiff.
  Perhaps my colleague will be less troubled than he appears to be when 
he learns that none of the cases he refers to where Judge Shedd 
supposedly assisted the defense were reversed on appeal. Not one. It 
seems it would be best to leave the litigation of cases to the parties, 
lawyers, and judge involved rather than second-guess them on the floor 
of the Senate.
  I, for one, am getting a little tired of some of our colleagues on 
the other side acting as if every plaintiff's case has to be won no 
matter what the facts and the law support. Actually, some of those 
cases have to be lost because they are not good cases.
  Now let's just be honest about it. Cases are decided by judges and 
jurors--judges in nonjury cases and juries in jury cases. I have seen a 
lot of cases where plaintiffs have not won because they should not have 
won. To criticize judicial nominees for ruling against plaintiffs is 
nonsensical because every judge should decide against plaintiffs when 
they are wrong. It does not take brains to figure that out. But I guess 
for some on the other side, unless the plaintiff wins there is an 
injustice.
  My colleague criticizes Judge Shedd's ruling in Condon v. Reno with 
the aim of characterizing his judicial ideology in the process.
  I was shocked to learn by one of Judge Shedd's detractors that he is 
a ``sympathetic participant in [a] judicial campaign to disempower 
Congress,'' and that he is a judge who ``resort[s] to outdated and 
reactionary views of federal power.''
  I am sure this came as a surprise to Judge Shedd as well.
  Condon v. Reno concerned the Driver's Privacy Protection Act. Judge 
Shedd held in Condon that the Act violated the Tenth Amendment in that 
it improperly commanded states to implement federal policy.
  The 4th Circuit affirmed Judge Shedd's ruling, while the Supreme 
Court ultimately reversed it. But this was clearly a difficult call to 
make; in fact, the lower federal courts that addressed the issue split 
evenly before the Supreme Court ruling, eight finding the Act 
constitutional and eight finding it unconstitutional.
  Those finding the Act unconstitutional together with Judge Shedd 
included Judge Barbara Crabb, Chief Judge of the Western District of 
Wisconsin, a Carter appointee, and Judge John Gobold of the 11th 
Circuit, a Johnson appointee. Several Democrat Governors across the 
nation, including Democrats Jim Hunt of North Carolina, Jeanne Shaheen 
of New Hampshire and Don Siegelman of Alabama permitted their 
respective State Attorneys General to sign onto an amicus brief urging 
the Supreme Court to find the Act unconstitutional.
  In addition, the Democrat Attorney General of Wisconsin also signed 
the amicus brief. So, reasonable minds can differ on these matters.
  It seems to me that either the vast right wing campaign to 
``disempower'' Congress is either much larger than previously supposed, 
or that this was a case in which thoughtful, and respected judges 
could, and indeed did, disagree.
  Of course, my colleagues ignore another federalism case of Judge 
Shedd's United States v. Brown. That case involved the Gun Free School 
Zones Act.
  The defendant challenged the constitutionality of the Act on 
federalism

[[Page S11265]]

grounds. Judge Shedd allowed the prosecutor to prove facts at trial 
that the Act was a valid exercise of Congressional power.
  The Supreme Court later invalidated the Gun Free Zones Act in United 
States v. Lopez. Unlike the Condon v. Reno, Judge Shedd upheld the 
exercise of federal power, yet not surprisingly, his critics point us 
to the Condon case but not to the Brown case.
  That is amazing to me.
  My colleague again comments on Judge Shedd's ruling in Crosby v. 
South Carolina Department of Health.
  Interestingly he did not raise the same objections to Judge Roger 
Gregory who ruled to uphold Judge Shedd's ruling when he was before us 
last year. One wonders why?
  Judge Shedd is criticized for adopting a magistrate report striking 
down as unconstitutional part of the Family Medical Leave Act after a 
state agency cited 11th amendment sovereign immunity against an 
employee lawsuit.
  Of course, the fact that eight of nine Circuit Courts have agreed 
with his ruling seems not to concern my colleagues, including the 
First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Eleventh 
Circuits.
  In fact, numerous Democrat-appointed judges agreed with Judge Shedd, 
including Carter appointees Amalya Kearse of the First Circuit, Richard 
Arnold of the Eighth, and Robert Anderson of the Eleventh; and Clinton 
nominees Sandra Lynch and Kermit Lipez of The First Circuit, Theodore 
McKee of the Fourth, Kermit Bye of the Eighth, Jose Cabranes of the 
Second Circuit, and Roger Gregory of the Fourth Circuit. Those are 
able, distinguished judges.
  It should not come as any surprise that the Ninth Circuit is the only 
Circuit Court which has ruled the other way.
  One would think from this near universal agreement that Judge Shedd's 
ruling in Crosby would seem reasonable one, one well within the 
judicial mainstream, no matter how we look at it. And yet he is 
criticized for it here on the floor.
  In the area of Criminal Justice, my colleague makes special mention 
of the Quattlebaum murder case. Let's look at that case to see where my 
colleague gets it all wrong.
  In that case, officers took into custody a murder suspect, Mr. 
Quattlebaum. During police questioning of Quattlebaum, which 
Quattlebaum was informed was being videotaped, the deputy sheriff left 
the room. Soon after the deputy sheriff left the room, he went to the 
room where the videotaping was being done and noticed that an attorney 
was now in the room with Quattlebaum, despite the fact that no one was 
to have access to that room other than law enforcement. The deputy 
sheriff immediately consulted with superiors and legal advisors as to 
what to do about the running videotape, but the damage--i.e., recording 
an attorney-client conversation--had already been done.

  In response to the videotaping, prosecutors indicted the deputy 
sheriff for a civil rights violation. Mr. Quattlebaum's attorney, on 
the other hand, about whom my colleague appears concerned, ended up 
being indicted for perjury based on his grand jury testimony that he 
had not released the protected videotape to the media, and spent 4 
months in prison.
  The deputy sheriff pled guilty to charges based on the videotaping of 
the attorney-client conversations.
  My colleague has expressed concern that the deputy sheriff who 
conducted the improper videotaping was not more heavily penalized by 
comparison to the defendant's attorney who perjured himself after 
releasing the protected tape to the media.
  That concern is easily assuaged. The sentencing range in the 
guidelines for the offense to which the deputy sheriff pled guilty was 
zero to six months imprisonment, one year of supervised release, and a 
fine of $1,000 to $10,000. The Government moved for a downward 
departure of the zero to six months jail time for the police officer 
based on his assistance in the prosecution of related matters.
  As Judge Shedd acknowledged during the sentencing hearing, in order 
to depart downward, he had to issue a sentence that was less than the 
minimum in the guidelines range, i.e., since less than zero time in 
prison is not possible, Judge Shedd, in accepting the downward 
departure request had to impose a fine that was less than $1,000 and 
could not impose any jail time on Mr. Grice.
  Judge Shedd's sentencing decisions were controlled by the crimes 
charged and the related sentencing guidelines enacted by Congress. 
Judge Shedd's sentence of a fine without jail time was mandated by the 
guidelines once the government's request for downward departure was 
accepted.
  My colleague's concern for the trail lawyer who served 4 months for 
perjury, after releasing a privileged videotape to the media, is not 
altogether clear to me, especially since that unethical conduct caused 
a convicted murderer to escape his sentence.
  The concern is also strange given that my colleague expressed the 
opposite concern with regard to Judge Charles Pickering for questioning 
the inequitable result of mandatory sentencing guidelines.
  Look, let me just bring this to an end by reading a letter of one of 
the attorneys involved in that case. This is a letter to me by E. Bart 
Daniel, attorney at law in Charleston, SC. It is regarding the 
nomination of Dennis W. Shedd to the Fourth Circuit Court of Appeals.

       Dear Senator Hatch: I have been a practicing attorney in 
     South Carolina for over 22 years. During my career, I have 
     served as an Assistant State Attorney General, an Assistant 
     U.S. Attorney, a United States Attorney under the previous 
     President Bush and an active federal trial attorney. My 
     practice over the years has developed into primarily a 
     ``white collar'' criminal defense practice. I have appeared 
     many times in court before Judge Shedd and found him to be 
     courteous and fair. He has exhibited great integrity and a 
     strong character while on the bench.
       One of the most difficult cases in which I appeared before 
     Judge Shedd was in United States v. John Earl Duncan (3:99-
     638-001). Mr. Duncan was a practicing attorney who was 
     convicted of perjury. Judge Shedd sentenced him to four 
     months in a federal penitentiary and four months in a 
     community confinement center (halfway house). He fined him 
     $33,386.92. Judge Shedd's decision was a difficult one, but 
     fair. As his counsel, we recognized that Judge Shedd would be 
     compelled to sentence Mr. Duncan to an active term of 
     incarceration since he was a practicing attorney who had been 
     convicted of lying to a federal grand jury.
       During the sentencing phase of the Duncan case, Judge Shedd 
     was courteous and patient and listened intently to the many 
     people who spoke on our client's behalf including my co-
     counsel Dale L. DuTremble and me.
       I know of no judge more qualified for the position than 
     Judge Shedd. If you have any questions or I can be of any 
     further support, please do not hesitate to call.

  That ought to put that to bed.
  In all honesty, the charges against Judge Shedd that have been raised 
are shameful; absolutely shameful. It makes you wonder. Why? Why are we 
putting a really fine Federal district court judge who served almost 13 
years on the bench with a distinguished record through this type of 
bitter and I think shameless set of accusations?
  We had originally agreed with the Democrat leadership to confirm 
Judge Shedd late last week along with other judicial nominees by 
unanimous consent, but instead, base politics appears to have 
intervened. I am hopeful we can get this done tomorrow.
  According to an article by Byron York in National Review Online on 
Friday afternoon, it is clear what happened. He writes that, after the 
Shedd vote in the Judiciary Committee on Thursday, the usual left-wing 
groups, including, he writes, People for the American Way, Leadership 
Conference on Civil Rights, Alliance for Justice, and the National 
Abortion Rights Action League, all urged Democrat Senators ``to 
continue the fight against Dennis Shedd in the full Senate.'' He quotes 
one leader as warning that, ``controversy will follow these nominations 
to the Senate floor.''
  Here we are about to engage in the longest debate on a Senate nominee 
on the Senate floor this year. The special interest groups said jump, 
and so today we will jump high, and I guess tomorrow as well.
  I am not complaining entirely. I am grateful to the distinguished 
chairman. I know it is a tough job to be chairman of the Judiciary 
Committee, and I hope this is not his fault. I am not shy of any debate 
on the President's superbly qualified judicial nominees.
  But I do fear that, once again the American people will roll their 
eyes that, when we have as much to do in the Senate that is still 
undone, the leadership would think that a divisive

[[Page S11266]]

and lengthy debate on a judicial nominee is a good idea.
  But I understand why it is happening. I am not a newcomer here. It 
appears to be happening because of the Louisiana Senate election.
  It has been rumored and reported that the Northern liberals who hold 
the money strings and the liberal special interest groups here in 
Washington who claim to represent African American interests--have said 
that the money won't flow and folks won't help get out the vote in 
Louisiana unless Judge Dennis Shedd, Senator Thurmond's former counsel 
gets slowed down yet again.
  (Mr. ROCKEFELLER assumed the Chair.)
  Mr. HATCH. Now, look, most of us who have served on the Judiciary 
Committee for a number of years have known Judge Dennis Shedd. He was 
chief of staff to Senator Thurmond when he was chairman of the 
committee, and his chief counsel when he was not chairman.
  I have known him for most of my time in the Senate. He is one of the 
finest people I have ever known. He is also one of the better Federal 
district court judges in the country. Judge Shedd is a decent man. I 
resent his being dragged through this process for months, as he has 
been. Senator Thurmond's last request has gotten slowed down again.
  Now, I am grateful we are going to have a vote on him tomorrow, up or 
down. I surely hope my colleagues will look at his record, and not look 
at the distortions of his record, and will vote for him and will 
support Senator Thurmond and those of us who know him, and know him 
well.
  I think some have trouble getting the message. The message I got from 
the recent election is perhaps different than what my colleagues across 
the aisle received. As far as I see it, the President took three issues 
to the American people: his Iraq policy, homeland security, and his 
judicial nominees. Of course, he had other issues, but those were the 
three primary issues.
  The election showed that Americans trust this President, including in 
his selection of judicial nominees. The election indicated voters 
rejected the obstruction in the Senate we experienced this last year, 
including on judicial nominees. Voters especially rejected the 
shrillness and the distortions of reputations they read and heard about 
in hundreds of news stories, scores of editorials, and dozens of op-
eds, and those they saw on TV. Voters sent us a clear message, it seems 
to me, that we should end the obstruction and maltreatment of judicial 
nominees, and yet here we are about to engage in hours of debate that 
will largely see the race card played, and the role of judges--and one 
judge, in particular--distorted and mischaracterized.
  Today, at the behest of the so-called Washington civil rights lobby, 
now a wholly owned subsidiary of plaintiffs' trial lawyers, my friends 
on the other side will spend a business day describing an experienced 
judge as biased, as pro this and anti that, and now I am afraid some of 
my Democratic colleagues can no longer evaluate judges as unbiased 
umpires who call the balls and strikes as they are, not as they alone 
see them, and not as they want them to be.
  Now, it is silly to suggest an umpire is pro bat or pro ball or pro 
batter or pro pitcher, but, of course, trial lawyers, and those who 
shill for them, have an interest in exactly such scorekeeping. To say 
all plaintiffs have to win all cases is just nuts, but yet that is what 
we have been getting lately.
  But even this is not what bothers me the most about the debate that 
has been scheduled today. I am reminded of what my friend Senator 
Kennedy said in 1982 about those who opposed extending the Voting 
Rights Act. Senator Kennedy lamented in 1982 that ``there are those 
among us who would open old wounds . . . [and] refight old battles.''
  Mr. President, they say the more things change, the more they stay 
the same--well, almost the same.
  Now, with that regret expressed, I wish to express my 
great satisfaction that the Judiciary Committee has favorably 
recommended the nomination of Judge Dennis Shedd of South Carolina for 
a vote of the full Senate.

  Mr. President, Senators feel very strongly about their staffs. Our 
legal counsels make uncounted sacrifices to work for us and for the 
American people. We are surrounded by very talented lawyers who forego 
larger salaries for the sake of public service. Sometimes they put 
their personal opinions aside to advocate ours.
  We Senators take it very personally when they are nominated and given 
the opportunity for yet higher public service. It has been the 
tradition of the Judiciary Committee to give great courtesy to former 
staffers. I certainly take it very personally, and know Senator 
Thurmond does, too, that we have not done so in the case of Dennis 
Shedd, who has served with distinction for the last 12 years as a 
Federal district court judge in South Carolina.
  When Judge Shedd was nominated to the Federal trial bench, Chairman 
Biden had this to say to him:

       I have worked with you for so long that I believe I am 
     fully qualified to make an independent judgment about your 
     working habits, your integrity, your honesty, and your 
     temperament. On all these scores, I have found you to be 
     beyond reproach.

  Now, this is high praise indeed from a colleague on the other side of 
the aisle for whom we all have the greatest respect. Judge Shedd has 
strong bipartisan support in his home State as well, and not only from 
Senator Thurmond and Senator Hollings--a Republican and a Democrat--he 
is also strongly supported by Dick Harpootlian, South Carolina State 
chairman of the Democratic Party, and himself a trial lawyer.
  Let me just say that again. Judge Shedd is not only supported by my 
distinguished Democrat colleague, Senator Hollings, but also by the 
Democratic Party chairman in South Carolina. This suggests a reality 
far from the slogans and distortions launched against President Bush's 
nominees, and in particular Judge Shedd.
  First, it has been suggested that Judge Shedd will add to what 
liberals and plaintiffs' trial lawyers perceive as conservative appeals 
court--or at least on the issues that profit them. But contrary to the 
divisiveness card that his detractors are playing, Judge Shedd will add 
diversity to that Court.
  Mr. President, Dennis Shedd has served as a federal jurist for more 
than a decade following nearly twenty years of public service and legal 
practice. While serving the Judiciary Committee, Judge Shedd worked, 
among many other matters, on the extension of the Voting Rights Act, 
RICO reform, the Ethics in Post-Employment Act, and the 1984 and 1986 
crime bills.
  As Senator Biden put it: ``His hard work and intelligence helped the 
Congress find areas of agreement and reach compromises.''
  That leads me to address a few issues that have been raised by his 
detractors.
  Mr. President, the last five Fourth Circuit confirmations have all 
been Democrats.
  What seems to me more important to focus on--and what the American 
people want us to focus on--is that when Judge Shedd joins the other 
members of the Fourth Circuit, he will not only have unmatched 
legislative experience, he will also have the longest trial bench 
experience on the Fourth Circuit Court of Appeals.
  Interestingly, by way of disproving some of my colleagues' diversity-
mania, the last Democrat confirmed to the Fourth Circuit Court of 
Appeals, Judge Gregory, has affirmed Judge Shedd's rulings in 11 
appeals. Notably, Judge Gregory agreed with Judge Shedd's ruling in the 
Crosby case, which found that the Family and Medical Leave Act was 
improperly adopted by Congress, a case which the liberal groups seem 
worked up about when it comes to Shedd but not when it came to Judge 
Gregory. No one asked Judge Gregory about his ruling in Crosby when he 
was before the Judiciary Committee last year. But may Democrat 
colleagues drilled Judge Shedd on it. Talk about discrimination.
  Mr. President, Judge Dennis Shedd has heard more than 5,000 civil 
cases, reviewed more than 1,400 reports and recommendations of 
magistrates, and has had before him nearly 1,000 criminal defendants.
  Judge Shedd's record demonstrates that he is a mainstream judge with 
a law reversal rate. In the more than 5,000 cases Judge Shedd has 
handled during his 12 years on the bench, he has been reversed fewer 
than 40 times--less than 1 percent.

[[Page S11267]]

  Detractors have made much of the fact that he has relatively few 
decisions he has chosen to publish. But, in fact, he falls in the 
middle of the average for published opinions in the Fourth Circuit. One 
Carter appointee has published all of 7 cases, one Clinton appointee 
has published only 3, and another Carter appointee has published 51, 
only one more than Judge Shedd, despite being on the court for 10 years 
longer.
  Judge Shedd is known for his fairness, for his total preparation, and 
for showing no personal bias in his courtroom. This is not just my 
opinion; this reflects the opinions of lawyers who practice before him. 
Judge Shedd is well-respected by members of the bench and bar in South 
Carolina. According to the Alamanc of the Federal Judiciary, attorneys 
said that Judge Shedd has outstanding legal skills and an excellent 
judicial temperament.
  Here are a few comments from South Carolina lawyers: ``You are not 
going to find a better judge on the bench or one that works harder,'' 
``He's the best federal judge we've got.'' ``He gets an A all around.'' 
``It's a great experience trying cases before him.'' ``He is polite and 
businesslike.''
  Let me take a moment also to address one of the more ludicrous 
attempts to discredit Judge Shedd that has been raised: that when he 
was confirmed to the District Court bench he had little experience in 
the practice of law.
  I have to say that to ignore the remarkable experience Dennis Shedd 
had in legislation practice crafting historic laws while serving the 
Judiciary Committee is some chutzpah. To raise an objection like that 
almost 13 years after the fact is just plain silly. But it goes to show 
what we have to put up with in the obstruction and distortions of this 
past year.
  Let's be clear, when Judge Shedd joins the other members of the 
Fourth Circuit, he will not only have unmatched legislative experience, 
he will also have the longest trial bench experience on the Fourth 
Circuit. He will also add some diversity to that court. The last five 
Fourth Circuit confirmations have all been Democrats.

