[Congressional Record Volume 148, Number 150 (Tuesday, November 19, 2002)]
[Senate]
[Pages S11512-S11522]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF DENNIS W. SHEDD, OF SOUTH CAROLINA, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to vote on the Shedd nomination.
The majority leader.
Mr. DASCHLE. Mr. President, let me remind my colleagues that the
votes from here on out will be 10 minutes in length. And I intend to
cut off the votes at 10 minutes. I hope everybody will stay on the
floor and cast their votes so we can complete our work at a reasonable
hour.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read the nomination of Dennis W.
Shedd, of South Carolina, to be United States Circuit Judge for the
Fourth Circuit.
Mr. KENNEDY. Mr. President, I oppose the confirmation of Judge Shedd
to the Court of Appeals for the Fourth Circuit. His nomination is also
opposed by a large number of individuals, law professors, bar
association and civil rights groups across the country, because he has
not shown the commitment to the protection and vindication of Federal
rights that is essential for this high position in the judiciary.
Judge Shedd has an unacceptable record in cases involving race and
gender discrimination. In race discrimination cases, for example, he
consistently grants summary judgment against African-American civil
rights plaintiffs, preventing even close cases from reaching a jury,
and he often does so with little or analysis. In one case, he granted
summary judgment for the defendant after the EEOC determined there was
a reasonable cause to find that the plaintiff was denied promotion and
the denial was based on race. In another case, the plaintiff was denied
a pay increase despite the recommendation of his immediate supervisor,
where the employer was found by the State to have been discriminating
against African-Americans on pay increases.
Judge Shedd has a similar record in gender discrimination cases. He
granted summary judgment for an employer in a sexual harassment case in
which the male supervisor's conduct was so inappropriate that Judge
Shedd himself stated that the supervisor's conduct was ``sufficiently
severe and pervasive to constituent a hostile work environment.''
Nonetheless, Judge Shedd granted summary judgment for the employer,
finding no evidence that the plaintiff herself thought the work
environment had been hostile. This ruling is impossible to reconcile
with the facts of the case--the plaintiff had told her supervisor that
his comments were offensive, she had reported the conduct to her
supervisor, she had taken concrete steps to pursue the complaint, and
she eventually quit her position.
In another case, Judge Shedd reversed a magistrate judge's decision
to deny summary judgment for an employer. In this case, the plaintiff's
supervisor had harassed both the plaintiff and a number of other female
employees. Yet Judge Shedd dismissed this case, against the
recommendation of the magistrate, because the plaintiff had complained
to two different people, a supervisor and the company's chief financial
officer, but did not complain to the president of the company, as
required by company policy. Judge Shedd ignored the fact that the
company's policy also called for the supervisor and the CFO themselves
to report the plaintiff's complaints to the president, which they
failed to do. Judge Shedd also relied on the fact that the plaintiff's
complaint referred to ``harassment,'' instead of ``sexual harassment.''
These were not merely cases in which Judge Shedd ultimately decided
on the facts that discrimination had not taken place. These are cases
in which he determined that the jury should not even be permitted to
hear the plaintiff's claim. Judge Shedd dismissed the vast majority of
race discrimination cases brought by African-Americans, before those
cases could reach the jury. By contrast, in the five discrimination
cases brought by white males, Judge Shedd allowed four to go to a
trial. This pattern is very disturbing. The people of the Fourth
Circuit deserve better from their Federal judges.
In addition, Judge Shedd has often reached out from the bench to
affect the litigation of the cases before him. In discrimination cases,
he is known to raise arguments on behalf of the defense from the bench,
even arguments not raised by the defendants themselves. He has gone so
far as to dismiss cases on grounds not raised by the defendant. In one
case, he initiated an inquiry into finances of an unemployed woman who
had been granted pauper status by another Federal judge; Judge Shedd
ruled that she did not deserve such status, in large part because of
the money she had spent pursuing her claim, and recommended that the
Fourth Circuit dismiss an appeal the woman had pending in a different
suit. He published his conclusions, he said, because other judges may
want to know of his personal findings shout this woman.