  I have to say that the most misleading criticism raised about Judge 
Shedd involves his employment cases.
  Downright deceptive is that Judge Shedd's detractors, the outside 
liberal groups, have now taken to grouping and describing employment 
cases as civil rights cases.
  They want us to believe that every quarrel between an employee and 
her employer rises to a Rosa Parks significance. No doubt every 
plaintiff's trial lawyer would like to think of themselves as a 
Thurgood Marshall. But this deception is unfortunate and a disservice 
to the cause of civil rights that I have longed championed in this 
Chamber.
  Cloaking every small, perhaps even frivolous, employment case with 
the mantle of the civil rights movement, Washington's professional 
nominee detractors have been particularly misleading on Judge Shedd's 
employment cases.
  They have misleadingly pointed out that the Judge seldom grants 
summary judgment in employment cases in favor of the employee. Of 
course, they fail to point out that few judges do. Any good lawyer 
knows that. Summary judgment is a judgment without a jury, and every 
good lawyer knows that employment cases are inherently fact-laden and 
go to trial by a jury or more often they settle. Or in many cases, the 
employee fails to state a claim and the case has to be dismissed.
  Of course, Judge Shed's detractors could have noticed that he has 
only twice been reversed in his decisions in employment cases. But of 
course, they did not notice that.
  They might have pointed out that in one of the appeals that he was 
invited to hear for the Fourth Circuit, he reversed a summary judgment 
and remanded for trial a political discrimination case against a worker 
who was a Democrat. But they did not do that either.
  Judge Shedd's detractors have also made irresponsible claims as to 
the Judge's criminal case record.
  In fact, in criminal cases, Judge Shedd has strongly defended 
citizens due process rights from violation by the state. He has 
frequently chastised law enforcement for errors in search warrants an 
the questionable use of seized property. In fact, he has sanctioned the 
State for discovery problems. He is known for aggressively informing 
defendants and witnesses of their fifth amendment rights.
  Remarkably, Judge Shedd has never been reversed on any ruling 
considered before or during trial, or on the taking of guilty pleas. 
His detractors have somehow failed to note this.
  The cases that come before a judge are often difficult. Judge Shedd 
has not been exempted. In one prisoner's case, Judge Shedd allowed a 
detainee to engage in a hunger strike and ruled against government's 
attempt to force feed him.
  Although some would seek to question Judge Shedd's respect for 
privacy in criminal cases, into cases he protected HIV blood 
donor's confidentiality. In another case, he ordered special 
accommodations to an HIV positive defendant to ensure his continued 
clinical treatment.

  These are not the rulings of a judge who is insensitive to prisoners 
and criminals, but this is the record of a judge who works hard to get 
the work of law enforcement right.
  Of course, no smear campaign against a Bush judicial nominee, paid 
for plaintiffs' trial lawyers, and carried out by their left-wing 
lobbyists, is complete without the suggestion that the nominee is foe 
of environmental rights.
  Of course, in their paint-by-the-numbers attack, Judge Shedd's 
detractors have ignored the wetlands protection case where he handed 
down tough sanctions against a violator and ordered expensive wetlands 
restoration.
  The left-wing detractors skipped over Judge Shedd's decision in favor 
of National Campaign to Save the Environment.
  They missed his ruling to grant standing to a plaintiff challenging a 
road construction project on its environmental impact.
  They missed his ruling in favor of a woman protesting possible waste 
dumping in her community.
  The well-paid, left-wing lobbyists who have turned attacking 
President Bush's judicial nominees into a small cottage industry see 
only what they want to see and not what the truth would show them.
  The most breathtaking charge against Judge Shedd was first made by 
the NAACP that Judge Shedd has--``a deep and abiding hostility to civil 
rights.''
  I must admit that was outraged by this when I first read it, and I 
still am. It is a distortion far beyond the pale of decency, and I call 
on my colleagues once again to repudiate such rabid practices.
  In part, I am outraged because there are some who would profile Judge 
Shedd as merely a white male from the South and start from there to 
give him a certain treatment.
  If Judge Shedd's record working for civil rights legislation on the 
Judiciary Committee were not enough of an accomplishment for one 
lifetime for any man or woman, the truth is that in each of the cases 
that have come before Judge Shedd involving the Voting Rights Act of 
1965, plaintiffs have won their claims.
  In the Dooley case, a one person/one vote case, Judge Shedd gave the 
plaintiff a clear and strong decision. In another political rights 
case, he ruled to protect the plaintiff's right to make door-to-door 
political solicitations.
  Of course, Mr. President, you know a lot about a judge by how they 
conduct their courtroom. As you know, I have been a strong advocate for 
the protection of religious practices in the public square. It says a 
lot about Judge Shedd, especially in these times, that he has allowed 
religious headdress in his courtroom.
  Judge Shedd also led efforts to appoint the first African American 
woman ever to serve as a magistrate judge in South Carolina and has 
sought the Selection Committee to conduct outreach to women and people 
of color in filling such positions. He pushed for an African American 
woman to be chief of pretrial services. He has actively recruited 
persons of color to be his law clerks.
  And because of Judge Shedd's work in an award-winning drug program 
that aims to reverse stereotypes amount 4,000 to 5,000 school children, 
he was chosen as the United Way's School Volunteer of the Year.

[[Page S11268]]

  The Judiciary Committee received a very touching letter from one of 
Judge Shedd's former law clerks, Thomas Jones, that we have blown up 
here. Perhaps the Presiding Officer will be able to read it from the 
chair.

  The letter says:

       Dear Senator Leahy: My name is Thomas W. Jones, Jr. I am an 
     African American attorney currently practicing as a 
     litigation associate in Baltimore, MD. Upon my graduation 
     from the University of Maryland School of Law, I had the 
     distinct pleasure of serving as a judicial clerk for the 
     Honorable Dennis W. Shedd on the U.S. District Court for the 
     District of South Carolina. During my 18 months of working 
     with Judge Shedd, I never encountered a hint of bias, in any 
     form or fashion, regarding any aspect of Judge Shedd's 
     jurisprudence or daily activities. It is apparent to me that 
     the allegations regarding Judge Shedd's alleged biases have 
     been propagated by individuals without the benefit of any 
     real, meaningful interaction with Judge Shedd, his friends or 
     family members. I trust the accusations of bias levied 
     against Judge Shedd will be given the short shrift they are 
     due, and trust further that this honorable committee will act 
     favorably upon the pending nomination of Judge Shedd for the 
     United States Court of Appeals for the Fourth Circuit. Thank 
     you for your attention regarding this matter. Respectfully, 
     Thomas W. Jones, Jr.

  That was written on June 25 of this year to Senator Leahy.
  I will read another letter into the Record as well. This is a letter 
from Phyllis Berry Myers, President and CFO of the Center for New Black 
Leadership. I believe we received it today. It reads as follows:

       Dear Senator Hatch: The Centre for New York Leadership 
     (CNBL) believes the Senate's judicial nomination system is 
     broken and needs repairing.
       We have watched with great trepidation as the Senate's role 
     of ``advise and consent'' for Presidential nominations, 
     especially judicial nominations, has become increasingly, 
     ``search and destroy,'' ``slander and defame.'' It is a 
     wonder that reasonable, decent people agree to go through the 
     confirmation process at all.
       The confirmation process has become particularly brutal if 
     the nominee is labeled ``conservative.'' Traditional civil 
     rights groups mass to castigate and intimidate, as they do 
     now, attempting to thwart the confirmation of Judge Dennis W. 
     Shedd to the U.S. Fourth Circuit Court of Appeals.
       Once again, we are witnessing the new depth to which public 
     discourse and debate has sunk when fabrications, statements 
     taken out of context, misinformation and disinformation can 
     pass as serious political deliberation and debate. The 
     vitally needed discussion about continued civil rights 
     progress in a 21st Century world gets lost in the cacophony. 
     Our nation and true civil rights advocates are poorer because 
     of this.
       The Senate can restore to itself, at least a modicum, a 
     sense of fair play, honor, and trust in its own policies and 
     procedures, a commitment to guarding the civil rights of all, 
     as well as advancing the rule of law by swiftly confirming 
     Judge Shedd.
           Sincerely,
                                              Phyllis Berry Myers,
                                                  President & CEO.

  Of course, the liberal groups starkly ignore Judge Shedd's ruling in 
the Vanderhoff case. In that case, Judge Shedd dismissed the claim of a 
fired employee who repeatedly displayed the Confederate flag on his 
toolbox in violation of company policy. Judge Shedd rejected the 
plaintiff's contention that he was dismissed because of his national 
origin as a ``Confederate Southern American.''
  Perhaps my colleagues have sympathy for that plaintiff, too. After 
all, the plaintiff was represented by a trial lawyer in this employment 
case--or as they would like us to see it, a civil rights case--even 
though it was brought on behalf of a true racist.
  I looked at a letter that the NAACP sent to the Judiciary Committee, 
a letter all the other copycat groups have repeated.
  I ask unanimous consent that the letter be printed in the Record so 
everybody can see how fake the Washington NAACP has become when they 
carry the plaintiffs' trial lawyers' water.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                      National Association for the


                                Advancement of Colored People,

                                Baltimore, MD, September 17, 2002.
     Re Fourth Circuit nomination of Judge Shedd.

     U.S. Senate,
     Washington, DC.
       Dear Senator: On behalf of the NAACP, the nation's oldest, 
     largest and most widely-recognized grass roots civil rights 
     organization, I am writing to let you know of the 
     Association's strong opposition to the nomination of District 
     Court Judge Dennis W. Shedd to the Fourth Circuit Court of 
     Appeals. Delegates from every state in the nation, including 
     the five states comprising the Fourth Circuit, unanimously 
     passed a resolution from the South Carolina State Conference 
     in opposition to the nomination at the NAACP's annual 
     convention in Houston early July.
       Members of the NAACP believe that the federal judiciary, as 
     the final arbiter of the U.S. Constitution, is the branch of 
     government primarily charged with protecting the rights and 
     liberties of all Americans. In many instances in our nation's 
     history, the courts have been the only institution willing to 
     enforce the rights of minority Americans. We cannot afford to 
     permit the federal judiciary to retreat from its 
     constitutional obligation and resort to the type of judicial 
     activism that threatens civil rights and civil liberties.
       No other federal circuit reflects this extreme right-wing 
     activism more than the Fourth Circuit Court of Appeal, which 
     is home to more African Americans than any other circuit. The 
     Fourth Circuit Court of Appeals' hostility to civil rights, 
     affirmative action, women's rights, voting rights and fair 
     employment is unrivalled. Its decisions are so far out the 
     mainstream that the Supreme Court has reversed the Fourth 
     Circuit on basic constitutional protections such the Miranda 
     warnings.
       Judge Shedd's addition to the Fourth Circuit would further 
     relegate that court to the periphery of judicial mainstream. 
     His judicial record and testimony before the Judiciary 
     Committee reflect a disposition to rule against the plaintiff 
     in employment and discrimination cases. Moreover, his 
     restrictive view of federal legislation authority, as 
     indicated in Condon v. Reno, 972 F.Supp. 977 (D.S.C. 1997), 
     which struck down the Driver's Privacy Protection Act of 
     1994, 18 U.S.C. Sec. Sec. 2721-25 and was later overturned in 
     a 9-to-0 decision by the Supreme Court, confirms our 
     perspective that Judge Shedd's judicial philosophy and 
     temperament would further push the Fourth Circuit to the 
     right-wing.
       Accordingly, as unanimously passed by the over 1,200 
     delegates to the 2002 NAACP National Convention, I ask that 
     you oppose the nomination and that you use your influence to 
     encourage the Senate Judiciary Committee to not vote him out 
     of Committee. However, if the nomination makes it to the 
     Senate floor, we ask you to vote against it.
       I appreciate your attention and interest in this important 
     matter. Please do not hesitate to contact me or Hilary 
     Shelton, Director of the NAACP Washington Bureau at (202) 
     638-2269, if we can be of assistance.
           Sincerely,
                                                     Kwesi, Mfume,
                                                  President & CEO.

  Mr. HATCH. They describe their so-called civil rights complaint, and 
it boiled down to something not having anything to do with Judge 
Shedd's civil rights record. They project on to Judge Shedd their 
complaints about the Fourth Circuit as it currently stands. Though 
personally I believe that these charges are unfounded.
  Well, Judge Shedd is not on the Fourth Circuit yet.
  The NAACP's well-funded complaint is about appellate decisions Judge 
Shedd has had nothing to do with. That is remarkably irresponsible for 
an organization once so distinguished. Thurgood Marshall would be very 
displeased with this sort of sloppy advocacy.
  Then the NAACP got to the heart of the matter. In the letter signed 
by Kwesi Mfume they show who is paying the bills. On behalf of 
plaintiff's trial lawyers, the NAACP complains about Judge Shedd's 
employment rulings--not his civil rights or voting rights rulings which 
are unimpeachable, but employment rulings. As I have said before, we 
know such a complaint has no basis in the reality of how employment 
cases are litigated and resolved.
  Of course they, too, fail to note that Judge Shedd has only been 
reversed twice in employment cases during his 12-year career on the 
Federal bench.
  The truth is the so-called civil rights attack on Judge Shedd is 
nothing but a campaign paid by and for the plaintiff's trial lawyers. 
They stoop so low to get their profits that they have put the NAACP, 
that once great organization, and other civil rights groups up to do 
their dirty work. That bothers me a lot.
  Just so I set the record straight, I know a lot of really good trial 
lawyers in this country. I know a lot of them who fight for justice, 
for rights for the oppressed and for those who are down trodden. I am 
not referring to them. I am talking about those who are funding these 
vicious left-wing attacks on President Bush's judicial nominees, and 
there are plenty of them. They are loaded with dough, and they seem to 
want to manipulate the Federal bench like they have some of the State 
court benches. It is wrong.
  Dennis Shedd is well qualified to serve on the Fourth Circuit Court 
of

[[Page S11269]]

Appeals. I think so, and the American Bar Association, hardly a bastion 
of conservative politics, has said so.
  In supporting his confirmation, I for one express my gratitude on 
behalf of the American people for an entire life spent in public 
service.
  One other letter I will read is a letter from the Congress of Racial 
Equality. It is written to Senator Daschle as of today's date. It reads 
as follows:

       Dear Senator Daschle: This is an open letter in the 
     interest of justice. The Congress of Racial Equality, CORE, 
     enthusiastically endorses Judge Dennis Shedd for the Fourth 
     Circuit Court of Appeals. Despite a Democratic filibuster 
     against Judge Shedd--

  And, of course, I am pleased there is not going to be a filibuster. I 
think that is very unwise, and I hope we do not stoop to that level on 
either side of the aisle. I thought we had overcome that propensity in 
the last number of years. There have been so few in the history of this 
body, I hope we do not stoop to that again.
  The letter reads as follows:

       Dear Senator Daschle: This is an open letter in the 
     interest of justice. The Congress of Racial Equality (CORE) 
     enthusiastically endorses Judge Dennis Shedd for the Fourth 
     Circuit Court of Appeals. Despite a Democratic filibuster 
     against Judge Shedd, it is the strong opinion of CORE that 
     Judge Shedd is a more than worthy candidate for the Fourth 
     Circuit Court of Appeals.
       Judge Shedd's character has been under attack without merit 
     and without fair scrutiny of his service to the American 
     legal system.
       Prior to serving the bench, Judge Shedd served faithfully 
     from 1988-1990 as Chairman of the South Carolina Advisory 
     Committee to the U.S. Commission on Civil Rights. A fair and 
     honest review of Judge Shedd's unpublished opinions would 
     show that he has sided numerous times with plaintiffs in 
     cases of race, gender and disability rights without falter or 
     hesitation. In each case, his decisions have allowed 
     employment discrimination lawsuits to go forward in the 
     interest of fairness and truth.
       Judge Shedd has shown his commitment to employment rights 
     for minorities and women, particularly within the court. His 
     efforts have championed the efforts to recruit and elect the 
     first African-American U.S. Magistrate Judge in the South 
     Carolina District, Margaret Seymour. He was actively sought 
     minority and female candidates for other Magistrate Judge 
     positions, and has directed the Selected Commission in South 
     Carolina to bear in mind diversity in the selection of 
     candidates for these positions.
       Judge Dennis Shedd's accomplishments and service have 
     transcended bi-partisan support even from his home state 
     Senators, notably, Senators Strom Thurmond and Senator Ernest 
     Hollings who wholly support his nomination.
       In the interest of fairness, balance we ask you to look 
     past the unfounded partisan attacks of propaganda against 
     Judge Shedd and fairly examine his work for yourselves. We 
     strongly believe Judge Shedd's accomplishments and 
     contributions to justice and civil rights speaks for itself.
       We hope that you would join CORE in our support of Judge 
     Dennis Shedd and urge Senate Democrats to end the unfair 
     filibuster against him. Let Judge Shedd have his day on the 
     Senate floor
           Sincerely,
                                                      Niger Innis,
                                               National Spokesman.

  Again, I am pleased there will be no filibuster against this worthy 
Federal district court judge who has served with distinction for the 
last 12 years. I caution this body, I hope we do not resort to 
filibusters on judicial nominees, as has been recommended by some 
notable left-wing law professors. Filibustering judicial nominations 
should not be done lightly, if at all. When we elect a President, we 
elect a President who will have the power to choose his or her judicial 
nominees. Senator's have a right to raise any issues against those 
nominees, so long as they are honestly raised.
  In Judge Dennis Shedd's case, the outside groups have raised a lot of 
issues that are not honestly raised. I have not heard any criticisms 
against him that are valid in my judgment, and I know Judge Shedd 
personally and I have reviewed his complete record.
  Just this morning, I received a letter from Joseph Anderson, chief 
judge for the District of South Carolina. It is noteworthy that Chief 
Judge Anderson was a Democratic member of the South Carolina 
Legislature before his appointment to the Federal bench. He served as a 
district court judge for 16 years and chief judge for the last 2 years. 
He and Judge Shedd have been suite-mates in the Federal courthouse in 
Columbia. For all of these reasons, he writes, he believes he is 
qualified to comment on Judge Shedd's abilities, qualifications, and 
reputation. Judge Anderson writes:

       I can say without hesitation that Judge Shedd has a 
     reputation for fairness, both in his community and on our 
     court. As Chief Judge, I have received no complaints about 
     his courtroom demeanor, his decisions, or his procedures. It 
     is my considered opinion that all people who appear in his 
     court receive a fair hearing, regardless of the type of cases 
     involved, or the status of the parties in the case (plaintiff 
     or defendant.)

  The letter continues:

       Judge Shedd is scrupulous in his dealings on the court. If 
     there is any remote suggestion of the appearance of 
     impropriety, he will not hesitate, and has not hesitated, to 
     recuse himself and he is very consistent about this.

  Chief Judge Anderson then addresses the quality of Judge Shedd's 
decisions. He says:

       I regularly review the advance sheets of the United States 
     Court of Appeal for the Fourth Circuit, and it would appear 
     to me that Judge Shedd has an extremely good affirmance rate 
     in that court.

  He continues:

       In regard to the issue of granting summary judgment or 
     otherwise dismissing cases short of trial, it appears to me 
     that Judge Shedd's record is no different from any other 
     judge in this district. That is to say, some of his cases are 
     ended by a ruling on summary judgment. Those that are not are 
     then set for trial, and a great number of those eventually 
     settle--which means that the plaintiff and defendant agree on 
     the outcome. In regard to summary judgment decisions, 
     settlements, and actual trials, Judge Shedd's statistics are 
     not significantly different from any other judge in this 
     district.

  It is ridiculous to say that, because a judge has not granted summary 
judgments for plaintiffs, that he was not fair. In employment cases, 
often the entire contest is whether the plaintiff survives summary 
judgment, after which the case settles. And that is true in Judge 
Shedd's cases. Once a summary judgment is refused, that means the case 
is going to be tried by a judge or jury, and then the parties settled.
  I ask unanimous consent that the letter from Chief Judge Anderson be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                              U.S. District Court,


                                   District of South Carolina,

                                Columbia, S.C., November 18, 2002.
     In re Dennis W. Shedd, Nominee to Fourth Circuit Court of 
         Appeals.

     Senator Orrin Hatch,
     Ranking Republican Member, Judiciary Committee, U.S. Senate, 
         Dirksen Senate Office Building, Washington, DC
       Dear Senator Hatch: This in response to your request that I 
     provide information regarding Dennis W. Shedd, a judge on our 
     court, who has been nominated for a position on the United 
     States Court of Appeals for the Fourth Circuit. I have served 
     as a United States District Judge for 16 years, the last two 
     as Chief Judge for our district. I knew Judge Shedd prior to 
     his appointment as U.S. District Judge, and, subsequent to 
     his appointment, he and I have served as suite mates in the 
     courthouse here in Columbia. I therefore, feel that I am 
     qualified to comment on his abilities, qualifications, and 
     reputation.
       In response to your specific inquiries, I can say without 
     hesitation that Judge Shedd has a reputation for fairness, 
     both in his community and on our court. As Chief Judge, I 
     have received no complaints about his courtroom demeanor, his 
     decisions, or his procedures. It is my considered opinion 
     that all people who appear in his court receive a fair 
     hearing, regardless of the type of cases involved, or the 
     status of the parties in the case (plaintiff or defendant).
       Judge Shedd is scrupulous in his dealings on the court. If 
     there is any remote suggestion of the appearance of 
     impropriety, he will not hesitate, and has not hesitated, to 
     recuse himself and he is very consistent about this.
       I regularly review the advance sheets of the United States 
     Court of Appeal for the Fourth Circuit, and it would appear 
     to me that Judge Shedd has an extremely good affirmance rate 
     in that court.
       In regard to the issue of granting summary judgment or 
     otherwise dismissing case short of trail, it appears to me 
     that Judge Shedd's record is no different from any other 
     judge in this district. That is to say, some of his cases are 
     ended by a ruling on summary judgment. Those that are not are 
     then set for trial and a great number of those eventually 
     settle before the trial can be conducted. In regard to 
     summary judgment decisions, settlements, and actual trials, 
     Judge Shedd's statistics are not significantly different from 
     any other judge in this district.
       I hope this letter is responsive to your inquiry and if you 
     need any additional information, please do not hesitate to 
     let me know.
       With kind personal regards.
                                          Joseph F. Anderson, Jr.,
                               Chief United States District Judge.

  Mr. HATCH. I believe this letter speaks volumes about Judge Shedd's 
fairness and dispels the completely unfounded criticism that Judge 
Shedd's

[[Page S11270]]

reversal rate or dismissal rate is somehow out of sync or cause for 
concern.
  I have been on the Senate Judiciary Committee for 26 years. Most of 
my colleagues will say I have acted with fairness, honesty, and candor 
during those 26 years. Most would say I have done so as chairman of the 
committee when I have been chairman. I know Dennis Shedd. I know him 
very well. I worked closely with him and Senator Thurmond, as did many 
on the committee. I saw in Dennis Shedd a very scrupulously honest and 
decent man. I never saw one iota of evidence that he was anything but 
an honest and decent, honorable human being, with the respect for all 
people, regardless of race, religion, or origin--or any other reason. I 
can say this man served the committee well. He was chief of staff for 
the committee when Senator Thurmond was chairman. He got along well 
with everyone. He did his job, and did it well.
  He has had experience in private practice. He has had experience in 
this legislative body that I don't think many staffers could match. He 
has had 12 years of experience on the Federal district court bench in 
South Carolina where the chief judge himself says he has distinguished 
himself.
  I have bitterly resented some of the outside attacks which have come 
to be the norm in the case of President Bush's nominees. If a person is 
considered moderate to conservative or conservative, then automatically 
these groups start to attack some of these people. It is not right. I 
have had respect for a number of these groups in the past, but I have 
lost respect for them in the last couple of years with some of the 
arguments they have made and some of the cases they have tried to make 
and some of the distortions they have foisted upon the Senate Judiciary 
Committee. It is time to quit doing that. I would like to see the 
outside groups argue their cases well, argue their ideology well, do 
what they are organized to do, but do it honestly, do it fairly; do not 
destroy a person's reputation, as I think many have attempted to do 
here, and especially a person against whom you can find no real fault.
  I know Dennis Shedd. He is an honorable, honest, competent, 
intelligent, former chief of staff of this committee but now Federal 
district judge in South Carolina. He deserves some respect in this 
body, and he deserves the vote of this body. I hope my colleagues will 
look past some of these unfortunate criticisms that are, in my opinion, 
dishonest, that we have shown to be distortions, and vote for Dennis 
Shedd tomorrow so that he can bring a greater element of ability to the 
circuit court of appeals.
  Mr. President, contrary to some of the arguments made here today, it 
is clear to me that this debate is not so much about Judge Shedd, as it 
is about the purposeful delaying and denying of President Bush's 
judicial nominations.
  The delay and speechmaking about Judge Shedd fits right into the 
pattern we have been seeing for almost two years.
  Under Democrat control, the Senate has undertaken a systematic effort 
to treat President Bush and his judicial nominees unfairly. Some have 
attempted to justify this unfair treatment as tit-for-tat, or business 
as usual, but the American people should not accept such a smokescreen. 
What the Senate is doing is unprecedented.
  Historically, a president can count on seeing all of his first 11 
Circuit Court nominees confirmed. As you can see on this chart, 
Presidents Reagan, Bush and Clinton all enjoyed a 100 percent 
confirmation rate on their first 11 Circuit Court nominees. In stark 
contrast, 7 of President Bush's first 11 nominations are still pending 
at the close of President Bush's first Congress.
  History also shows that Presidents can expect almost all of their 
first 100 nominees to be confirmed swiftly. Presidents Reagan, Bush and 
Clinton got 97, 95 and 97, respectively, of their first 100 judicial 
nominations confirmed. But the Senate has confirmed only 83 of 
President Bush's first 100 nominees.
  Some try to blame Republicans for the current vacancy crisis. That is 
bunk. In fact, the number of judicial vacancies decreased by three 
during the 6 years of Republican leadership. There were 70 vacancies 
when I became chairman of the Judiciary Committee in January 1995, and 
there were 67 at the close of the 106th Congress in December 2000.
  Some try to justify wholesale delays as payback for the past. That is 
also untrue. Look at the facts: During President Clinton's 8 years in 
office, the Senate confirmed 377 judges--essentially the same (5 fewer) 
as for Reagan (382). This is an unassailable record of non-partisan 
fairness, especially when you consider that President Reagan had 6 
years of a Senate controlled by his own party, while President Clinton 
had only 2.
  Finally, some might suggest that the Republicans left an undue number 
of nominees pending in Committee without hearings at the end of the 
Clinton administration. Well, we left 41, which is 13 less that the 
Democrats left without hearings in 1992 at the end of the Bush 
Administration.
  So you see, Mr. President, what is happening to Judge Shedd fits into 
a pattern of unfairness that is not justified by any prior Republican 
actions.
  President Bush deserves to be treated as well as the last three 
Presidents.


                nominations record of the 107th Congress

  My Democrat colleagues are apparently proud that in this Session, so 
far, the Senate has confirmed 99 judges. There is much eagerness in 
their voices in asserting that this number compares favorably to the 
last three sessions of Congress during which Republicans were in 
control of the Senate.
  Although it is flattering that the Republican record under my 
leadership is being used as the benchmark for fairness, I am afraid 
that this does not make for a correct comparison because Republicans 
were never in control during President Clinton's first 2 years in 
office.
  Let me repeat that, we were never in control during President 
Clinton's first 2 years in office. The proper comparison is not to the 
Republican record of the last 6 years of President Clinton, but to his 
first 2 years.
  Despite the numbers that my colleague throws out in their comparison 
of apples to oranges.
  Now, Mr. President I brought a visual. Here you see apples and 
oranges. It is fair to say that they are difficult to compare and that 
a comparison only leads the listener to conclude that they are both 
fruit. But they are not at all the same kind.
  The fact remains that the Democrat achievement in this Session fails 
noticeably when properly compared, apples to apples.
  During President Clinton's first Congress, when Senator Biden was the 
Chairman of the Judiciary Committee, the Senate confirmed 127 judicial 
nominees. And Senator Biden achieved this record despite not receiving 
any nominees for the first 6 months--in fact, Senator Biden's first 
hearing was held on July 20th of that year, more than a week later than 
the first hearing of this Session, which occurred on July 11, 2001.
  Clearly, getting started in July of Year One is no barrier to the 
confirmation of 127 judges by the end of Year Two. But we have 
confirmed only 99 nominees in this Session.
  Senator Biden's track record during the first President Bush's first 
2 years also demonstrates how a Democrat-led Senate treated a 
Republican president. Then-Chairman Biden presided over the 
confirmation of all but 5 of the first President Bush's 75 nominees in 
that first two-year session. Chairman Thurmond's record is similar. The 
contrast to the present could hardly be starker.
  We are about to close President Bush's first 2 years in office, 
having failed the standards set by Chairman Biden and Chairman 
Thurmond. That is nothing over which to be proud.
  Mr. HOLLINGS. Mr. President, in South Carolina, Senator Thurmond and 
I have a long tradition of working cooperatively to nominate judges. 
Senator Thurmond has made good choices in the past, and he has done so 
again, with Judge Dennis Shedd, for elevation to the Court of Appeals 
for the Fourth Circuit.
  Judge Shedd is familiar to many Members, having staffed the Judiciary 
Committee for several years, and of course serving as chief counsel and 
administrative assistant to Senator Thurmond himself.
  He is a very smart and capable man. For more than a decade, he has 
been a

[[Page S11271]]

judge on the United States District Court for South Carolina, based in 
Columbia. He has a reputation as a hard worker on the bench, as a 
straight-shooter, and one who is up-to-date on the laws. By special 
designation, he has sat on the Fourth Court on several occasions.
  No judge now sitting on the Fourth Circuit has as much Federal trial 
experience. On the bench, he has handled 5,000 cases, and he has been 
reversed less than one percent in that entire time, an outstanding 
record of sound judgment.
  I can say he has the support of a wide array of lawyers in South 
Carolina, and has received a well qualified rating by the American Bar 
Association.
  I have a letter from Joseph Anderson, chief United States District 
Judge, who writes:

        ``I can say without hesitation that Judge Shedd has a 
     reputation for fairness, both in his community and on our 
     court. As Chief Judge, I have received no complaints about 
     his courtroom demeanor, his decisions, or his procedures. It 
     is my considered opinion that all people who appear in his 
     court receive a fair hearing, regardless of the type of cases 
     involved, or the status of the parties in the case.

  And here is a letter from nine faculty members of the University of 
South Carolina School of Law, from which Judge Shedd graduated. After 
analyzing several of his cases they conclude: ``Judge Shedd's record on 
the Federal bench demonstrates that he is fair and impartial in all 
matters that come before him, including to plaintiffs in employment 
discrimination and civil rights cases. . . . In our view he will make 
an excellent addition to the Fourth Circuit.''
  Let me acknowledge that the NAACP, and some others, have concerns 
with him. But I have looked into those situations, and I find them 
wanting with respect to specific inappropriate actions by Judge Shedd.
  We in the law know that you never have a character witness come up 
and tell what he knows of his own association, but rather you bring 
witnesses who give testimony to his reputation in the particular 
community.
  In that regard, having checked it out, Judge Shedd is my kind of 
judge. He is hard, he is tough, but he is hard and he is tough on both 
sides.
  We who have practiced law before the courts, and know the score, and 
don't play games appreciate a judge who is not going to allow any games 
to be played on you.
  I have said often that as much as we need a balanced budget, we need 
some balanced Senators, and some balanced judges.
  I hope we can garner bipartisan support, and to see that this Judge 
is confirmed.
  I ask unanimous consent to print the letters in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              U.S. District Court,


                                   District of South Carolina,

                                  Columbia, SC, November 18, 2002.
     In re Dennis W. Shedd, Nominee To Fourth Circuit Court of 
       Appeals.
     Senator Orrin Hatch,
     Ranking Republican Member, Judiciary Committee, U.S. Senate, 
         Washington, DC.
       Dear Senator Hatch: This in response to your request that I 
     provide information regarding Dennis W. Shedd, a judge on our 
     court, who has been nominated for a position on the United 
     States Court of Appeals for the Fourth Circuit. I have served 
     as a United States District Judge for 16 years, the last two 
     as Chief Judge for our district. I knew Judge Shedd prior to 
     his appointment as U.S. District Judge, and, subsequent to 
     his appointment, he and I have served as suite mates in the 
     courthouse here in Columbia. I, therefore, feel that I am 
     qualified to comment on his abilities, qualifications, and 
     reputation.
       In response to your specific inquires [I can say without 
     hesitation that Judge Shedd has a reputation for fairness, 
     both in his community and on our court. As Chief Judge, I 
     have received no complaints about his courtroom demeanor, his 
     decisions, or his procedures. It is my considered opinion 
     that all people who appear in his court receive a fair 
     hearing, regardless of the type of cases involved, or the 
     status of the parties in the case (plaintiff or defendant).]
       Judge Shedd is scrupulous in his dealings on the court. If 
     there is any remote suggestion of the appearance of 
     impropriety, he will not hesitate, and has not hesitated, to 
     recuse himself and he is very consistent about this.
       I regularly review the advance sheets of the United States 
     Court of Appeal for the Fourth Circuit, and it would appear 
     to me that Judge Shedd has an extremely good affirmance rate 
     in that court.
       In regard to the issue of granting summary judgment or 
     otherwise dismissing cases short of trial it appears to me 
     that Judge Shedd's record is not different from any other 
     judge in this district. That is to say, some of his cases are 
     ended by a ruling on summary judgment. Those that are not are 
     then set for trial and a great number of those eventually 
     settle before the trial can be conducted. In regard to 
     summary judgment decisions, settlements, and actual trials, 
     Judge Shedd's statistics are not significantly different from 
     any other judge in this district.
       I hope this letter is responsive to your inquiry and if you 
     need any additional information, please do not hesitate to 
     let me know.
           With kind personal regards,
                                          Joseph F. Anderson, Jr.,
     Chief United States District Judge.
                                  ____

                                                     June 26,2002.
     Hon. John R. Edwards,
     U.S. Senate,
     Washington, DC.
       Dear Senator Edwards: We write to you as individual members 
     of the faculty at the University of South Carolina School of 
     Law. We are concerned that professors from law schools in 
     your state recently may have provided you with inaccurate 
     information regarding United States District Court Judge 
     Dennis Shedd, whose nomination to the Fourth Circuit Court of 
     Appeals is scheduled for a hearing in the Senate Judiciary 
     Committee this week. As members of the academic legal 
     community in South Carolina, we wish to set the record 
     straight on Judge Shedd's record on the bench, and to urge 
     your approval of this well-qualified nominee.
       Contrary to claims made by his opponents, Judge Shedd's 
     record in cases involving state sovereignty and the scope of 
     congressional authority reflects that he has taken a fair and 
     balanced approach to these issues and is well within the 
     accepted mainstream among federal judges. On the difficult 
     issue of whether Congress had authority under the Commerce 
     Clause to enact the Driver's Privacy Protection Act (DPPA), 
     Judge Shedd concluded, after careful analysis of existing 
     case law, the DPPA violated the Tenth Amendment in that it 
     commanded states to implement federal policy in violation of 
     Supreme Court precedent, New York v. United States, 515 U.S. 
     144 (1992), and Printz v. United States, 521 U.S. 898 (1997). 
     See Condon v. Reno, 972 F.Supp. 977 (D.S.C. 1997).
       While the Supreme Court ultimately ruled that DPPA 
     represented a valid exercise of Congress' Commerce Clause 
     power, 7 of the other 15 lower court judges to consider the 
     issue prior to the Court's decision agreed with Judge Shedd. 
     Among those were Judge Barbara Crabb, the Chief Judge of the 
     Western District of Wisconsin and an appointee of President 
     Jimmy Carter, and John Godbold of the 11th Circuit, a Johnson 
     appointee. In addition, several governors, including Governor 
     Jim Hunt of North Carolina, authorized their attorneys 
     general to file amicus briefs in Condon urging the Supreme 
     Court to uphold Judge Shedd's ruling and to declare the law 
     unconstitutional. To us, the disagreement among lawyers, 
     judges and scholars regarding whether DPPA was constitutional 
     in the wake of the Supreme Court's decisions in Printz and 
     other opinions reflects the difficult question presented 
     in this case. Judge Shedd's opinion represents a reasoned 
     (albeit later overruled) approach to that question.
       On the issue of state immunity under the Eleventh 
     Amendment, opponents have cited Judge Shedd's opinion in the 
     case of Crosby v. South Carolina Dep't of Heath, C.A. No. 
     3:97-3588-19BD, as an example of his ``highly protective 
     views'' of state sovereignty. In Crosby, Judge Shedd in an 
     unpublished opinion found that the 11th Amendment protected 
     states from lawsuits in federal court under the Family and 
     Medical Leave Act (FMLA). Contrary to the claims of his 
     critics, Judge Shedd's opinion in Crosby is well within the 
     mainstream of recent Eleventh Amendment jurisprudence. In 
     fact, eight of the nine Circuit Courts of Appeals to decide 
     the issue of whether the FMLA applied to state agencies have 
     agreed with Judge Shedd's ruling in Crosby. See Laro v. New 
     Hampshire, 259 F.3d 1 (1st Cir 2001); Hale v. Mann, 219 F.3d 
     61 (2nd Cir 2000); Chittister v. Dept. Community and Econ. 
     Dev., 226 F.3d 223 (3rd Cir 2000); Lizz v. WMATA, 255 F.3d 
     128 (4th Cir 2001); Kazmier v. Widmann, 225 F.3d 519 (5th Cir 
     2000); Sims v. Cincinnati, 219 F.3d 559 (6th Cir 2000); 
     Townsell v. Missouri, 233 F.3d 1094 (8th Cir 2000); Garrett 
     v. UAB Board of Trustees, 193 F.3d 1214 (11th Cir 1999). In 
     fact, the Fourth Circuit opinion on this issue was joined by 
     recent Bush appointee Roger Gregory, who was unanimously 
     approved by the Judiciary Committee and unanimously confirmed 
     by the full Senate. See Lizzi v. WMATA, 255 F.3d 128 (4th Cir 
     2001).
       Those less familiar with Judge Shedd's record also may not 
     be aware of his opinion in another case involving the scope 
     of Congress' authority under the Commerce Clause. In United 
     States v. Floyd Brown,  Crim. No. 94-168-19, Judge Shedd in 
     an unpublished opinion rejected a criminal defendant's 
     constitutional challenge to the Gun Free School Zones Act, 
     finding that the prosecution could prove facts at trial that 
     would support some basis for federal jurisdiction under the 
     statute. Consequently, Judge Shedd found that the Act 
     represented a valid exercise of congressional authority under 
     the Commerce Clause. The Supreme Court later disagreed with 
     Judge Shedd and struck down the Act