The States of the Fourth Circuit have a large minority population,
the highest percentage of African-Africans of any circuit in the
country, and they deserve a fair judiciary, committed to protecting
basic rights.
For all of these reasons, I oppose this nomination. the
administration can, and must, do better for the people of the Fourth
Circuit.
u.s. circuit court nominees
Mrs. MURRAY. Mr. President, I rise to express my opposition to the
confirmation of Judge Dennis Shedd to the United States Court of
Appeals for the Fourth Circuit, and the confirmation of Professor
Michael McConnell to the United States Court of Appeals for the Tenth
Circuit.
At every level of the Federal court system, federal judges have a
tremendous impact on the rights and protections of all Americans. The
federal judiciary effectively ended segregation and ensured a woman's
right to reproductive choice. Every day we count on federal judges to
protect our civil rights and liberties.
The Senate serves as the only effective check on the Federal
judiciary. The Constitution gives the Senate the power to advise and
consent to the President's judicial appointments. These are lifetime
appointments. Furthermore, because the U.S. Supreme Court hears only a
few cases, the Circuit Courts of Appeals are often the courts of last
resort for citizens seeking justice from the federal bench. As
Senators, we have a constitutional responsibility to evaluate these
candidates.
I believe judicial candidates should be experienced, even-handed,
possess a fair judicial temperament, and be committed to upholding the
rights and liberties of all Americans.
Dennis Shedd does not meet that standard. He has failed to show this
Senator that he possesses the characteristics necessary to receive a
lifetime appointment to the Circuit Court of Appeals.
As a Federal District Court Judge, Shedd's rulings and actions on the
bench indicate he lacks the even-handedness we expect from our federal
judges. He has consistently sided with employers in workplace
discrimination suits on issues ranging from sexual harassment to race
and age discrimination. In fact, in his 11 years on the Federal bench
not a single plaintiff in a civil rights or employment discrimination
case has prevailed in his courtroom.
His willingness to inject his own personal bias about the rights of
individuals shows he also lacks the requisite judicial temperament we
should require in a Federal judge. He has shown hostility to those
seeking justice from the bench by assisting the defense and granting
summary judgment for the defense in a disproportionate number of cases.
Aside from employee rights and discrimination cases, he has also
shown an unwillingness to uphold the basic civil liberties and rights
of all Americans. He has favored a state government's ability to
violate an individual's right of privacy by selling their personal
information despite a federal law to the contrary. He also struck down
part of the Family and Medical Leave Act, FMLA, by arguing a State
cannot be sued under FMLA due to sovereign immunity.
He has further shown a disregard for protecting the rights of voters,
and has displayed an insensitivity on issues concerning race.
Considering his history of narrowly interpreting the rights of
individuals
[[Page S11513]]
and his hostility toward civil liberty protections, we can only assume
he would not uphold the civil liberty of privacy, including honoring
the Roe v. Wade decision. In fact, at his confirmation hearing he
refused to commit to upholding the fundamental right of reproductive
freedom.
Dennis Shedd's record clearly illustrates he is not even-handed, that
he lacks the right temperament for the appeals bench, and that he has
consistently failed to protect the rights and liberties of our people.
He should not be confirmed for the Federal appeals court. I urge my
colleagues to vote against this nomination.
I would also like to express my opposition to Professor Michael
McConnell's recent confirmation to the United States Court of Appeals
for the Tenth Circuit.
Professor McConnell has consistently expressed strong opposition to
protecting civil rights and liberties, going so far as to call the Roe
case ``a gross misinterpretation of the Constitution.'' He has also
argued, contrary to existing law, that abortion protestors have a
``constitutional right to protect against abortion--forcefully and
face-to-face.''
He holds extreme opinions on the separation of church and state and
other key civil rights protections. Professor McConnell has severely
criticized the Supreme Court's 8 to 1 decision in Bob Jones University
v. United States. In that case, the Supreme Court held that the IRS may
deny tax-exempt status to a religious school with racially
discriminatory policies. Professor McConnell wrote that the racial
discriminatory practices at Bob Jones University should be tolerated
because they were religious in nature. He has also argued for giving
religious institutions preferential treatment and has advocated direct
federal funding of religious institutions. Clearly, Professor
McConnell's opinion on the separation of church and state strays far
from the mainstream and far from generally recognized conservative
legal analysis.