[[Page S11272]]

     in a controversial 5-4 decision. See United States v. Lopez, 
     514 U.S. 549 (1995). Nonetheless, Judge Shedd's opinion in 
     Brown demonstrates that he is far from the ``sympathetic 
     participant in the campaign to disempower Congress'' that his 
     detractors have alleged.
       Even more disturbing than their criticism of Judge Shedd's 
     record on federalism issues is the North Carolina law 
     professors' distortion of his record in civil rights and 
     employment discrimination cases. While we will not address 
     each and every mischaracterization contained in their recent 
     letter to you, suffice it to say that those professors 
     clearly have not provided you with the full picture of Judge 
     Shedd's record.
       For example, the assertion that Judge Shedd has never 
     granted relief in an employment discrimination case and that 
     he inappropriately uses Rule 56 summary judgment in these 
     cases in misleading and inaccurate. As you must know from 
     your career as a litigator, when a case proceeds beyond the 
     summary judgment stage, the likelihood of settlement in that 
     case increases exponentially. Moreover, an extremely high 
     percentage of employment discrimination cases around the 
     country are disposed of by summary judgment either because 
     the courts consider the claims not to be meritorious or 
     because the plaintiff failed to meet the minimal requirements 
     set by statute and judicial precedent. We understand that 
     Judge Shedd has repeatedly denied summary judgment to 
     defendants in employment discrimination and civil rights 
     cases. In addition, we are aware of only two instances in 
     which the Fourth Circuit has overturned Judge Shedd in 
     employment discrimination cases during his almost twelve-year 
     career on the bench.
       For your information, we wanted you to be aware of a few of 
     the cases (among many) where Judge Shedd allowed plaintiffs 
     to proceed past the summary judgment stage in civil rights 
     and employment cases:

       In Miles v. Blue Cross & Blue Shield, C.A. No. 3:94-2108-
     19BD, Judge Shedd denied defendant Blue Cross & Blue Shield's 
     motion for summary judgment in a case brought under Title VII 
     of the Civil Rights Act, where an African-American employee 
     alleged that she was fired because of her race. The case 
     included allegations that the plaintiff's supervisor used 
     racially disparaging remarks on several occasions. The 
     supervisor also allegedly stated that he did not want an 
     African-American to hold the position held by the plaintiff.
       In Davis v. South Carolina Department of Health, C.A. No. 
     3:96-1698-19BD, Judge Shedd refused to dismiss a Title VII 
     lawsuit by an African-American employee who claimed that she 
     was denied a promotion because of her race. The case involved 
     allegations that the company promoted an unqualified white 
     employee, and that a supervisor who participated in the 
     decision not to promote the plaintiff had made racially 
     disparaging remarks to her.
       In Ruff v. Whiting Metals, C.A. No. 3:98-2627-19BD, Judge 
     Shedd refused to dismiss a Title VII race discrimination case 
     brought by an African-American welder after he was laid off. 
     The case involved allegations that supervisors repeatedly 
     made racial statements in the workplace, and that one 
     supervisor claimed that he was going to use the pending 
     layoffs to ``get rid of some'' African-American employees.
       In Black v. Twin Lakes Mobile Homes, C.A. No. 0:97-3971-19, 
     Judge Shedd denied summary judgment for the defendant, an 
     owner of a mobile home park who sought to evict an HIV-
     positive tenant because of his medical condition. Shedd's 
     ruling allowed the plaintiff's lawsuit alleging 
     discrimination under the Fair Housing Act to go forward.
       In addition to the above cases, Judge Shedd also has 
     presided over three cases where the NAACP has alleged 
     violations of the Voting Rights Act in which the NAACP 
     prevailed. NAACP v. Lee County, C.A. No. 3:94-1575-17; NAACP 
     v. Holly Hill, C.A. No. 5:91-3034-19; NAACP v. Town of 
     Elloree, C.A. No. 5:91-3106-06. Far from displaying a 
     hostility to civil rights and employment discrimination 
     cases, Judge Shedd's record demonstrates that he is a judge 
     who keeps an open mind, applies the law to the facts, and 
     treats all parties fairly.
       In sum, as members of the academic legal community in South 
     Carolina [we can unequivocally state that Judge Shedd's 
     record on the federal bench demonstrates that he is fair and 
     impartial in all matters that come before him, including to 
     plaintiffs in employment discrimination and civil rights 
     cases. In addition, his career on the bench and as a staff 
     member of the United States Senate shows that he has a clear 
     understanding of and appropriate deference to Congress' 
     legislative powers. In our view, he will make an excellent 
     addition to the Fourth Circuit, and we urge you to support 
     his nomination.
           Sincerely,
         F. Ladson Boyle; David G. Owen; S. Allen Medlin; Howard 
           B. Stravitz; William J. Quirk; Randall Bridwell; Ralph 
           C. McCullough II; Dennis R. Nolan; Robert M. Wilcox.
  Mr. COCHRAN. Mr. President, I support the confirmation of Judge 
Dennis W. Shedd of South Carolina as U.S. Circuit Judge for the Fourth 
Circuit.
  Judge Shedd has served more than 10 years as a United States District 
Judge for the District of South Carolina where he has earned a 
reputation for sound judgement and fairness. Prior to his appointment 
to the Federal bench, Judge Shedd spent nearly 20 years in the practice 
of law and public service, including ten years as a staff member of 
U.S. Senator Strom Thurmond. During his tenure in the Senate, Judge 
Shedd served as Counsel to the President Pro Tempore as well as Chief 
Counsel and Staff Director of the Senate Judiciary Committee.
  While serving on the Federal bench, Judge Shedd has been a member of 
the Judicial Conference Committee on the Judicial Branch and its 
subcommittee on Judicial Independence. He has also participated in 
community activities where he has helped organize and promote drug 
education programs in the Columbia, SC public schools.
  Judge Shedd has handled more than 4,000 civil cases and over 900 
criminal matters. No judge currently sitting on the Fourth Circuit has 
as much Federal trial experience. In the thousands of cases Judge Shedd 
has handled, he has been reversed fewer than 40 times--less than one 
percent. In addition, a majority of the ABA's Standing Committee on the 
Judiciary rated Judge Shedd ``Well Qualified.''
  I believe Judge Shedd has demonstrated the character, wisdom, and 
judicial temperament needed to be an outstanding judge on the Federal 
appellant bench. I encourage my colleagues to support his nomination.
  Mr. THURMOND. Mr. President I am greatly pleased that the full Senate 
is considering the nomination of Judge Dennis Shedd to the United 
States Court of Appeals for the Fourth Circuit. Judge Shedd is a man of 
impeccable character who will make an outstanding addition to the 
Federal appellate bench. He possesses the highest sense of integrity, a 
thorough knowledge of the law, and a good judicial temperament. These 
qualifications have earned Judge Shedd widespread respect and 
bipartisan support in my home State of South Carolina. In addition to 
Republican support, Senator Ernest Hollings and State Democratic Party 
chairman Dick Harpootlian have endorsed his nomination.
  I am exceedingly proud of Dennis Shedd. He was a loyal employee of 
mine for 10 years and is very deserving of this high honor. Judge Shedd 
has been successful at every stage of his professional life and has 
dedicated most of his career to public service. Upon graduation from 
the University of South Carolina School of Law, he joined my staff and 
eventually served as administrative assistant. Thereafter, during my 
tenures as chairman and ranking member of the Judiciary Committee, he 
served as the committee's chief counsel and staff director. As a staff 
member, he gained a well-deserved reputation for honesty and hard work.
  Upon returning to South Carolina, Judge Shedd entered the private 
practice of law and also served as an adjunct law professor at the 
University of South Carolina. In 1990, President Bush nominated Dennis 
Shedd to the United States District Court for the District of South 
Carolina, and he has served ably for more than a decade. On numerous 
occasions, Judge Shedd has been given the honor of sitting on the 
Fourth Circuit by designation.
  Judge Shedd's performance on the district court has been marked by 
distinction. He has been assigned more than 5,000 cases during almost 
12 years on the bench. Out of all these cases, he has only been 
reversed 37 times, resulting in a reversal rate of less than 1 percent. 
These numbers indicate both the skilled legal mind and the thorough 
preparation that he will bring to the Fourth Circuit. Judge Shedd also 
possesses a good judicial temperament, treating all litigants in his 
courtroom with dignity and respect.
  Unfortunately, some groups have portrayed Judge Shedd's judicial 
career in a negative light. I would like to take a moment to address 
these allegations and concerns. An examination of Judge Shedd's record 
indicates that he is not only fair and impartial, but personally 
dedicated to upholding the constitutional rights of all people.
  Judge Shedd has been criticized for his handling of Alley v. South 
Carolina, a lawsuit wherein the plaintiffs sought to remove the 
Confederate flag from atop the statehouse dome in Columbia, SC. The 
South Carolina NAACP has asserted that Judge Shedd ``made several 
derogatory comments about those opposing the flag, and

[[Page S11273]]

minimized the deep racial symbolism of the Confederate flag by 
comparing it to the Palmetto tree, which appears in South Carolina's 
state flag.''
  These allegations are misleading and inaccurate. A close look at the 
transcript of the hearing reveals that Judge Shedd made a point of 
saying that his comments were not meant to be disparaging. In fact, he 
said, ``I'm not going to denigrate the constitutional claim abut the 
Confederate flag.'' Furthermore, Judge Shedd never ruled on the merits 
of the case. Rather, he abstained to allow a claim to go forward in 
State court, arguably the forum better equipped to handle the issue.
  Additionally, it is important to note that Judge Shedd's comments 
about the Palmetto tree were made during his examination of the 
lawyer's legal argument in the case. The argument hinged on the 
offensive nature of the Confederate flag, and Judge Shedd pointed out 
that many symbols could be perceived as offensive, such as the Palmetto 
tree on the State flag. Judge Shedd then stated, ``I'm not determining 
now on whether or not the flag should be there at all. I'm just doing 
what--you lawyers have been with me before know, I'm exploring your 
legal theory.'' In this case, Judge Shedd was simply engaging in the 
Socratic method with the lawyers, and his words should not be twisted 
to insinuate any personal feelings about the propriety of flying the 
Confederate flag over the statehouse dome.
  I would like to point out the case of Vanderhoff v. John Deere, the 
one case involving the Confederate flag in which Judge Shedd did rule. 
In that case, an employee was fired because he refused to comply with 
company policy and remove the Confederate flag from his toolbox. The 
employee sued under title VII, a statute designed to prohibit workplace 
discrimination based on race, sex, religion, and national origin. He 
argued that his national origin was a ``Confederate Southern American'' 
and that he had been the subject of discrimination. Judge Shedd 
rejected this argument and dismissed the plaintiff's claim. Thus, on 
the one Confederate flag case where he ruled on the merits, Judge 
Shedd's decision went against a flag proponent.
  In recent weeks, Judge Shedd has been the subject of vicious attacks 
based on his handling of employment discrimination cases. Over and over 
again, we have head the accusation that Judge Shedd shows a bias 
towards defendants. A review of Judge Shedd's record indicates that he 
has been fair to the civil rights claims of plaintiffs in his 
courtroom. In fact, Judge Shedd has only been reversed two times in 
employment discrimination cases. With such a low reversal rate, I am 
disappointed that some groups have insisted on attacking this fine 
judge.
  One commonly cited case is Roberts v. Defender Services, in which 
Judge Shedd dismissed a plaintiff's sexual harassment claim. In this 
case, Judge Shedd merely followed the law as established by the Supreme 
Court, which held in Faragher v. City of Boca Raton, 524 U.S. 775 
(1998), that the work environment must be both objectively and 
subjectively offensive. While the plaintiff had clearly shown that the 
work environment was objectively offensive, Judge Shedd determined that 
she had not made a showing that she perceived it to be offensive. He 
based his determination on the fact that she had recommended the 
position to someone else and stated that the employer was ``a nice 
person'' who was ``pretty good to work for.'' These comments by the 
plaintiff demonstrate that Judge Shedd's decision was reasonable under 
the circumstances of this case.
  The truth is that Judge Shedd has issued rulings that have benefitted 
plaintiffs on numerous occasions. For example, in Miles v. Blue Cross & 
Blue Shield, C.A. No. 3:94-2108-19BD, an action was brought under title 
VII of the Civil Rights Act by an African-American employee who alleged 
that she was fired because of her race. There was ample evidence that 
the plaintiff had been subjected to racial slurs before being fired. 
Judge Shedd appropriately denied the defendant employer's motion for 
summary judgment.
  In another case, Davis v. South Carolina Department of Health and 
Environmental Control, C.A. No. 3:96-1698-19BD, an action was brought 
under title VII by an African-American employee who alleged that she 
was denied a promotion because of her race. There was evidence that an 
unqualified white employee had been promoted and that racially 
disparaging remarks had been made. Judge Shedd followed the law and 
denied the defendant employer's motion for summary judgment. Again in 
Ruff v. Whiting Metals, C.A. No. 3:98-2627-19BD and Williams v. South 
Carolina Department of Public Safety, C.A. No. 3:99-976-19BC, Judge 
Shedd denied a defendant's motion for summary judgment on race 
discrimination claims.
  In the case of Treacy v. Loftis, C.A. No. 3:92-3001-19BD, Judge 
Shedd, overruling a magistrate judge's recommendation, declined to 
grant summary judgment on a fired employee's claim of intentional 
infliction of emotional distress. In that case, the plaintiff claimed 
that her job was terminated due to her involvement in an interracial 
relationship. Judge Shedd, in refusing to grant summary judgment, 
allowed the case to go forward.
  There are many other cases like these. Judge Shedd's record reveals 
that he has upheld important rights protected by the Constitution. If 
elevated to the Fourth Circuit, Judge Shedd will continue to protect 
civil liberties.
  In addition to Judge Shedd's proven record of protecting civil 
rights, he has personally dedicated himself to providing equal 
opportunities for women and minorities. As an example, Judge Shedd 
served as chairman of the South Carolina Advisory Committee to the U.S. 
Commission on Civil Rights. He also played an instrumental role in the 
selection of Margaret Seymour as the first female African-American U.S. 
magistrate judge in the district of South Carolina. When Judge Seymour 
was nominated by President Clinton to the district court, Judge Shedd 
fully supported her nomination. Furthermore, Judge Shedd has hired both 
African-American and female law clerks.
  I would like to turn to another accusation that has been leveled 
against Judge Shedd. He has been accused of espousing an unreasonably 
narrow interpretation of congressional power based on his decision in 
Condon v. Reno, 972 F.Supp. 977 (1997), in which he struck down the 
Driver's Privacy Protection Act. The act regulated the dissemination of 
State motor vehicle record information, and the State of South Carolina 
challenged its constitutionality. Judge Shedd ruled that under Supreme 
Court precedent, the act violated the 10th amendment by impermissibly 
commandeering State governments, forcing them to regulate in a specific 
fashion. The Fourth Circuit upheld this decision, Condon v. Reno, 155 
F.3d 453 (4th Cir. 1998), but the Supreme Court ultimately reversed. 
Reno v. Condon, 120 S.Ct. 666 (2000).
  I stress that this case was one of first impression. Given the U.S. 
Supreme Court opinions in New York v. United States, 505 U.S. 144 
(1992), and Printz v. United States, 521 U.S. 898 (1997), Judge Shedd's 
ruling was entirely reasonable. In a very persuasive opinion, he 
compared the Drivers Privacy Protection Act with those acts invalidated 
in New York and Printz and found it to have similar constitutional 
defects.
  Judge Shedd was not alone in his analysis. At least one liberal 
commentator, Erwin Chemerinsky, concluded that the Supreme Court's 
distinction of the Drivers Privacy Protection Act from the statutes 
struck down in New York and Printz was unconvincing. While Chemerinsky 
agreed with the final outcome of the case, he has argued that the 
Supreme Court should have overruled both New York and Printz in order 
to reach its decision in Reno. Professor Chemerinsky's argument lends 
support to the proposition that Judge Shedd, in striking down the 
statute, was correct in his interpretation of the law at that time.
  In addition, of the 16 lower Federal court judges who considered the 
constitutionality of DPPA, 8 determined that the statute was 
unconstitutional. In short, there is nothing to indicate that Judge 
Shedd's decision in this case was out of the mainstream.
  Another case that has been cited is Crosby v. U.S., in which Judge 
Shedd held that the plaintiff's claim under the Family and Medical 
Leave Act was barred by the 11th amendment to the Constitution. Judge 
Shedd's detractors have argued that this case is another example of his 
narrow view of congressional power. However, this accusation

[[Page S11274]]

is unfair and unwarranted. In this case, Judge Shedd sought to follow 
the law as established by the Supreme Court. He was not attempting to 
make new law, but was instead seeking to apply the law correctly. 
Furthermore, Judge Shedd was not alone in his decision. Out of nine 
circuit courts that have considered this same question, eight have 
agreed with Judge Shedd. It is worth noting that Judge Roger Gregory, 
originally appointed by President Clinton, joined the Fourth Circuit's 
opinion that agreed with Judge Shedd's ruling.
  Judge Shedd has also been criticized as being antiplaintiff for 
disposing of matters sua sponte, or on his own motion. This charge is 
without merit for a number of reasons. First, Federal judges face 
enormous caseloads. If an area of the law is clear, it is completely 
proper for the judge to act on his own motion, helping to move 
litigation along and clear the dockets. Second, the law clearly allows 
for district court judges to consider matters without prompting from 
lawyers. The Supreme Court has acknowledged this, stating in Celotex 
Corp. v. Catrett, 830 F.2d 1308 477 U.S. 317, 326 (1986), that district 
courts may grant summary judgment sua sponte to a party that has not 
moved for summary judgment. As long as a judge is acting properly, 
which Judge Shedd has always done, sua sponte decisions are entirely 
appropriate.
  I have known Judge Dennis Shedd for over 24 years and can personally 
vouch for his integrity and high moral character. He is truly a man of 
knowledge, ability, and superior ethical standards. Judge Shedd will 
bring a wealth of trial experience to the Fourth Circuit, having 
handled more than 4,000 civil cases and over 900 criminal matters. In 
addition, he possesses unmatched legislative experience. It is no 
surprise that the American Bar Association gave Judge Shedd a rating of 
``Well Qualified.'' I am proud to support my friend, Dennis Shedd, and 
I hope to see him confirmed to the United States Court of Appeals for 
the Fourth Circuit. I ask unanimous consent that the attached materials 
be printed in the Record.