Finally, Professor McConnell has argued for weakening both statutory
and constitutional protections against discrimination based on race,
gender, and sexual orientation through exemptions for private entities.
Like Judge Shedd, I believe Professor McConnell lacks the basic
qualities needed to serve on the Federal appellate bench.
Mr. LEVIN. Mr. President, I will vote against the confirmation of
Dennis Shedd to be a United States Judge for the 4th Circuit Court of
Appeals. Judge Shedd's record as a judge on the United States District
Court raises a number of concerns about both his approach on the bench
and his commitment to equal justice--leading me to the conclusion that
he should not be promoted to the second highest court in the land.
Of particular concern to me are Judge Shedd's extreme view on the
limits of Congressional authority and his record of hostility to
plaintiffs in civil rights and employment discrimination cases. This
combination is extremely dangerous given the critical role that
Congress plays in passing laws to ensure that Constitutional
protections are afforded to all Americans. Further, I am troubled by
what appears to be a lack of thorough consideration in Judge Shedd's
approach. This is particularly unsettling given the significant
Constitutional issues that have been at stake in his courtroom.
With respect to Judge Shedd's view of the Constitutional role of the
Congress, two cases stand out, Condon v. Reno and Crosby v. South
Carolina.
I voted for, and Congress enacted, the Drivers Privacy Protection Act
in 1994 to limit the availability of personal information--such as
photographs, social security numbers, addresses and telephone numbers,
and even some medical information--contained in motor vehicle records.
In Condon v. Reno, the state of South Carolina challenged the law,
claiming that it was an unconstitutional infringement on the state's
rights because it restricted South Carolina from setting its own
standards for releasing State motor vehicle records. In Condon v. Reno,
Judge Shedd ruled that the law was unconstitutional and in the process
endorsed a view that--if permitted to stand--would have severely
limited Congress ability to legislate under the Commerce clause of the
Constitution. Judge Shedd's decision endorsed a view of congressional
authority so far out of the mainstream that the Supreme Court ruled
unanimously to overturn him in a decision written by Chief Justice
Rehnquist.
Judge Shedd's decision in Crosby v. South Carolina Department of
Health and Environmental Control also deeply troubles me. In Crosby,
Judge Shedd adopted a magistrate's recommendation granting defendant's
summary judgement--agreeing with the magistrate that the 11th Amendment
doctrine of state sovereign immunity should prevent the plaintiff from
suing the state for violation of the Family and Medical Leave Act
because he believed that Act was an improper exercise of Congress's
enforcement power under the 14th amendment. Despite the obvious and
profound implications of this decision for Congress's authority, Judge
Shedd offered virtually no analysis to support his decision. This is
despite the absence of directly controlling precedent and the presence
of a split among other Federal district courts on the issue. Acts of
Congress are entitled to a presumption of Constitutionality. Ruling to
overturn a Federal law should not be taken lightly. In a case of this
import, Judge Shedd's failure to articulate a rationale for his
decision is deeply disturbing. The fact that other judges may have
reached the same conclusion as Judge Shedd is not the point here.
Parties before the court on an issues of this magnitude are entitled to
a judge's reasoning. Judge Shedd offered none.
The Crosby decision is not the only example of Judge Shedd's tendency
to accept magistrate recommendations with little or no comment on
important matters. In South Carolina, all cases under Title VII of the
Civil Rights Act of 1964 are automatically referred to magistrates for
pretrial matters. In important employment discrimination cases, Judge
Shedd has often adopted magistrates' recommendations in favor of
summary judgement. And he has done so without comment in many instances
where it appears to me that comment was warranted. In fact, Judge Shedd
has done so in cases where a party has raised an objection to one of
the magistrate's recommendations and he was required to conduct a de
novo review. In a number of these cases, Judge Shedd's rulings do not
address the objections at all. Instead, his decisions simply adopt the
magistrate's recommendations and pay lip service to his obligation by
including a statement that he has conducted the required de novo
review. Given the concerns I have about this approach in the Crosby
case, this practice deeply concerns me.