    Dennis W. Shedd--Nominee to the Fourth Circuit Court of Appeals

       Background. Appointed by President George H.W. Bush to the 
     United States District Court for South Carolina in 1990, 
     Dennis W. Shedd has served as a federal jurist for more than 
     a decade.
       In addition to his service on the District Court, he sat by 
     designation on the Fourth Circuit Court of Appeals on several 
     occasions. Shedd also has served on the Judicial Conference 
     Committee of the Judicial Branch and its Subcommittee on 
     Judicial Independence.
       From 1978 through 1988, Judge Shedd served in a number of 
     different capacities in the United States Senate, including 
     Counsel to the President Pro Tempore and Chief Counsel and 
     Staff Director for the Senate Judiciary Committee.
       Judge Shedd is well-respected by members of the bench and 
     bar in South Carolina. According to South Carolina 
     plaintiffs' attorney Joseph Rice, ``Shedd--who came to the 
     bench with limited trial experience--has a good understanding 
     of day-to-day problems that affect lawyers in his courtroom. 
     . . . He's been a straight shooter.'' Legal Times, May 14, 
     2001.
       According to the Almanac of the Federal Judiciary, 
     attorneys said that Shedd has outstanding legal skills and an 
     excellent judicial temperament. A few comments from South 
     Carolina lawyers; ``You are not going to find a better judge 
     on the bench or one that works harder.'' ``He's the best 
     federal judge we've got.'' He gets an A all around.'' It's a 
     great experience trying cases before him.'' ``He's polite and 
     businesslike.''
       Plaintiff lawyers commended Shedd for being even-handed; 
     ``He has always been fair.'' ``I have no complaints about 
     him. He's nothing if not fair.'' Almanac of the Federal 
     Judiciary, Vol. 1, 1999.
       Judge Shedd would bring unmatched experience to the Fourth 
     Circuit. He has handled more than 4,000 civil cases since 
     taking the bench and over 900 criminal matters. In fact, no 
     judge currently sitting on the Fourth Circuit has as much 
     federal trial experience as Judge Shedd, and none can match 
     his ten years of experience in the legislative branch.
       Shedd's record demonstrates that he is a mainstream judge 
     with a low reversal rate. In the more than 5,000 cases Judge 
     Shedd has handled during his twelve years on the bench, he 
     has been reversed fewer than 40 times less than one percent). 
     Since taking his seat on the Fourth Circuit in 2001, Judge 
     Roger Gregory (a Democrat appointed by President Bush) has 
     written opinions affirming several of Judge Shedd's rulings. 
     Judge Gregory also agreed with Judge Shedd's holding in 
     Crosby v. South Carolina Dep't of Health (case cited by Judge 
     Shedd's opponents) that Congress did not effectively abrogate 
     State sovereign immunity in the Family and Medical Leave Act. 
     See Lizzi v. WMATA, 255 F.3d 128 94th Cir. 2001.
       Judge Shedd has been completely forthcoming with the Senate 
     Judiciary Committee's requests for information. Earlier this 
     year, Judge Shedd sent nearly one thousand unpublished 
     opinions to the Committee for review immediately after 
     Chairman Leahy requested them. Judge Shedd has continued to 
     provide additional unpublished opinions, as well as all other 
     information the Committee has requested regarding his 
     rulings, opinions and judicial record generally.
       Judge Shedd has bi-partisan support from his home state 
     Senators; Senators Thurmond and Hollings support his 
     nomination.
       A majority of the ABA's Standing Committee on the Judiciary 
     rated Judge Shedd ``Well Qualified.'' Democrats have called 
     the ABA rating the ``gold standard'' for judicial nominees.
                                           Rosenberg Proutt Funk &


                                               Greenberg, LLP,

                                     Baltimore, MD, June 25, 2002.
     Senator Patrick Leahy,
     Chairman, U.S. Senate Judiciary Committee, the Dirksen 
         Building, Washington, DC.
       Dear Senator Leahy: My name is Thomas W. Jones, Jr. I am an 
     African-American attorney currently practicing as a 
     litigation associate in Baltimore, Maryland.
       Upon my graduation from the University of Maryland School 
     of Law, I had the distinct pleasure of serving as a judicial 
     clerk for the Honorable Dennis W. Shedd (``Judge Shedd'') on 
     the U.S. District Court for the District of South Carolina. 
     During my eighteen months of working with Judge Shedd, I 
     never encountered a hint of bias, in any form or fashion, 
     regarding any aspect of judge Shedd's jurisprudence or daily 
     activities.
       It is apparent to me that the allegations regarding Judge 
     Shedd's alleged biases have been propagated by individuals 
     without the benefit of any real, meaningful interaction with 
     Judge Shedd, his friends or family members. I trust the 
     accusations of bias levied against Judge Shedd will be given 
     the short shrift they are due, and trust further that this 
     honorable Committee will act favorably upon the pending 
     nomination of Judge Shedd for the United States Court of 
     Appeals for the Fourth Circuit.
       Thank you for your attention regarding this matter.
           Respectfully,
     Thomas W. Jones, Jr.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                               Washington, DC, September 13, 2002.
     James Gallman,
     President, SCNAACP,
     Columbia, SC.
       Dear President Gallman: Thank you very much for your 
     interest in the nomination of Judge Dennis Shedd to the 
     United States Court of Appeals for the Fourth Circuit. I want 
     to assure you that Judge Shedd is an outstanding Federal 
     Judge, and he is committed to upholding the rights of all 
     people under the Constitution. Rather than being hostile to 
     civil rights, as his detractors have claimed, Judge Shedd is 
     committed to the ideals of equal justice under the law. I am 
     confident that upon an examination of his record, you will 
     find that Dennis Shedd is eminently qualified, applies the 
     law fairly, and exhibits an appropriate judicial temperament.
       I would like to address your concerns regarding Judge 
     Shedd's civil rights record. I believe that it is commendable 
     in all respects. First of all, Judge Shedd has been accused 
     of granting summary judgment for defendants in almost every 
     case. This accusation is false. A review of Judge Shedd's 
     record indicates that he has been fair to the civil rights 
     claims of plaintiffs in his courtroom. In fact, he has issued 
     rulings that have benefitted plaintiffs on numerous 
     occasions. For example, in Miles v. Blue Cross & Blue Shield, 
     C.A. No. 3:94-2108-19BD, an action was brought under Title 
     VII of the Civil Rights Act by an African-American employee 
     who alleged that she was fired because of her race. There was 
     ample evidence that the plaintiff had been subjected to 
     racial slurs before being fired. Judge Shedd appropriately 
     denied the defendant employer's motion for summary judgment.
       In another case, Davis v. South Carolina Department of 
     Health and Environmental Control, C.A. No. 3:96-1698-19BD, an 
     action was brought under Title VII by an African-American 
     employee who alleged that she was denied a promotion because 
     of her race. There was evidence that an unqualified white 
     employee had been promoted and that racially disparaging 
     remarks had been made. Judge Shedd followed the law and 
     denied the defendant employer's motion for summary judgment. 
     Again in Ruff v. Whiting Metals, C.A. No. 3:98-2627-19BD and 
     Williams v. South Carolina Department of Public Safety, C.A. 
     No. 3:99-976-19BC, Judge Shedd denied a defendant's motion 
     for summary judgment on race discrimination claims.
       In the case of Treacy v. Loftis, C.A. No. 3:92-3001-19BD, 
     Judge Shedd, overruling a magistrate judge's recommendation, 
     declined to grant summary judgment on a fired employee's 
     claim of intentional infliction of emotional distress. In 
     that case, the plaintiff claimed that her job was terminated 
     due to her involvement in an interracial relationship. Judge 
     Shedd, in refusing to grant summary judgment, allowed the 
     case to go forward.
       Judge Shedd has also been accused of making insensitive 
     remarks about the Confederate flag during proceedings in the 
     case of

[[Page S11275]]

     Alley v. South Carolina, C.A. No. 3:94-1196-19. a lawsuit in 
     which the plaintiffs sought to remove the Confederate flag 
     from atop the Statehouse dome. These allegations are 
     misleading and inaccurate. A close look at the transcript 
     reveals that Judge Shedd made a point of saying that his 
     comments were not meant to be disparaging. In fact, he said, 
     ``I'm not going to denigrate the constitutional claim about 
     the Confederate flag.'' Judge Shedd went on to say, ``I'm not 
     determining now on whether or not the flag should be there at 
     all. I'm just doing what-you lawyers have been with me before 
     know, I'm exploring your legal theory.''. The transcript 
     clearly indicates that Judge Shedd was questioning the 
     lawyers about their arguments in this case, something that is 
     done every day in courtrooms across the nation. Furthermore, 
     Judge Shedd never ruled on the merits of the case. Rather, he 
     abstained to allow a claim to go forward in state court, 
     arguably the forum better equipped to handle the issue.
       I would like to point out the case of Vanderhoff v. John 
     Deere, C.A. No 01-0406-19BD, the one case involving the 
     Confederate flag in which Judge Shedd did rule. In that case, 
     an employee was fired because he refused to comply with 
     company policy and remove the Confederate flag from his 
     toolbox. The employee sued under Title VII, a statute 
     designed to prohibit workplace discrimation based on race, 
     sex, religion, and national origin. He argued that his 
     national origin was a ``Confederate Southern American'' and 
     that he had been the subject of discrimination. Judge Shedd 
     rejected this argument and dismissed the plaintiff's claim. 
     Thus, in the one Confederate flag case where he ruled on the 
     merits, Judge Shedd's decision went against a flag proponent.
       In addition to Judge Shedd's demonstrated fairness in the 
     civil rights arena, he has shown that he is personally 
     committed to ensuring equal opportunities for women and 
     minorities. He was instrumental in the selection of Judge 
     Margaret Seymour, now a Federal District Court Judge, as the 
     first African-American female magistrate judge in the 
     District of South Carolina. He has also made an effort to 
     hire African-American and female law clerks. In fact, Thomas 
     Jones, an African-American man who clerked for Judge Shedd, 
     wrote a letter to Senator Leahy in which he said that the 
     allegations made against Judge Shedd should ``be given the 
     short shrift they are due . . . .''
       Next, I would like to address the concerns raised by the 
     case of Condon v. Reno, 972 F. Supp. 977 (D.S.C. 1997), in 
     which Judge Shedd held that the Driver's Privacy Protection 
     Act (DPPA) was unconstitutional. He was eventually reversed 
     by the Supreme Court. Reno v. Condon, 528 U.S. 141 (2000). It 
     is important to stress that this case was one of first 
     impression. Given the United States Supreme Court opinions in 
     New York v. United States, 505 U.S. 144 (1992), and Printz v. 
     United States, 521 U.S. 898 (1997), Judge Shedd's ruling was 
     entirely reasonable. In a very persuasive opinion, he 
     compared DPPA with those Acts invalidated in New York and 
     Printz and found it to have similar constitutional defects.
       While the Supreme Court ultimately disagreed with Judge 
     Shedd, his opinion was not outside of the mainstream. Of the 
     16 lower Federal court judges who considered the 
     constitutionality of DPPA, 8 determined the statute 
     unconstitutional. Some of these judges, such as Judge Barbara 
     Crabb and Judge John Godbold, were nominated by Democratic 
     presidents.
       In summary, I believe that Judge Shedd is a highly 
     qualified candidate who will make an excellent addition to 
     the United States Court of Appeals for the Fourth Circuit. It 
     is a shame that he has been characterized as a judge with an 
     agenda to curtail civil rights. On the contrary, Judge Shedd 
     has demonstrated that he will apply the law fairly to all 
     people. In addition, he has received a rating of ``Well 
     Qualified'' by the American Bar Association, and he has the 
     support of South Carolina Democrats, such as Senator Fritz 
     Hollings and state Democratic Party Chairman Dick 
     Harpootlian.
       I hope that this information is helpful during your further 
     consideration of Judge Shedd, and I hope that you will join 
     me in support of this fine man. I have known Judge Shedd for 
     a long time, and he is in all respects an honorable public 
     servant. Again, thank you for your interest.
       With kindest regards and best wishes,
           Sincerely,
     Strom Thurmond.
                                  ____

                                                       U.S. Senate


                                   Committee on the Judiciary,

                                    Washington, DC, July 30, 2002.
     Letters to the Editor,
     The New York Times,
     New York, NY.
       Dear Editor: This letter is in response to the editorial 
     that appeared in your paper on July 28, 2002, entitled ``The 
     Secret History of Judges.'' The piece questioned whether 
     Judge Dennis Shedd, whom President Bush nominated to the U.S. 
     Court of Appeals for the Fourth Circuit, has adequately 
     supplied the Senate Judiciary Committee with all relevant 
     information regarding his 11 years as a Federal District 
     Court Judge. I can assure you that Judge Shedd has been 
     thoroughly responsive to Committee requests and has provided 
     an extraordinary amount of material. In fact, to the best of 
     my knowledge, there is simply nothing left for him to hand 
     over. This tired call for more information is nothing more 
     than a delay tactic being utilized by political groups that 
     oppose most of President Bush's judicial nominees, even when 
     the nominees are, like Judge Shedd, extremely well-qualified.
       All interested parties have had ample time to examine Judge 
     Shedd's record. On June 27, 2002, Judge Shedd testified 
     before the Committee for more than two hours, during which 
     time he answered all questions asked of him. After the 
     hearing, individual Senators had the opportunity to submit 
     questions, and Judge Shedd prepared written responses to 
     questions from six Senators.
       Previously, on March 22, 2002, the Committee requested all 
     of Judge Shedd's ``unpublished'' opinions. To fulfill this 
     extremely broad request, as many as a dozen district court 
     employees were required to undertake an extensive and time-
     consuming manual search of case files within the district as 
     well as an electronic search of available computer records. 
     Within 12 days, Judge Shedd provided a first set of documents 
     to the Committee. As Judge Shedd was able to secure 
     additional documents from out-of-state court storage, he 
     supplemented his initial response with a second set of 
     documents on May 20, 2002. In summary, Judge Shedd 
     expeditiously supplied the Committee with more than 13,000 
     pieces of paper. Therefore, all documents responsive to this 
     request have been available to Committee members for a 
     significant period of time.
       Although it has been suggested that Judge Shedd had not 
     provided the appropriate documentation, the record will 
     reflect that Judge Shedd has diligently worked to produce all 
     documents, of which he and other court employees are aware, 
     that satisfy the Committee request. While Judge Shedd has 
     been assigned some 5,000 civil cases, many of these cases 
     included routine matters, such as foreclosures, and have 
     ended without any substantive ruling by Judge Shedd. 
     Likewise, cases are often referred to Federal magistrate 
     judges who make reports and recommendations to the District 
     Court Judge. While Judge Shedd has received some 1,400 
     reports from magistrate judges, many of these are on non-
     substantive issues. I can assure you that the opinions Judge 
     Shedd has supplied represent, to the best of his knowledge, 
     all of his substantive ``unpublished'' opinions.
       Your editorial asserts that civil rights groups have 
     identified ``important rulings by Judge Shedd that have not 
     been handed over.'' I have previously requested that these 
     groups identify the particular cases in which they are 
     interested, but they have yet to do so. I would once again 
     urge these groups to identify the cases that cause them 
     concern, and Judge Shedd will be happy to locate any 
     information on these cases that will assist Committee members 
     as they evaluate his nomination.
       In short, Judge Shedd has acted promptly, professionally, 
     and in good faith in his dealings with the Senate Judiciary 
     Committee. His record is as complete as any other circuit 
     nominee we have ever had before the Committee. There simply 
     is no justifiable basis to clam that he has failed to respond 
     to Committee requests.
       It is my sincere hope that Judge Dennis Shedd will soon be 
     confirmed as a Federal Circuit Court Judge. He is a fine man 
     who has performed ably on the Federal bench for more than a 
     decade. He has responsively provided the Senate Judiciary 
     committee with documentation that chronicles his career as a 
     distinguished jurist. Quite simply, Judge Shedd's record is 
     complete, and it proves that he is committed to upholding the 
     rights of all people under the Constitution.
           Sincerely,
     Strom Thurmond.
                                  ____


 Fairness: Judge Shedd's ABA ``Well Qualified'' Rating--The ABA Rated 
         Judge Shedd ``Well Qualified'' for the Fourth Circuit

       According to the ABA Standing Committee on Federal 
     Judiciary, a nominee is evaluated on ``integrity, 
     professional competence, and judicial temperament.''
       ``Integrity is self-defining. The prospective nominee's 
     character and general reputation in the legal community are 
     investigated, as are his or her industry and diligence.''
       ``In investigating judicial temperament, the Committee 
     considers the prospective nominee's compassion, decisiveness, 
     open-mindedness, courtesy, patience, freedom from bias, and 
     commitment to equal justice under the law.''
       ``To merit Well Qualified, the prospective nominee must be 
     at the top of the legal profession in his or her legal 
     community, have outstanding legal ability, wide experience, 
     the highest reputation for integrity and either have shown, 
     or have exhibited the capacity for, judicial temperament, and 
     have the committee's strongest affirmative endorsement.''
       Source: The ABA Standing Committee on Federal Judiciary: 
     What It Is and How It Works, American Bar Association (July 
     1999) (pages 4 and 6).
                                  ____


               [From the Post and Courier, Nov. 15, 2002]

                     Shedd's Advance a Welcome Sign

       President Bush's nomination of U.S. District Court Judge 
     Dennis Shedd of Columbia to the 4th U.S. Circuit Court of 
     Appeals finally was sent to the full Senate by the Senate 
     Judiciary Committee Thursday. That overdue action represents 
     an important step forward in breaking the partisan logjam on 
     federal judicial appointments.
       It also represents a potential step away from what Sen. 
     Strom Thurmond aptly described as ``destructive politics'' 
     last month

[[Page S11276]]

     after Judiciary Chairman Patrick Leahy, D-VT, reneged on his 
     promise to send Judge Shedd's nomination to the full Senate. 
     Sen. Thurmond, who's retiring after a long, distinguished 
     career in politics, vividly expressed his outrage at this 
     violation of personal trust, telling his colleagues: ``In 48 
     years in the Senate, I have never been treated in such a 
     manner.''
       And the Judiciary Committee's growing habit of blocking 
     presidential appointments to the Federal bench has reached 
     critical mass over the last year and a half. Democrats' 
     protests that Senate Republicans had subjected President 
     Clinton to the same mistreatment don't hold up when the rates 
     of rejection are considered, particularly at the appeals 
     court level. That blatantly party-line obstruction of 
     judicial appointments became a campaign season liability for 
     the Democrats in some states, including South Carolina, where 
     Republican Lindsey Graham repeatedly stressed the need to 
     break that pattern by giving President Bush a GOP Senate--and 
     a GOP-controlled Judiciary Committee--in his winning campaign 
     to replace Sen. Thurmond.
       Recognizing the incoming Senate's intentions on this issue, 
     and the voting public's message, Sen. Leahy didn't call for a 
     committee roll-call vote on the nominations of Judge Shedd 
     and Professor Michael McConnell to the appeals courts 
     Thursday, instead allowing them to advance.
       And despite familiar objections from special-interest 
     groups that seem intent on branding any judge who has ever 
     issued a purportedly conservative ruling as a reckless 
     ``extremist,'' Judge Shedd has the support of not just 
     leading Republicans, but of Sen. Ernest F. Hollings, D-SC. 
     The senator has been openly critical of the Judiciary 
     Committee's previous attempts to derail this nomination.
       Thursday's Judiciary Committee decision was not merely a 
     victory for Judge Shedd, President Bush, Sen. Thurmond and 
     Sen. Hollings. It was a victory for fairer, more efficient 
     consideration and confirmation of presidential judicial 
     appointments by the Senate.
                                  ____


               [From the Greenville News, Oct. 15, 2002]

                           Insulting Thurmond

       Senate Judiciary Committee Chairman Patrick Leahy, a 
     Democrat from Vermont, did a number last week on retiring 
     South Carolina Sen. Strom Thurmond, and in the process 
     thumbed his nose at both the Constitution and any sense of 
     fair play. Highly partisan Democrats don't want Thurmond's 
     choice for the 4th U.S. Circuit Court of Appeals, U.S. 
     District Judge Dennis Shedd, to get a well-earned promotion 
     to the appeals court.
       Shedd is eminently qualified, but he has been painted as an 
     opponent of civil rights, the disabled and common workers. 
     The case hasn't been made, but then, the Democrats who oppose 
     his nomination aren't interested in making the case with 
     facts. They have conveniently used Shedd as an election 
     issue.
       With the U.S. Senate in the hands of Democrats, it has 
     become something of a sport in Washington to prevent 
     President Bush from getting his top choice for federal 
     judges. But Sen. Leahy sunk to a new low last seek by 
     refusing to allow a vote on the Shedd nomination, and in 
     doing so, it became obvious he had flat-out lied to Sen. 
     Thurmond. Leahy had promised South Carolina's 99-year-old 
     senior senator a Judiciary Committee vote on Shedd, but that 
     was before word leaked that a committee Democrat would vote 
     for Shedd. If his nomination got to the full Senate, he would 
     be approved, especially with South Carolina's Sen. Fritz 
     Hollings wholeheartedly supporting this nomination.
       The Senate Judiciary Committee has become a graveyard for 
     Bush's top choices for seats on the federal appeals court. 
     The Democrats have flexed their muscles to prevent the 
     nomination of reputable choices--such as Charles Pickering 
     and Priscilla Owen--from making it to the Senate floor for a 
     vote they probably would win. But now the powerful Leahy has 
     proven he can go lower--by denying a vote, even after he made 
     a promise to allow one.
       Thurmond was indignant last week, making a rare Senate 
     speech in which he said about Leahy, ``In my 48 years in the 
     United States Senate, I have never been treated in such a 
     manner.'' Thurmond is leaving a Senate in which a man's word 
     is no longer his honor.
                                  ____