Mr. President, nothing is more important for a judge than a
commitment to equal justice. A review of Judge Shedd's record also
raises the question whether this ideal is being upheld.
In a number of civil rights cases, Judge Shedd appears to have
intervened in a manner that has tilted toward defendants. He has
granted summary judgement for defendants on grounds not even raised by
the defendants. He has ordered a defendant to file a motion to dismiss
a case and later granted the motion. And Judge Shedd even granted
summary judgment against a petitioner even though it appears that the
defendant never filed a motion for summary judgement. These decisions
raise serious questions about whether plaintiffs are getting a fair
hearing in Judge Shedd's courtroom.
I was particularly struck by the Judge's answer to a question from
Senator Edwards in his Judiciary Committee hearing earlier this year.
Senator Edwards asked Judge Shedd whether he had ever granted relief to
a plaintiff in an employment discrimination case. Judge Shedd could not
recall a single instance where a plaintiff alleging employment
discrimination was granted relief in his courtroom. Judge Shedd's
inability to recall such a case is actually not surprising as a review
of his published opinions failed to reveal even one such instance.
Eleven years on the bench and not one of his published opinions
reflects a favorable ruling for an employee in a discrimination case.
Mr. President, I'm afraid Judge Shedd's record simply does not
support his promotion to the 4th Circuit Court of Appeals.
Mr. KERRY. Mr. President, I rise today to voice my strong opposition
to
[[Page S11514]]
the nomination of Dennis Shedd to the Fourth Circuit Court of Appeals.
Although the President has pledged to nominate qualified individuals
with outstanding judicial records to the Federal Court System, he has,
time and time again, failed to make good on that pledge. Judge Shedd is
no exception. During his tenure as a trial judge, Judge Shedd has
exhibited extreme, even radical views on an array of important issues.
Judge Shedd's record demonstrates that in cases involving civil rights,
privacy, discrimination and federalism, he is willing to cross the
boundaries of established case law and rule in a manner that is out of
touch with mainstream thinking.
A few cases in particular merit the attention of this body. In a case
demonstrating Judge Shedd's extreme stance on federalism, he struck
down as unconstitutional the Driver's Privacy Protection Act, which we
passed to ensure that states keep drivers' license information
confidential. This legislation, designed as ``antistalking''
legislation, was drafted in part because antiabortion activists have
used accessible drivers' license information to obtain the addresses of
doctors who performed abortions in order to post that information on
websites. Mr. President, this case was reversed unanimously by the
Supreme Court, with Chief Justice Rehnquist authoring the opinion.
Judge Shedd also has a record of condoning serious civil liberties
violations by law enforcement. In one particularly disturbing case,
Judge Shedd dismissed a lawsuit brought against a corrections officer
who had stripped an inmate naked and left him without bedding for 48
hours after the inmate confessed to not knowing the prison's rules
concerning lights out. In dismissing the case, Judge Shedd merely
stated that he did not think the inmate had been punished. In another
instance, he imposed an inconsequential $250 fine in a case where a
sheriff and a prosecutor secretly videotaped a jailhouse conversation
between a defendant and his lawyer. Judge Shedd defended the penalty
stating that he did not think the pair committed any civil rights
violation. I am deeply troubled that we might appoint a judge who does
not recognize the blatant civil rights violation in this circumstance.
Perhaps most troubling is Judge Shedd's overwhelming tendency to
grant summary judgement against plaintiffs in race and gender
employment discrimination cases, preventing the vast majority of such
cases from going to trial. In a case involving sexual harassment in the
workplace, Judge Shedd reversed the recommendation of a magistrate that
the plaintiff be allowed to present her case to a jury, granting
summary judgment for the employer even though Judge Shedd himself
concluded that the supervisor's conduct ``clearly was, from an
objective standpoint, sufficiently severe and pervasive to constitute a
hostile work environment.'' He relied, therefore, on a tortured
interpretation of both the facts and the law to rule against the
plaintiff in that case. This is one of many instances that demonstrate
a clear pattern in which Judge Shedd has prevented cases brought by
people of color and women from ever reaching a jury.