        [From the Orangeburg Times and Democrat, Oct. 13, 2002

                    Nomination of Shedd Held Hostage

       The continuing battle over federal judgeships grows more 
     frustrating.
       It's a partisan and philosophical battle that has gone 
     beyond what was ever intended by the framers of our 
     Constitution. The founders gave presidents appointment power 
     for judges, with the Senate's role being advice and consent.
       Particularly since the Clinton years of the 1990s, the 
     process has been paralyzed by politics. A Republican Senate 
     left Clinton nominees hanging, never even giving them a 
     hearing and a vote. The Democratic Senate has been doing the 
     same thing with President Bush's nominees.
       On Tuesday, partisanship got closer to home when Cordova 
     native and S.C. U.S. District Judge Dennis Shedd was denied a 
     vote by the Senate Judiciary Committee on his nomination to 
     the 4th Circuit Court of Appeals.
       The decision to delay the vote prompted S.C. Republican 
     Sen. Strom Thurmond, for whom Shedd once served as a top 
     aide, to react angrily at the committee and its Democratic 
     leader, Sen. Patrick Leahy of Vermont. Leahy said the vote on 
     Shedd was too contentious for the session and would have 
     sparked a debate delaying action on other judicial 
     candidates.
       That may be, but Thurmond was taking the rejection 
     personally, addressing the Senate Judiciary Committee himself 
     in a rare appearance.
       ``In my 48 years in the U.S. Senate, I have never been 
     treated in such a manner. You assured me on numerous 
     occasions that Judge Shedd would get a vote, and that is all 
     that I have ever asked of you. I have waited patiently for 17 
     months, and I have extended every courtesy to you,'' Thurmond 
     said to Leahy.
       The judgeship battles are likely to trample on more Senate 
     decorum, particularly when judges meet vocal opposition as 
     has Shedd. Despite endorsements by the American Bar 
     Association and others, Shedd has faced criticism from the 
     NAACP and other organizations contending his record shows no 
     sympathy for those in discrimination cases. Sixth District 
     Congressman Jim Clyburn is among opponents.
       But Shedd enjoys the support of both Republican Thurmond 
     and Democrat Ernest F. Hollings from South Carolina. And he 
     is former chief legal counsel to the Senate Judiciary 
     Committee, which Thurmond formerly chaired.
       Thurmond's anger over the delay of Shedd's nomination 
     probably won't change the equation.
       A vote probably will not come until next year--and may not 
     come then unless the Republicans regain control of the U.S. 
     Senate in November's election. That would mean that Thurmond, 
     who will soon turn 100 and is not seeking re-election, won't 
     be voting on a judicial candidate he recommended and 
     President Bush nominated way back on May 9, 2001.
       In all, Bush has nominated 126 U.S. Appeals Court and U.S. 
     District Court nominees, and the senate has confirmed 80: 14 
     judges to appeals courts and 66 to district courts. Most of 
     the others haven't been put to a vote.
       Shedd should not be one of them. His record is a good one, 
     and it is that record that should be the test of his 
     approval, not what others believe about his personal or 
     political philosophy.
       Shedd is certainly not out of the judicial mainstream and 
     his opinions are not rooted in controversy.
       Sen. Hollings is known for his candid if not controversial 
     assessment of people. The S.C. Democrat is solidly behind 
     Shedd, being the one to introduce him initially to the Senate 
     Judiciary Committee.
       Saying Shedd ``has an outstanding record of sound 
     judgment,'' Hollings told the Judiciary Committee that Shedd 
     is ``my kind of judge--hard and tough, but hard and tough on 
     both sides.''
       His nomination should be brought to a vote by the Senate 
     committee and then the full Senate, where we're confident he 
     will win approval.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I will speak today in morning business 
briefly.
  The PRESIDING OFFICER. The Senator may proceed.


                           Homeland Security

  Mr. DORGAN. Mr. President, I rise to say a few words about the issue 
of homeland security. I will not talk at the moment about the bill 
itself, which we will vote on tomorrow, but a couple of issues dealing 
with homeland security that are very important, that have been raised 
in recent days and need to be discussed.
  One issue deals with something that is happening in the Defense 
Department. My colleague Senator Nelson from Florida spoke of it 
earlier today. That is the creation of an Information Awareness Office 
and the prospect of having an agency that would amass your most 
personal information--credit card purchases, travels, medical 
information, and so on--and put it into a single database. That 
concerns me greatly. I will speak about that in a moment.
  But first I will speak about another issue relating to homeland 
security. This is an issue that was recently highlighted by a task 
force headed by former Senator Warren Rudman and former Senator Gary 
Hart.
  That task force included former Secretaries of State Warren 
Christopher and George Shultz, retired Admiral William Crowe, former 
Chairman of the Joint Chiefs of Staff, and others. There is a very 
significant blue ribbon task force.
  They issued a report that was sponsored by the Council of Foreign 
Relations. The report was titled ``America Still Unprepared, America 
Still In Danger.''

[[Page S11277]]

  The task force found that 1 year after the September 11 attacks, 
America remains--according to them--dangerously unprepared for another 
terrorist attack. At the top of the list of concerns in this task force 
was this:

       650,000 local and State police officials continue to 
     operate in a virtual intelligence vacuum without access to 
     terrorist watch lists that are provided by the United States 
     Department of State to immigration consular officials.

  Why is this important? Well, consider that 36 hours before the 
September 11 attack, one of the hijackers who piloted the plane that 
crashed in Pennsylvania, named Ziad Jarrah, a 26-year-old Lebanese 
national, was actually pulled over by the Maryland State Police for 
driving 90 miles an hour on Interstate 95. If this fellow's name had 
been on the State Department terrorist watch list--and it happens that 
it was not--there would have been no way for that Maryland State 
trooper to know it. That Maryland State trooper can type a name into 
the system and go to the NCIC where they have the database of convicted 
felons, but that trooper has no access to the watch list that the 
Immigration Service has courtesy of the State Department.
  You have all of these people around the country--law enforcement 
officials--who are actually the first line of defense and the first 
responders in the event something happens. And they are out there 
stopping people with traffic stops and stopping suspicious people who 
are driving automobiles without license tags, and so on. They don't 
have any idea whether someone they have just stopped is a known 
terrorist on a watch list prepared by the State Department and given to 
the Immigration Service and given to the consular offices. Why? Because 
they currently have no mechanism to access it.
  Right now, a county sheriff somewhere in a northern county in North 
Dakota is patrolling a road. If down that road for some reason would 
come a terrorist who crossed over a remote section on the border 
between the United States and Canada and a county sheriff stops that 
known terrorist who is on the watch list for driving 90 miles an hour 
on Highway 22, there isn't any way that county sheriff is going to be 
able to access that watch list and know that he or she has pulled over 
a known terrorist.
  That is wrong.
  Let me read an excerpt from the Hart-Rudman report, discussing what 
they regard as a top concern:

       With just 56 field offices around the nation, the burden of 
     identifying and intercepting terrorists in our midst is a 
     task well beyond the scope of the Federal Bureau of 
     Investigation. This burden can and should be shared with 
     650,000 local county and State law enforcement officers. But 
     they clearly cannot lend a hand in the counterterrorism 
     information void that now exists. When it comes to combating 
     terrorism, the police officers on the beat are effectively 
     operating deaf, dumb and blind.

  That is from the report.
  Again, quoting from the report:

       Terrorist watch lists provided by the United States 
     Department of State to immigration and consular officials are 
     still out of bounds for State and local police. In the 
     interim period, as information sharing issues get worked out, 
     known terrorists will be free to move about to plan and 
     execute their attacks without any bother from local law 
     enforcement officials because they can't know their names 
     and they can't access the list.

  My staff has been in contact with this task force. We have also been 
in contact with the State Department and the White House, asking when 
something is going to be done to connect the dots here. Since we made 
these contacts, the administration is apparently looking for ways to 
integrate that terrorist watch list--called the Tipoff database--with 
the National Crime Information Center which is accessible by State and 
local law enforcement officers. I call on the administration to 
expedite, as much as is possible, the effort to make this happen. We 
can't waste another day in this regard, as all of us know.
  The head of the CIA said the other day that we are in as much risk 
from a terrorist act as we were the day before September 11. If that is 
the case, then we ought to expect that all law enforcement officials 
around this country would have access to that terrorist watch list.
  Let me go now to the second issue. I just spoke of the need for law 
enforcement to have access to a list of known terrorists and those who 
associate with known terrorists for purposes of protecting this 
country.
  Well, one can certainly go to the other extreme in gathering 
information in the name of homeland security. And a good example of 
that is a project that is being developed in the Department of Defense, 
by the Information Awareness Office.
  The Information Awareness Office is developing a long-term plan for 
what is called data mining. A master plan would be developed by which 
all of the information that moves around electronically in our 
country--every purchase you make with a credit card, every magazine 
subscription you buy, every medical prescription you fill, every Web 
site you visit, every e-mail you send or receive, every academic grade 
you ever received, every bank deposit you made, every trip you book - 
would go into a massive database. And the Federal Government would use 
the database to identify suspicious behavior.
  That is not what we ought to be doing in this country. We ought to 
have a war on terrorism. But we ought not, in our zeal to engage in 
this war on terrorism, in any way break down the basic civil liberties 
that exist in our Constitution. The right to privacy is one of the most 
basic rights in America--the right to expect there is not a Big Brother 
with a massive computer system gathering all the information about 
everything everyone is doing in this country and evaluating it, 
perusing it, and moving it back and forth to try to determine who might 
or might not be doing something maybe suspicious.
  That is not, in my judgment, in concert with the basic civil 
liberties that we expect in this country and that are guaranteed to the 
citizens in this country. We must stop this before it starts.
  I understand that a change in law--specifically a change in the 1974 
Privacy Act--would be required to implement this data mining program. 
That, in my judgment, is not going to happen in the Congress. I would 
not support such a change, and I think most of my colleagues would 
oppose a change of that type.

  (Mrs. MURRAY assumed the chair.)
  Mr. BYRD. Will the Senator yield?
  Mr. DORGAN. I am happy to yield.
  Mr. BYRD. The Senator says he is confident that the Congress will do 
no such thing? I say most respectfully to the Senator, I would not 
count on what the next Congress might do. I am very much afraid of what 
the next Congress might do in many areas. Doesn't the Senator share 
that feeling?
  Mr. DORGAN. Well, I happen to----
  Mr. BYRD. I say, Congress normally would not do that. But I am not 
too sure what the next Congress might do.
  Mr. DORGAN. Madam President, I understand the concern expressed by my 
colleague. Let me say, there is a great disinfectant in this country, 
and that disinfectant is sunlight. If we can shed some light on these 
kinds of proposals, I do not think there is any question the American 
people will demand--will demand--of this Congress to preserve the basic 
rights, and especially the basic right to privacy that exists and that 
they expect to continue in the life of this country.
  So I understand the point that the Senator from West Virginia makes, 
but I believe the more we disclose the efforts of those who would 
suggest that it is all right to snoop about everybody and everything 
that goes on in this country, the more we will expose, in my judgment, 
the great, great concern and anger of the American people to demand 
their right to privacy and demand that we not amend the 1974 Privacy 
Act in order to accommodate this kind of activity.
  Mr. BYRD. Madam President, will the Senator yield?
  Mr. DORGAN. Of course I will yield.
  Mr. BYRD. I am not going to detain the Senator. My colleague here 
wishes to get the floor, and I am not going to detain him, but I still 
have to say that I am surprised at some of the things we do here.
  The distinguished Senator from North Dakota is one of the brightest 
Senators I have ever seen over my good many years in this institution. 
But let's take the war, the resolution on a war with Iraq. I took the 
position that if we are, indeed--I was against that resolution, but I 
said, if, indeed, we are going to shift this kind of power to the 
President, a power to declare war, then

[[Page S11278]]

shouldn't we put a sunset provision in, shouldn't we stop that, at 
least give him 2 years, and then say that we have to take another look 
at that?
  Was the Senator surprised, as I was, to see this very body--and even 
more surprisingly to see our own party--oppose that provision, a sunset 
provision, when the Constitution says Congress shall have the power to 
declare war, and we were shifting that power to the Chief Executive to 
determine how and when our military forces would be used, for how long 
and where? And he has that power in perpetuity. The next President 
after him will have that same power.
  I was surprised. I am surprised to see where this Senate, which has 
been the great protector of the American people and the constitutional 
system for over 200 years, is going of late. I have been very bitterly 
disappointed in this Senate, of which I am a part, to see where it is 
going. It seems to have lost its nerve, lost its way, lost its vision, 
lost its understanding of its role under the Constitution.
  Well, I thank the Senator and yield the floor.
  Mr. DORGAN. Madam President, let me conclude by saying, I understand 
the angst and the concern expressed by my colleague.
  After September 11, a day that this country experienced a terrible, 
terrible tragedy--we have come together and we have worked together to 
try to protect our homeland. But there have also been, in this period, 
instances where we have gone overboard. We should not sacrifice privacy 
rights in the name of homeland security. We need to find an appropriate 
balance between the two.
  There is much we can do, and much we should do, and much we will do, 
in my judgment, to improve law enforcement capabilities, but we can do 
that without injuring the American people, without diminishing the 
right to privacy.
  I understand the point that the Senator from West Virginia makes. But 
my point is, if someone is creating an office with the expectation that 
Congress will amend the 1974 Privacy Act so that the Federal Government 
can track where you shopped, where you spent money, where you traveled, 
what airline you ride on, how much you owe, what kinds of grades you 
received--if someone thinks that the Congress is going to allow that to 
happen, that someone is sadly mistaken.
  I do not think Congress is going to allow that to happen. I am not 
going to allow that to happen. My colleague from Florida spoke on the 
floor earlier today and it prompted me to want to come to say, as one 
Member of the Senate, I think there will be many of us who come to the 
floor of the Senate and say, this isn't something that will be allowed. 
This is not something that Congress will entertain in any serious way. 
The right to privacy is critical. It is important. And we must respect 
it.
  So I spoke about two things: One is the need for law enforcement 
officials around the country to access the State Department terrorist 
watch list. That is important, and it is necessary. I also spoke about 
the prospect of gathering raw data about everybody in the country, 
about everything they do, to identify ``suspicious'' behavior. That is 
dangerous, and we ought not to consider it.
  Madam President, others want to speak. I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent to speak in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                The Children's Health Insurance Program

  Mr. ROCKEFELLER. Madam President, I rise today to ask unanimous 
consent for a bill which has been hotlined on our side and which 
relates to improved protection for children under the Children's Health 
Insurance Program. And it is not a bill which I will hand to the clerk 
at the time that I have completed my remarks, nor will I ask unanimous 
consent that it be printed in the Record, although it is ready and 
being hotlined, because we want to try to resolve a few remaining 
problems from several States on our side, which I do not think we are 
going to be able to do. We have tried in every way to do it.
  Fundamentally, the Senator from West Virginia is on his feet trying 
to convince those States, whether they are here or not, whether their 
staff members perhaps are, not to try and do what has happened so often 
before under the Children's Health Insurance Program, and that is a 
State at the last moment using the leverage of the final seconds of 
Congress to try to leverage a better deal for itself.
  The House is coming back to pass homeland security. There was one 
objection made on that side in the House. That person is being worked 
with at this time. If that objection is not raised and there is not an 
objection raised here, then the Children's Health Insurance Program 
could get funding for another 2 years. If not, funds will be returned 
to the Federal Government. Children will not get health insurance, and 
there will be a very dramatic effect which this Senator does not want 
to see happen.
  This bill, which I will not ask unanimous consent to report, is very 
much bipartisan. It has been worked on for a very long period of time. 
It started back in 1992, something of that sort. It had a slow 
evolution because Senator John Chafee and myself wanted very much for 
the bill to be done under Medicaid. The Governors struggled strenuously 
to have the entire matter handled on a State-by-State basis, which was 
in effect a mistake because it meant some States that were very 
aggressive picked it up, and in others that were not so aggressive--my 
own being one of those--it took a number of years for the program to 
get going. That was lost time, lost health care for children.
  It is very much a bipartisan, bicameral agreement that we believe is 
in the best interests of our constituents and that we can do it on the 
Children's Health Insurance Program this year.
  The budget situation clearly is going to get a lot worse, starting in 
January. We need to protect the CHIPS funds before they are spent on 
other matters, as indeed they will be because, as I indicated, the 
money will be returned to the Federal Government. Don't expect that to 
come back into children's health insurance.
  It is my understanding there are a number of Senators who have 
expressed concern and have stated their intention to hold up this bill 
in an effort to get the best possible outcome for their State. I do 
understand that. I have been through that a number of times even this 
year with individual States, now two or three States, one or two 
States, where they are trying to use a formula, which has been worked 
out, which applies to all States equally, to increase that formula to 
allow them to do other things which are outside of the Children's 
Health Insurance Program.
  The Children's Health Insurance Program is obviously larger than any 
one State. My State does not get what it needs. There are only 20,000 
children on a regular basis who are covered, although 55 have come in 
and out of that program, but I cannot say in all conscience that 55 are 
covered. The Children's Health Insurance Program is in a situation that 
if we do not act now, this money will be lost from the Children's 
Health Insurance Program for good.
  It will happen. We have a new administration, new priorities, new 
budget, and the same OMB director who has very firm views about this.
  This is not, however, a permanent solution. I am trying to stanch the 
drain, the bleeding for these next 2 years. I am trying my level best 
to do that.
  This bill actually has a chance to pass in the Senate and in the 
House and to be taken up and passed in its entirety. I only ask with 
all of my heart that Senators give it a chance, that Senators not try 
to leverage the last possible variety or program outside of the CHIP 
program or extension of or some particular addition which will bring 
down, in fact, if an objection at this very late stage, with a day or 
so remaining, which will obviously work, is held. If that objection is 
held, then there will be no bill at all.
  Earlier this year I worked in a bipartisan manner to develop a very 
comprehensive proposal based on a basic and fundamental philosophy that 
no child should go without needed health care. I was pleased at the 
time to be joined by my good friend Senator Lincoln Chafee, Senator 
Kennedy, and Senator Hatch to introduce the

[[Page S11279]]

Children's Health Insurance Improvement and Protection Act of 2002. 
Unfortunately, no action has been taken on that proposal, and I am left 
worrying that we will end this session in a day or two having forgotten 
our children.
  Therefore, I am introducing a proposal that will at least protect the 
Children's Health Insurance Program for the next 2 years. This is not a 
permanent solution. This can change. But it is a solution for the next 
2 years so money does not have to be returned. Children will be left 
behind.
  The Children's Health Insurance Program, as the Presiding Officer 
knows very well, has been an unqualified success. It has been an 
amazing success. Last year 4.6 million children across America were 
enrolled in the Children's Health Insurance Program and the percentage 
of children without health insurance has declined in recent years by 
reason of the Children's Health Insurance Program. In my State of West 
Virginia, the CHIP program provides health coverage on a permanent 
basis to over 20,000. And, of course, it needs to do much better than 
that. As I indicated, we were slow in starting a number of years ago. 
We have picked up our pace more recently.
  Health insurance coverage is key to assuring children's access to all 
kinds of health care. I need not go into this. Uninsured children who 
are injured are 30 percent less likely than insured children to receive 
medical treatment, 3 times more likely not to get a needed 
prescription. Health outcomes are affected in all respects. As children 
do eventually become adults, they carry with them the legacy of what 
they didn't get as children in the way of health insurance.
  However, the continued success of the CHIP program is now, as I have 
indicated--I hope soberly enough--in very serious jeopardy. On 
September 30 of this year, $1.2 billion in unspent children's health 
insurance funds was sent back to the General Treasury. It is gone. In 
addition, some $1.5 billion of these funds are projected to revert back 
to the Treasury next September 30. If we do not act to protect this 
money for children and send money to the States that can in fact use 
it, we will have failed our children.
  A 2-year fix is only a first step. There is much more that we need to 
do. The Bush administration projects that 900,000 children will lose 
their health insurance coverage between fiscal years 2003 and 2006 if 
we do not take action this year.
  The bill I am discussing, that I hope will not be blocked by any 
individual Member, is tremendously important. It is called the CHIP 
Dip. Federal CHIP funding has dropped by more than $1 billion this 
year, and this reduction has no underlying health policy justification 
whatsoever. I cannot honestly imagine that with so many children at 
stake in so many different States, that one would look at the last 
moment to leverage a particular advantage.
  I have been through this before even this year with a Senator from 
another State. And in formulas, there are various ways, technical ways, 
of things happening. Those can be brought up in a very careful and 
effective way at the last moment, and people can dig in their heels. 
But I beg Senators to look at the overall results for our children.