We routinely put aside our partisan differences to send qualified men
and women to the federal bench because it is in the best interests of
our country to fill seats with those individuals who have pledged to
interpret the law objectively and without bias, whether or not they
happen to be liberal or conservative in temperament. We place a great
deal of trust in these men and women, as their appointments are
guaranteed for life. Unfortunately, based on the records and statements
I have reviewed, I do not believe we can place our trust in Judge Shedd
to protect the civil liberties Americans of all races and beliefs have
fought so hard to win. It is because of this that I will vote against
his nomination.
Mr. EDWARDS. Mr. President, every judicial nomination that comes
before this body is critically important. However, I take a particular
interest in appointments to the Fourth Circuit, which includes my home
State of North Carolina. The Fourth Circuit needs qualified, fair-
minded judges who will put aside their personal views and follow the
law. After reviewing his record carefully, I have concluded that Judge
Dennis Shedd is not such a judge.
While Judge Shedd's record provides numerous reasons to oppose his
confirmation, I am most troubled by his poor record on civil rights,
where he has demonstrated an alarming propensity for putting his
personal views above the law. Judge Shedd has repeatedly overstepped
the bounds of judicial restraint and engaged in judicial activism on
behalf of defendants in discrimination cases.
I raised this concern with Judge Shedd earlier this year during his
confirmation hearing before the Judiciary Committee. Judge Shedd could
not point to one instance in his eleven years on the bench in which an
individual alleging discrimination--based on race, sex, age or
disability--has ever won a case in his court. In the same period, there
have been over 20 verdicts in favor of plaintiffs in other Federal
courts in the State. In written questions, I asked Judge Shedd to say
whether a victim of employment discrimination had ever prevailed in his
courtroom. He could name no such case.
On the other hand, there is considerable and disturbing evidence of
Judge Shedd's conduct in civil rights cases to benefit the defendant.
To name only one example: in a sexual harassment matter, Judge Shedd
overruled a magistrate's ruling allowing a case to go to trial, even
though the plaintiff had offered sworn evidence that her supervisor had
commented on her breasts, asked her graphic sexual questions, bought
her panty-less pantyhose, and frequently stood behind her, rubbed her
shoulders while trying to look down her shirt, and so on.
Finally, in a major case involving the Federal Government's power to
protect the privacy of individuals' personal records, Judge Shedd sided
against individual rights, and was reversed by a unanimous Supreme
Court. There is no other case since 1995 in which a lower court has
limited Congress's power and the Supreme Court has reversed.
Federal judges have no responsibility more important than enforcing
our laws equally. Because Judge Shedd has proven his willingness to put
his personal views above the law, especially in civil rights cases, I
must vote against his confirmation.
I ask unanimous consent that a letter I received from a group of 16
North Carolina law professors addressing these and several other of
Judge Shedd's decisions be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
June 12, 2002.
Hon. John R. Edwards,
U.S. Senate, Dirksen Office Building,
Washington, DC.
Dear Senator Edwards: We are writing to you--as individual
members of the faculties of the School of Law of the
University of North Carolina, Duke Law School, and North
Carolina Central University School of Law--concerned that the
Senate Judiciary Committee may be poised to act without
conducting a full investigation of President Bush's recent
nominee to the United States Court of Appeals for the Fourth
Circuit, United States District Judge Dennis W. Shedd. We
suggest that to act precipitously on this important
nomination would be a serious mistake.
As you know, the Fourth Circuit is one of the region's most
influential governmental bodies; its impact on
constitutional, statutory, and regulatory issues in the
Southeast has no equal apart from the Supreme Court itself.
Moreover, a wide range of responsible observers concur that
during the past decade the Fourth Circuit has become the most
activist federal court in the nation. In certain crucial
areas, including federal judicial efforts to confine Congress
in the exercise of its traditionally broad national powers,
the Fourth Circuit has no peer. It has led the way in
attempting to narrow the Congress's Commerce Clause powers,
see, e.g., Condon v. Reno, 155 F.3d 453 (4th Cir. 1998),
rev'd, 528 U.S. 141 (2000) (challenging Congress's authority
under the Commerce Clause to enact the Driver's Privacy
Protection Act); Brzonkala v. Virginia Polytechnic Inst., 169
F.3d 820 (4th Cir. 1999) (en banc), aff'd United States v.
Morrison, 529 U.S. 598 (2000) (challenging Congress's
authority under the Commerce Clause to enact the Violence
Against Women Act), its Section 5 powers under the Fourteenth
Amendment, see, e.g., Brzonkala, 169 F.3d 820 (4th Cir. 1999)
(en banc) (challenging Congress's authority under Section 5),
and in promulgating aggressive conceptions of the Tenth and
Eleventh Amendments. See South Carolina State Ports Authority
v. Federal Maritime Comm'n 243 F.3d 165 (4th Cir. 2001),
aff'd 122 S. Ct. 1864 (2002) (invalidating the FMC's
authority over state port entities, previously
[[Page S11515]]
granted by Congress under the Shipping Act of 1984, 46
U.S.C. Sec. Sec. 1701 et seq., on Eleventh Amendment
grounds).
As a federal district judge during the past eleven years,
Judge Shedd has been a sympathetic participant in this
judicial campaign to disempower Congress. He authored the
original decision in Condon v. Reno, 972 F. Supp. 977 (D.
S.C. 1997), and struck down the Driver's Privacy Protection
Act of 1994, 18 U.S.C. Sec. Sec. 2721-25, a decision later
overturned in a 9-to-0 decision of the Supreme Court authored
by Chief Justice Rehnquist. Judge Shedd also acted to
invalidate the application of the Family and Medical Leave
Act to state agencies, holding that ``Congress did not
properly enact the FMLA under Sec. 5 of the fourteenth
amendment, and therefore, has not abrogated [the State
defendant's] eleventh amendment immunity from suit.'' Crosby
v. South Carolina Dep't of Health & Environmental Control,
C.A. No. 3-97-3588119BD, at 1 (D. S.C. Oct. 14, 1999).
Were Judge Shedd's highly protective views of state
sovereignty, his skepticism about Congressional power, and
his aggressive use of judicial authority the only issues
presented by his nomination, they would suffice to require
careful Senate consideration. However, we are concerned by
three other features of his record: (1) an apparent
skepticism of federal civil rights claims; (2) a marked
sympathy for employers in employment disputes; and (3) an
unusually vigorous use of Rule 56 of the Federal Rules (the
summary judgment provision) and similar procedural provisions
to wrest lawsuits from trial juries and end them by judicial
fiat.
We are not prepared to say, at this point, that Judge Shedd
has acted with bias in these areas, since so many of his
decisions are unreported (and we have not been able to review
the briefs in these cases) and since an unusual number of his
reported decisions are merely brief orders that accept and
adopt relatively summary reports from United States
Magistrates. However, in some sixty-six cases that presently
appear in the LEXIS online system, we note the following
patterns. Judge Shedd appears never to have granted relief to
a plaintiff in an employment discrimination case, although he
has granted numerous summary judgment motions in favor of
employers. See, e.g., Roberts v. Defender Services, Inc.,
C.A. No. 0:00-1536-19BC (D.S.C., Sept 27, 2001) (rejecting a
female employee's sexual harassment and hostile work
environment claims); Austin v. FN Manufacturing, Inc., C.A.
No. 3:98-3605-19BC (D.S.C., March 23, 2000) (rejecting an
African American employee's racial discrimination, hostile
environment, and constructive discharge claims); Taylor v.