  If we do not get this bill, it will affect the next 2 years. All of 
this, I might say, resulted in something that took place during the 
budget compromises that we had in 1997. These programs all have sort of 
obscure beginnings, but there are very large consequences.
  As a result, a number of States will have insufficient Federal 
funding to sustain their enrollment. They just won't have that money. 
They will have no choice but to scale back or limit their Children's 
Health Insurance Programs. I cannot imagine anything worse.
  We have talked about judges this afternoon while I was presiding. We 
talked about homeland security. I am talking about children's health 
insurance. I would not put that second to either of the previous two 
discussions. I care passionately about it. I remember precisely when 
the Senate got together and asked all the staff to leave, and 20 of us 
with very different points of view sat around a number of years ago and 
we worked out a children's health insurance budget, which passed very 
easily. Some people had never talked about health insurance at all, and 
we said this cannot do for children. It passed and it has been moving 
along ever since.
  The biggest problem will result in enrollment cuts in the CHIP 
Program and the future health problems, as I indicated, of adults who, 
as children, could have received benefits under the CHIP Program but 
who did not because we were unable to take action, or the program was 
fundamentally insufficient.
  We are trying to do the best we can. I am introducing this concept of 
the bill. It is being hotlined on our side. It has not been hotlined on 
the Republican side yet.
  Again, it is only a first step that we need to take. We need a 
comprehensive and reasonable approach to shore up CHIP financing and 
avert a devastating enrollment. I cannot think of anything more 
important that we can do as a nation.
  I conclude by saying we need to put more money into this program. 
However, this legislation--at least for the short period--will protect 
$1.2 billion that should be spent on children's health insurance rather 
than on roads or other matters, and will put money into States that can 
use it now to cover children. It is the least we can do.
  I urge my colleagues to support this legislation, and I urge my 
colleagues on the other side to support it in the last days when it is 
hotlined on their side of the aisle. I urge my colleagues on this side 
of the aisle to support it for the protection of 4.6 million children 
across America and giving us a chance to do more.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. Madam President, I see two of my distinguished colleagues 
on the floor of the Senate who want to speak. At this moment, I am in 
no great hurry to get away. I am happy to accommodate both of them.
  I ask unanimous consent that I may yield to either Senator Specter or 
Senator Frist--Senator Frist first. How much time would the Senator 
like?
  Mr. FRIST. Less than 15 minutes.
  Mr. SPECTER. I would like 10 minutes.
  Mr. BYRD. For not to exceed 25 minutes--15 and 10--and that I then 
regain my right to the floor, even though I may walk away from the 
floor in the meantime.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. I thank our distinguished President pro tempore for 
accommodating our schedules.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. FRIST. Madam President, I ask unanimous consent to speak in 
morning business, if that is necessary.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Homeland Security

  Mr. FRIST. Madam President, I rise to address a homeland security 
issue that we will be voting on tomorrow morning. Specifically, I would 
like to discuss the Lieberman amendment. This amendment strips out 
certain provisions which Senator Lieberman and other proponents of the 
provision believe are unrelated to the underlying homeland security 
bill.
  More specifically, I want to address the issue of vaccines. There are 
three claims that have been made by the proponents of the Lieberman 
amendment, as they relate to the vaccine provisions. For my colleagues 
who were not on the floor Friday, I refer them to some of my underlying 
comments on the policy of the homeland security bill and the vaccine 
provisions which I mentioned on the floor Friday.
  This afternoon, what I would like to do specifically is examine these 
three claims. First, the proponents of the Lieberman bill say that the 
underlying vaccine provisions in the bill remove individual rights to 
sue. Their second claim is that Thimerosal, contained in vaccines, 
causes autism. The third claim I would like to refute is that these 
vaccine provisions do not belong in the homeland security bill.
  Claim No. 1: The proponents of the Lieberman amendment say the 
vaccine provisions remove individual rights to sue. They are saying 
these provisions are an example of Republicans fronting for special 
interests; that they take away individual rights to sue and provide 
legal immunity from liability for vaccine makers.

[[Page S11280]]

  My response is that these provisions do nothing more than require 
injuries that are related, or allegedly related, to a vaccine to first 
proceed through the Vaccine Injury Compensation Program (VIC program). 
The VIC program was very specifically established in the mid-1980s for 
all injuries that are allegedly related to a vaccine.
  Since the mid-1980s, all such injuries alleged to be caused by a 
vaccine are collected and channeled quickly and appropriately first 
through this Vaccine Injury Compensation Program. A no-fault, efficient 
alternative to our tort system; very quickly.
  That requirement is law today. The provisions that are in the 
underlying homeland security bill simply restate and clarify what that 
law is and what that law does. If there is an alleged vaccine-related 
injury, you first go to the Vaccine Injury Compensation Program. After 
a period of time, whether or not the program decides in your favor, 
whether or not there is what you regard as adequate compensation, at 
the end of that program, you can simply state that you still want to go 
to court. Whatever that program decides, you are free to go to court. 
You are free to sue, and there are no caps in terms of liability.
  The provisions in this bill take away no one's right to sue. The 
provisions in the underlying homeland security bill provide no immunity 
from liability.
  A little perspective: There are currently about 875 cases alleging 
injury due to the presence of a preservative called Thimerosal that is 
no longer used in vaccines. Right now, these 875 cases are in front of 
the Vaccine Injury Compensation Program, consistent with the law since 
the 1980s. These cases are in no way affected by the provisions in the 
homeland security bill. I want to repeat that. These 875 cases that are 
in the Vaccine Injury Compensation Program are being dealt with in an 
orderly process that was outlined several months ago, and they are in 
no way affected by the provisions in the underlying bill.
  If individuals are unsatisfied with what the Vaccine Injury 
Compensation Program decides, at the end of it, you can say: Forget 
what you have concluded from me; I am going straight to court. Anyone 
can do that today, and one can still do that with the provisions of 
this bill.
  The only people who are really affected by the language in this 
underlying homeland security bill are the trial lawyers who are trying 
to circumvent the very law this body passed in the mid-1980s--a law 
which has worked very well since that point in time. The trial lawyers 
basically are trying to create a loophole in the current law.
  The provisions in the underlying homeland security bill state very 
simply that you first go to the Vaccine Injury Compensation Program, 
and for good reason. After which, you can still go to court and sue 
with no caps or no limits.
  Claim No. 2--and this one probably bothers me as much as any because 
it is twisting medical science. I am not sure exactly what the reasons 
are, but this claim is Thimerosal-containing vaccines cause autism. 
Additionally, proponents claim that Thimerosal as an additive in a 
vaccine has a causal relationship to the autism, a disease with 
increasing incidence. The incidence of autism is increasing. We do not 
know why, and that is why it is important for us to conduct the 
appropriate research.
  There has been a lot of misrepresentation about the various vaccine 
provisions in the bill, but this one really irks me the most. It is 
grandstanding which crosses the line because it is not what science 
says. It is not what the medical community says. It is not what medical 
science in the broadest sense says. In fact, it is the exact opposite 
of what the Institute of Medicine has said.
  Last week on the floor one of my colleagues said these provisions in 
the underlying homeland security bill--saying why they must be 
stricken--said specifically:

       Liability protection for pharmaceutical companies that 
     actually make mercury-based vaccine preservatives that 
     actually have caused autism in children. . . .

  That is scientifically wrong. Science does not validate it. Let me 
tell you what science says. I quote the October 2001 Institute of 
Medicine record. The report is called ``Thimerosal-Containing Vaccines 
and Neurodevelopmental Disorders.'' That report concluded:

       The hypothesis that Thimerosal exposure through the 
     recommended childhood immunization schedule has caused 
     neurodevelopmental disorders is not supported by clinical or 
     experimental evidence.

  The argument that is being used in support of the Lieberman amendment 
as the reason to support stripping these provisions is based on a false 
premise, a totally false premise, according to medical science today. 
What bothers me about it, and the reason this bothers me more than any 
of the other three claims, is probably because it scares parents. It 
says vaccines are going to hurt your children, and that demagoguery is 
going to mean these parents are not going to let their children get 
these childhood vaccines. These vaccines fight diseases that have 
caused pandemics and epidemics, diseases that will kill children if we 
do not make the vaccines available. Epidemics will occur, and death 
will ensue.
  I challenge my colleagues to go to the American Academy of Pediatrics 
and to the Institute of Medicine and ask that question: Does 
Thimerosal, according to the scientific literature, cause autism? The 
answer is no.
  A number of the people on the floor have also held up a New York 
Times magazine article quoting it as further proof that the 
preservative Thimerosal causes autism. I do not want to spend a lot of 
time on it, but I do want to read what the people who are quoted in the 
article are saying.
  I ask unanimous consent that two letters be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Institute for Vaccine Safety, Johns Hopkins University, 
           Bloomberg School of Public Health,
                                                November 11, 2002.
     Proposed title: Misleading the public about autism and 
         vaccines.

       To the editor: The unfortunate use of a sensationalized 
     title in the article published November 10, 2002 in the New 
     York Times Magazine ``The not so crackpot autism theory: 
     reports of autism seem to be on the rise. Anxious parents 
     have targeted vaccines as the culprit. One skeptical 
     researcher thinks it's an issue worth investigating,'' 
     absolutely misrepresents my opinion on this issue. Also, the 
     caption under the photograph of me ``Neal Halsey says that 
     vaccinologists have no choice but to take the thimerosal 
     threat seriously'' is not a statement that I ever made. There 
     is no ``threat'' as thimerosal has been removed from vaccines 
     used in children. The headline, the press release issued 
     prior to publication, and the caption are inappropriate. I do 
     not (and never did) believe that any vaccine causes autism.
       I stated to the author on at least two occasions that the 
     scientific evidence does not suggest any causal association 
     between vaccines and autism and he reaffirmed that the 
     article would reflect my opinion. Unfortunately, the title 
     implies the opposite opinion. A ``fact checker'' employed by 
     the New York Times asked me several questions and minor 
     corrections were made, but I was never shown the text of the 
     article and no questions were asked about the title that 
     implies a belief that I do not hold. It was my expectation 
     that the title would be about thimerosal and the difficult 
     decisions that were made during the past three years that 
     have resulted in the removal of thimerosal as a preservative 
     from vaccines administered to infants and young children. 
     Changes in the use of thimerosal were made by the Food and 
     Drug Administration and the vaccine industry with urging by 
     the American Academy of Pediatrics and the Public Health 
     Service in a concerted effort to make vaccines as safe as 
     possible.
       The sensationalized title sets an inappropriate context for 
     everything in the article. Readers are led to incorrectly 
     believe that statement in the article refer to autism. I have 
     expressed concern about subtle learning disabilities from 
     exposure to mercury from environmental sources and possibly 
     from thimerosal when it was used in multiple vaccines. 
     However, this should not have been interpreted as a support 
     for theories that vaccines cause autism, a far more severe 
     and complex disorder. The studies of children exposed to 
     methylmercury from maternal fish and whale consumption and 
     the preliminary studies of children exposed to different 
     amounts of thimerosal have not revealed any increased risk of 
     autism.
       Inappropriated reporting has contributed to public 
     misunderstanding of vaccines and other health care issues. 
     The use of deceptive title is one of the primary means that 
     newspapers have misled the public. The New York Times and 
     other newspapers need to conduct self-examinations into this 
     role in misleading the public and modify procedures 
     accordingly to help prevent future major misrepresentations 
     of scientific data and opinions. Another disserve to the 
     public comes

[[Page S11281]]

     when scientists become reluctant to talk with the media for 
     fear of being misquoted or misrepresented. I have already 
     spent a great deal of time correcting the misinformation in 
     the Sunday's NYT Magazine article. Naturally, the next 
     reporter from the NYT who contacts me will be met with 
     skepticism and reluctance unless changes are made to prevent 
     recurrences of this debacles.
       Apparently, editors, not authors, write most titles. To 
     avoid misinterpretations authors should propose titles and 
     assume responsibility for making certain that titles do not 
     misrepresent the opinions of individuals or information 
     presented in the article. Proposed titles and subtitles 
     should be included in the review by ``fact checkers''' when 
     interviewing people whose opinions are included in the title. 
     The best way to avoid these problems would be to permit 
     individuals referred to in articles an opportunity to read a 
     draft of the text before it is to late to correct mistakes or 
     misunderstandings.
       The New York Times and other newspapers and magazines 
     should have policies requiring authors, editors and fact 
     checkers to disclose personal associations with issues 
     covered in articles they are involved in preparing and they 
     should be relieved from their responsibility for articles 
     where they have personal issues or conflicts of interest.
       The general public and parents of children with autism have 
     been misled by the title of this article and the news 
     release. This is a disservice to the public and the value of 
     my opinion has been diminished in the eyes of physicians, 
     scientists, and informed members of the public. I encourage 
     interested readers to review my scientific publications and 
     to read objective reviews of this and under other vaccine 
     safety issues conducted by the Institute of Medicine 
     (www.iom. edu).
                                                Neal Halsey, M.D.,
     Director.
                                  ____

         Department of Pediatrics, Duke University School of 
           Medicine,
                                                       Durham, NC.
     Subject: Thimerosal issue.

       To the Editor: As one of the two authors of the July 7, 
     joint PHS/AAP 1999 statement that you cite in your article on 
     ``The Not-So-Crackpot Autism Theory'' it is appropriate that 
     several misconceptions in your article be rectified. The EPA 
     guidelines on mercury levels related to methyl mercury, a 
     very different compound from ethyl mercury which is the 
     metabolite of thimerosal. Three other guidelines issued by 
     federal and World Health Organization agencies were not 
     exceeded by the vaccine levels.
       Nevertheless we chose to recommend the removal of 
     thimerosal, not because there was any evidence of its 
     toxicity to vaccine recipients, but to enhance public 
     confidence in vaccines. To the credit of the pharmaceutical 
     industry, within 1 year all vaccines for children were free 
     of thimerosal.
       The only possible exception is influenza virus vaccine 
     which is not recommended for children less than 6 months of 
     age and for which a newly licensed product is now available 
     free of thimerosal. Despite the absence of thimerosal from 
     these products over the past two years, there has been no 
     decrease, in fact an alleged increase, in the incidence of 
     autism among our childhood population--strongly suggesting 
     other factors involved in its etiology. Regrettably this 
     exemplifies another issue where the best-intentioned actions 
     have served to benefit no one other than the liability 
     lawyers who feed on events of this sort as sharks in bloodied 
     waters.
           Yours sincerely,

                                           Samuel L. Katz, MD,

                                      Wilburt C. Davison Professor
                                            and Chairman Emeritus.

  Mr. FRIST. Madam President, I will quote a couple paragraphs from 
each.
  The first is from Dr. Neal Halsey, who is profiled in the article in 
the New York Times and who is characterized as being concerned about 
the Thimerosal threat. Dr. Halsey heads up the Johns Hopkins University 
Institute for Vaccine Safety, and he wrote saying that this story

       absolutely misrepresents my opinion on this issue. . . 
     .There is no ``threat'' as thimerosal has been removed from 
     vaccines used in children. The headline, the press release 
     issued prior to publication, and the caption are 
     inappropriate. I do not (and never did) believe that any 
     vaccine causes autism.

  He continues:

       I stated to the author on at least two occasions that the 
     scientific evidence does not suggest--

  Does not suggest--

       any causal association between vaccines and autism and he 
     reaffirmed that the article would reflect my opinion. 
     Unfortunately, the title implies the opposite opinion.

  He concludes:

       The general public and parents of children with autism have 
     been misled by the title of this article and the news 
     release. . . .I encourage interested readers to review my 
     scientific publications and to read objective reviews of this 
     and other vaccine safety issues conducted by the Institute of 
     Medicine.

  The second letter is from Dr. Samuel Katz, Professor and Chairman 
Emeritus at the Department of Pediatrics at the Duke University School 
of Medicine. Dr. Katz writes:

       As one of the two authors of the July 7 joint PHS/AAP 1999 
     statement that you cite in your article . . . it is 
     appropriate that several misconceptions in your article be 
     rectified. . . .we chose to recommend the removal of 
     Thimerosal, not because there was any evidence of its 
     toxicity to vaccine recipients, but to enhance public 
     confidence in vaccines. To the credit of the pharmaceutical 
     industry, within 1 year all vaccines for children were free 
     of Thimerosal.

  Dr. Katz concludes:

       Despite the absence of Thimerosal from these products over 
     the past two years, there has been no decrease, in fact an 
     alleged increase, in the incidence of autism among our 
     childhood population--strongly suggesting other factors 
     involved in its ideology. Regrettably, this exemplifies 
     another issue where the best-intentioned actions have served 
     to benefit no one other than the liability lawyers who feed 
     on events of this sort as sharks in bloodied waters.

  The final statement is from Every Child by Two, the Rosalynn Carter-
Betty Bumpers Campaign for Early Childhood Immunizations in a statement 
released today:

       Most importantly, we are concerned that the Senate may be 
     inadvertently fueling fears that vaccines cause autism. In 
     fact, well-respected studies concluded that the evidence is 
     inadequate. Much research is available to support these 
     conclusions.

  Madam President, the third claim--and I will be brief on the third 
claim--we have heard on the floor from the advocates of the Lieberman 
amendment, which I encourage my colleagues to oppose, is that the 
vaccine provisions do not belong in the homeland security bill. I would 
argue just to the contrary. If we do not have a stable manufacturing 
base for vaccines, there is absolutely no way we can prepare our 
communities and our Nation in the event there is a biological warfare 
attack on our soil.
  We talk a lot about smallpox, and we all know today we are 
inadequately protected because today we are inadequately vaccinated 
against smallpox. We cannot destroy the manufacturing base for our 
vaccines today. We started with 12 vaccine companies in this country, 
companies that made vaccines. In large part because of the liability 
issue, the number of companies making vaccines has decreased to four 
vaccine manufacturers in the world. Only two vaccine manufacturers are 
in this country, and at the same time, the National Institutes of 
Health is embarking upon a new initiatives to develop a vaccine for 
botulinum toxin, a major initiative on their part. If we vote to strike 
these provisions, we are putting at risk our manufacturing base which 
we absolutely must have to be a prepared Nation. Vaccine development 
cannot be ramped up quickly because manufacturing is a highly complex 
process. These important provisions further stabilize the vaccine 
supply system, and thus, are key to our ability to establish 
appropriate homeland security.
  Those are the three claims we have heard over the last 2 to 3 days. I 
encourage my colleagues to look at earlier statements on what the 
vaccine provisions are specifically.
  I urge my colleagues to vote against the Lieberman amendment tomorrow 
and to move forward on this important homeland security bill.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. How much time remains of the 25 minutes identified by 
the Senator from West Virginia?
  The PRESIDING OFFICER. The Senator from West Virginia has 10 minutes.
  Mr. SPECTER. I thank the Chair.


                       Nomination of Dennis Shedd

  Madam President, I will briefly comment on two matters: First on the 
confirmation of Judge Shedd, and second on the pending Lieberman 
amendment to the homeland security bill.
  I support confirmation of Judge Shedd for a number of reasons. First, 
he has been found well qualified by the American Bar Association, the 
highest rating which can be given. I knew Judge Shedd when he served as 
chief counsel, chief of staff, to the Judiciary Committee from 1981, 
when I came to the Senate and started to serve on the Judiciary 
Committee, until 1988. I believe he is a fair, equitable, and competent 
jurist. I know Judge Shedd's record on the U.S. district court where he 
has served since 1991. I asked Judge Shedd some questions, and he 
responded in some detail.

[[Page S11282]]

  I ask unanimous consent that Judge Shedd's written response be 
included at the conclusion of my comments.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. In those written comments he pointed out that in civil 
demonstration cases he has been fair and equitable: One bench trial 
verdict of over $2 million and another over $1 million; he has employed 
both female and African-American law clerks; and, in general, set forth 
the specifics to show that he has not been discriminatory in his 
judicial practices. These comments have been checked out by staff and 
found to be accurate.
  Judge Shedd has been criticized for circumventing the authority of 
Congress under the commerce clause in a very celebrated case, United 
States v. Brown, involving the Gun-free School Zones Act. Judge Shedd 
found that it was constitutional and was later reversed by the Supreme 
Court of the United States under United States v. Lopez. In brief, it 
is a complicated subject, but Lopez, the Supreme Court decision of 
1995, curtailed the authority of Congress under the commerce clause.
  Judge Shedd has been said to have limited what Congress can do on 
States' rights. Here is a case where he found congressional authority. 
It was a close case. He was reversed--or later the Supreme Court 
decided he was in error. But I think it illustrates the point that 
Judge Shedd did give latitude for congressional enactments.
  It is my hope that Judge Shedd will not be part of the so-called 
payback theory. I did not like what happened to President Clinton's 
nominations when Republicans controlled the Senate. As the Record will 
show, I supported Judge Roger Gregory for the Fourth Circuit. We have 
had some of the payback consideration on the Fifth Circuit I think 
fairly stated with Judge Pickering, and I hope that will not occur with 
Judge Shedd. It is my hope we will soon have a protocol which will take 
politicization out of judicial selections when there is a Democratic 
President, such as President Clinton, with a Republican Senate. Now the 
shoe is on the other foot, and we have a Republican President, 
President Bush, and a Senate controlled by the Democrats. We ought to 
move away from that.
  As the Record will show, I have supported qualified nominees 
submitted by President Clinton and was pleased to note that there was 
reciprocity. All 11 of Pennsylvania's district court judges have been 
confirmed, as has Judge Brooks Smith, the one contested circuit judge.

                               Exhibit 1

      Response of Judge Dennis Shedd to Senator Specter's Question

       During my June 27, 2002, hearing before the Senate 
     Judiciary Committee, Senator Specter asked me if I believed 
     that the NAACP's opposition to my nomination was fair. I 
     responded that I do not think it is fair. Senator Specter 
     then asked me to provide a written answer explaining my 
     position. I trust that this will be responsive to the 
     Senator's request.
       In lodging its opposition to me, as I understand it, the 
     NAACP has focused on a relatively small number of cases--
     primarily employment discrimination cases--in which the 
     plaintiffs did not prevail. Relying on these cases, and 
     ignoring my complete record, the NAACP has attempted to 
     create the impression that I do not treat civil rights 
     plaintiffs fairly. However, this is a complete 
     mischaracterization of my record as a district judge, and it 
     is based on a very limited--and misleadingly selective--
     sampling of my casework. My complete record as a district 
     judge demonstrates that the charge is not accurate.
       I do not wish to belabor this response with a case-buy-case 
     rebuttal of the employment cases for which, to my knowledge, 
     I have been criticized. Of course, people are entitled to 
     disagree bout the outcome of a particular case depending on 
     their viewpoint. However, as an initial matter, I would note 
     that I have not been made aware of any criticism which 
     suggests that my decisions in these cases are legally 
     incorrect or improper. I do not claim to have been correct on 
     every issue that has come before me, but I can tell you that 
     I have conscientiously endeavored to be correct.
       Moreover, contrary to the misimpression that the NAACP has 
     attempted to create, I have on many occasions denied 
     defendants' motions for summary judgment (or to dismiss) in 
     employment cases. I have done so when a magistrate judge has 
     recommended that I grant the motion, and I have done so over 
     the defendant's vigorous objection. Typically, once a 
     plaintiff defeats a summary judgment motion in this type of 
     case, the case settles, and that has happened often in my 
     cases. However, I have also had employment cases, in which I 
     denied the defendant's motion, thereafter process to verdict. 
     Further, sitting by designation with the Fourth Circuit, I 
     joined with Judge Sam Ervin in reversing a summary judgment 
     and remanding a case in order to allow the employment 
     discrimination plaintiffs to proceed to trial. I believe 
     these examples alone refute the NAACP's criticism of me.
       As I am sure you are aware, an individual's civil rights 
     may be implicated in federal litigation in many contexts 
     outside the realm of employment discrimination. I have been 
     presented with countless cases of various types in which an 
     individual's civil rights were implicated, including (but not 
     limited to) criminal cases, voting rights cases, habeas 
     corpus cases, and cases involving allegations of governmental 
     misconduct of some type. My complete record in these types of 
     cases further reflects the fact that I do not have any type 
     of anti-civil rights bias.
       For example, I have presided over trials in which civil 
     rights plaintiffs have won jury verdicts or gained a 
     settlement at trial. I have granted relief in at least five 
     habeas corpus cases. I ruled in favor of the plaintiff and 
     upheld the one-person/one-vote principle in a case in which 
     the plaintiff challenged the method of electing members to a 
     local school board, and I have handled a number of Voting 
     Rights Act cases in which (to my recollection) the plaintiffs 
     in each case succeeded on their claim of a violation.
       I have always endeavored to be vigilant in ensuring the 
     protection of civil rights in criminal cases as well. I have, 
     for example, granted judgment of acquittal on numerous 
     occasions to defendants where I believed, as a matter of law, 
     that the government failed to meet its burden of proof. I 
     have also disallowed the government from using evidence at 
     trial when I thought that its use would improperly 
     disadvantage the defendant. It is also my practice during 
     trial to ensure very specifically that defendants are aware 
     of their constitutional right to testify or not to testify. 
     Similarly, it is my practice to ensure that witnesses who I 
     believe may incriminate themselves by their testimony are 
     aware of their rights, and I have appointed counsel in some 
     instances to advise these witnesses before they testify.
       I would also note that my overall record in civil cases 
     demonstrates that I do not have any bias against plaintiffs. 
     I have, for example, awarded a bench trial verdict of over 
     $2,000,000 in one case, and over $1,000,000 in another case. 
     In addition, I have presided over jury trials which led to 
     substantial verdicts in a plaintiff's favor, and I have on at 
     least one occasion directed a verdict of liability in a 
     plaintiff's favor. I have also raised, sua sponte, the 
     propriety of the removal of cases from state court, thereby 
     setting in motion the procedure by which the plaintiffs could 
     return to their chosen forum (i.e., state court). I have also 
     assisted parties in civil cases in reaching a settlement, and 
     often this has occurred where it appeared as though the 
     plaintiff would otherwise gain no recovery.
       Apart from my case record, I believe that my commitment to 
     ensuring fairness for all persons is exhibited by my conduct 
     in other matters. For example, I have employed female and 
     African-American law clerks. I have also actively recruited 
     and support minority and female candidates for magistrate 
     judgeships.
       Now in my twelfth year on the district court. I have 
     handled thousands of civil and criminal cases in which I have 
     issued countless rulings, all of which are public record. 
     During this time, my concerted effort has been to ensure that 
     all litigants are treated fairly according to the law. I do 
     not approach any case, or any litigant, with any type of 
     bias, and I do not decide issues before me on anything other 
     than the pertinent law. I am gratified that I have earned a 
     reputation among lawyers in this district (as reported in the 
     Almanac of the Federal Judiciary) for being fair and 
     impartial. I believe my impartiality is reflected by the low 
     number of cases in which I have been reversed, as one could 
     reasonably expect that any type of bias on the part of a 
     district judge would manifest itself over time in appellate 
     response to judge's work.
       I would like to point out an incident that occurred earlier 
     this year, as I believe it is akin to the current accusations 
     against me. On May 3, an article appeared in the Washington 
     Post stating, in essence, that I was insensitive to disabled 
     persons because I would not allow a blind woman to be present 
     in the courtroom during a trial over which I presided. That 
     article was printed without anyone from the newspaper 
     contacting me to verify the allegation, which I readily could 
     have refuted. However, after the article ran, I was able to 
     obtain a transcript of the trail in question, and it very 
     clearly confirmed what I already knew; I had made special 
     efforts to accommodate the woman in question, and I only 
     ordered her to leave the courtroom (as I was required to do 
     by the Federal Rules of Evidence) after the parties 
     identified her as a potential witness and requested that all 
     trial witnesses be sequestered. In other words, the woman was 
     required to leave the courtroom because she was a potential 
     witness, not because she was blind. Fortunately, when the 
     actual facts came to light, the newspaper ran another story 
     setting the record straight.
       I mention this story not as a complaint, but as an example 
     of how a perfectly legitimate set of facts can easily be 
     misused to

[[Page S11283]]

     portray a false impression. I believer that this has occurred 
     in this instance, and I am very appreciative to the Committee 
     for providing me the opportunity to set the record straight 
     about my judicial career.
       In closing, I would add a personal comment. In my life, I 
     have seen first hand the unfair and unequal treatment of 
     disadvantaged people in society. That is one reason I have 
     always cared so deeply for doing my best to treat all people 
     fairly and with respect. Those who know me would emphatically 
     agree that I have an abiding concern for fairness. I believe 
     my record as a judge underscores my dedication to his 
     principle and I will continue to show fairness and respect to 
     all in my judicial actions, as well as in my public and 
     private life.

  Mr. SPECTER. How much time remains, Madam President, of the 10 
minutes?
  The PRESIDING OFFICER. The Senator has 5 minutes 50 seconds.


                           Homeland Security

  Mr. SPECTER. Madam President, we face a very difficult situation on 
homeland security in a number of respects. I spoke last week about my 
concern that there was not sufficient authority in the Secretary to 
direct the intelligence agencies and my concern about the labor-
management provisions. I did not offer amendments because when the 
House of Representatives has, in effect, gone home, if we pass 
amendments, there will have to be a conference and the bill will be 
brought down.
  I believe it is vitally important that homeland security be passed, 
that we move ahead to put all the so-called dots on the screen, as I 
spoke at length on last week. Had all the dots been on the screen, I 
think 9/11 might well have been prevented. I do not accept the 
assertion of CIA Director George Tenet that another 9/11 is inevitable.
  The House-passed bill from last Wednesday, which has come over, is a 
voluminous bill, hundreds of pages long. As we start to consider it, 
there are seven provisions now which Senator Lieberman has sought to 
strike: Provisions on childhood vaccines; protections for qualified 
antiterrorism technologies; the university of homeland security 
advancement, which seems to pinpoint Texas A&M the extended duration 
of the advisory committee; the exemption for FACA; the airport security 
liability protections; the provision on contracting with offshore 
entities, which Senator Wellstone had added, to prohibit the Secretary 
from contracting with inverted domestic corporations.
  All of these provisions, I think, require very extensive 
consideration and analysis. I am very distressed to see them added on 
the bill, with no hearings and no chance for consideration. Now we are 
faced with a homeland security bill which is very heavily weighted with 
provisions which are undesirable. It makes it difficult.

  Candidly, I am not sure how I would vote on all of these provisions 
if they were presented individually. I do think that on a matter of 
this importance, it would have been orderly procedure to have these 
provisions submitted for hearings and consideration. It may well be 
that by the time we add up all of the provisions, the disadvantages may 
well outweigh the advantages of this bill on homeland security.
  Ultimately, the need to have homeland security, to have a Secretary 
who will be able to put all of the investigative agencies under one 
umbrella, is so important that we will have to swallow hard. This is 
really a case where it is a matter of take it or leave it on a bill 
which is undesirable in many aspects, but the importance of protecting 
America from terrorist attacks outweighs so many of these provisions 
which are highly undesirable.
  There is an old expression about not wanting to see either 
legislation or sausage made. This homeland security bill is problemsome 
in so many respects that it is giving sausage a bad name. It goes very 
far. However, it is so important to have a Secretary with authority on 
homeland security to act to protect against terrorism. This bill is 
very weighty and has undesirable aspects, and there are amendments 
which would have improved the bill tremendously.
  I lodge these objections that the procedural posture really of 
legislative blackmail, with the House having gone home, a take-it-or-
leave-it proposition, puts this Senator in a very difficult position. 
Ultimately, I think the necessity for homeland security outweighs these 
disadvantages, but barely.
  I again thank my colleague from West Virginia for arranging this 
sequence, and I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. I yield whatever time he may wish to consume to the 
distinguished Senator from Vermont, Mr. Leahy, with my retaining the 
floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont.
  Mr. LEAHY. Madam President, I thank the distinguished senior Senator 
from West Virginia. He has been my friend for nearly 30 years, and his 
constant courtesy is one of the reasons for it.
  Mr. BYRD. And will be for the next 30.
  Mr. LEAHY. I thank the Senator.


                       Tribute to Emmylou Harris

  Madam President, last week, at the Birchmere Music Hall in 
Alexandria, VA, there was a concert that honored one of the most 
distinguished songwriters and singers I know, Emmylou Harris. Emmylou 
Harris was honored because of the work she has done to aid victims of 
landmines and to help stop the scourge of landmines throughout the 
world. In honoring her, some of the best artists of this country came 
and sang for her. They honored both her work and, of course, they 
honored her amazing talent.

  My wife Marcelle and I, and our daughter Alicia, and Emmylou's 
daughter, mother, and friends were there to hear this. She received the 
award from the Vietnam Veterans of America Foundation, the Patrick 
Leahy Humanitarian Award. I can't think of anything that gave me more 
pleasure than to give it to her.
  I ask unanimous consent that an article from Rolling Stone magazine 
of November 13, 2002, speaking of Emmylou being honored in Washington, 
DC, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     [Rolling Stone, Nov. 13, 2002]

                        Emmylou Honored in D.C.

                          (By Lynne Margolis)


     musicians, politicians praise harris for landmine charity work

       When Senator Patrick J. Leahy presented singer-songwriter 
     Emmylou Harris with his namesake humanitarian award Tuesday 
     night at the Birchmere Music Hall in Alexandria, Virginia, he 
     said her work on behalf of landmine victims might have 
     touched more lives--in more important ways--than her vast 
     body of beloved music.
       Harris, who received the award from the Vietnam Veterans of 
     America Foundation for her creation and continued support of 
     the Concerts for a Landmine Free World benefits, said it 
     merely represented how blessed she is to be able ``to give 
     something back'' in exchange for a career that brings her so 
     much joy that ``you really can't call it work.''
       Harris seemed even more humbled than usual by the shower of 
     accolades from Leahy, VVAF president Bobby Muller and some of 
     her closest musical friends including Steve Earle, Buddy and 
     Julie Miller, Patty Griffin, Nanci Griffith, Guy Clark, 
     Rodney Crowell, John Prine and Jamie O'Hara, all of whom 
     performed at the benefit concert. Pal Mary Chapin Carpenter 
     was unable to attend because of back problems, but sent 
     flowers that adorned the stage of the intimate, 500-seat 
     venue. Most of the artists had participated in earlier 
     Landmine Free World concert tours and, like Harris, have 
     visited countries devastated by landmines that still remain 
     years after military conflicts have ended. Leahy has 
     spearheaded efforts for a global landmine ban; VVAF aids 
     civilian victims of those conflicts.
       During a night that focused on the purest of musical 
     elements--lyrics, wooden guitars, and frequently, Harris' 
     angelic soprano soaring in harmony with her equally talented 
     friends--she gave as much praise to her fellow activists and 
     performers as they did to her.
       ``Really what I have done has been given the opportunity to 
     reflect, or deflect, some of the light that shines on me 
     because of the nature of my work, and shine it on these 
     people, these causes, these situations,'' she said backstage.
       ``I'm so, so grateful for the opportunity to be able to do 
     that. Because that's the only way I know to be really 
     thankful for my blessings. This is a really wonderful moment 
     for me. And I'm so grateful to all my fantastic friends who 
     made it possible.''
       The night contained a few overtly political references or 
     anti-war proselytizing, though Prine performed ``Your Flag 
     Decal Won't Get You Into Heaven'' and his 1970 tearjerker 
     gem, ``Hello in There,'' with its reference to parents who 
     lost a son in Korea. Harris noted that her father was a World 
     War II veteran and Korean War POW, and that the show was 
     occurring one day after Veterans Day as well as the twentieth 
     anniversary of the Vietnam Veterans Memorial dedication. She 
     talked about playing at the memorial's fifteenth

[[Page S11284]]

     anniversary five years ago and how listening to O'Hara sing 
     his ``50,000 Names'' was ``the most cathartic experience I've 
     ever had in my career.'' As he performed the tune again, 
     sniffles could be heard in the audience. Later, at Harris' 
     request, Earle did ``a song about faith,'' the title track 
     from his new album, Jerusalem.
       Earlier, Leahy cracked that everybody in Washington was in 
     the room except U.S. Attorney General John Ashcroft, who 
     ``listens to Steve Earle all the time.'' The outspoken Earle 
     has made his anti-war and anti-death penalty views well known 
     in Washington.
       Harris noted that ``Jerusalem'' provided a necessary note 
     of hope, adding ``we're in a very difficult time right now.'' 
     Backstage she said, ``I don't know whether [war is] 
     inevitable or not. Certainly, the world is gonna change in 
     some way pretty soon. I can't see the status quo staying the 
     same.''
       But this was a night for positivity and humor, despite the 
     profusion of sad love songs and achingly beautiful hormonies 
     delivered on tunes such as Harris' ``Prayer in Open D'' 
     (performed by the Millers as ``Prayer in D'' because, Buddy 
     explained, ``I can't play an open D'').
       For the encore, Harris brought out John Starling and Mike 
     Auldrige, original members of the D.C.-area bluegrass band 
     the Seldom Scene, for the Louvin Brothers' classic ``Satan's 
     Jeweled Crown,'' which she recorded on Elite Hotel.
       The evening was probably best represented by comments 
     delivered by Leahy. ``There are people in Southeast Asia, in 
     Africa, in Central America, around the world, who are going 
     to be helped by what you have done,'' he said. ``They will 
     never know you, they'll never hear your songs, they'll never 
     know your fame. They'll never be able to do anything to help 
     you, but because you've helped them, their lives are 
     immeasurably better. And how many people in life can say 
     that?''
  Mr. LEAHY. I yield the floor, and I thank the Senator from West 
Virginia.
  The PRESIDING OFFICER (Mr. Dayton). The Senator from West Virginia.
  Mr. BYRD. The distinguished Senator from Vermont is welcome, and I 
congratulate him.

                          ____________________