Cummings Atlantic, Inc., 852 F. Supp. 1279 (D.S.C. 1994)
(rejecting an older employee's age discrimination, fraud, and
breach of contract claims); (Bailey v. South Carolina Dep't
of Social Services, 851 F. Supp. 219 (D.S.C. 1993) (rejecting
an African American employee's non-promotion claim, although
backed by EEOC Determination of reasonable cause that
plaintiff was not promoted because of his race); White v.
Roche Biomedical Laboratories, Inc., 807 F. Supp. 1212
(D.S.C. 1992) (rejecting an employee's breach of contract and
promissory estoppel claims).
In the Roberts case, for example, Judge Shedd granted
summary judgment to an employer in a sexual harassment
lawsuit, even after he noted that ``the alleged conduct [of
Ms. Robert's supervisor] clearly was, from an objective
standpoint, sufficiently severe and pervasive to constitute a
hostile and abusive work environment.'' Roberts, supra, at 2.
Judge Shedd concluded, nonetheless, that plaintiff Rogers
raised no genuine issue of fact about whether she herself
``subjectively perceived the environment to be abusive,''
id., although it was undisputed that she had joined in making
a formal complaint about her supervisor's abusive behavior to
corporate headquarters, and then met with a corporate
investigator to detail and protest the supervisor's sexually
suggestive behavior.
We have also obtained a list of unpublished fifty-three
federal race, gender, age, and disability cases in which
Judge Shedd has dealt with cases on summary judgment. In
most, he has granted defendants' motions and dismissed the
cases, denying all relief to the plaintiffs. Since these
cases are not reported, we have not yet been able to review
them to discern whether they manifest bias, but the overall
anti-plaintiff pattern is troubling.
The tendency by Judge Shedd to resolve cases on his own,
short of trial, is also manifest in his use of Rule 56
summary judgment in other, non-employment contexts, see,
e.g., Alston v. Ruston, C.A. No.: 9-99-244-19RB, 2000 U.S.
Dist. LEXIS 11939 (D.S.C. March 9, 2000) (prisoner's Section
1983 and Eighth Amendment claim); Joye v. Richland County
Sheriff's Dep't, 47 F. Supp. 2d 663 (D.S.C. 1999) (Section
1983 and Fourth Amendment, false arrest claim); Cianbro Corp.
v. Jeffcoat & Martin, 804 F. Supp. 784 (D.S.C. 1992)
(attorney malpractice action), and by the use of other
procedural devices, such as Rule 12(b)(6) motions to dismiss,
see, e.g., Gray v. Petoseed Co., 985 F. Supp. 625 (D.S.C.
1996) (fraud in sale of contaminated watermelon seeds), as
well as by use of Rule 50 motions to grant judgment
notwithstanding the verdict, see, e.g., Storms v. Goodyear
Tire & Rubber Co., 775 F. Supp. 862 (D.S.C. 1991) (wrongful
discharge and breach of implied contract); Wilds v. Slater,
C.A. No. 3:97-1608-19BD, 2000 U.S. Dist. LEXIS 20771 (D.S.C.
March 7, 2000) (National Environmental Policy Act action for
failure to file environmental impact statement).
In Alston, for example, Judge Shedd granted summary
judgment on a Section 1983 complaint after somehow
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
other officers intervened. We do not, of course, know whether
the plaintiff's version of these facts is correct or,
instead, whether the correctional officer's version should be
credited; we do believe it is impossible fairly to conclude
that the conflicting evidence of record about what happened
that evening raised no ``genuine issue of material fact.''
In another such case, 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 man aged 31, standing
5'11'' (while the plaintiff was 61 years old and stood
only 5'8''), despite plaintiff's allegations that the
arresting officers ``refused to inform him of the basis
for his arrest or provide him with a copy of the
warrant,'' despite the fact that ``the warrant . . .
listed the driver's license of [the proper suspect]''
which ``differ[ed] from plaintiff's driver's license
number,'' Judge Shedd granted summary judgment on the
grounds that the defendants had ``a reasonable, good faith
belief that they were arresting the correct person'' He
thereby rejected, as a matter of law, the contrary
conclusion of a United States magistrate that the officers
were not entitled to a ``good faith'' defense on these
facts since ``[a] simple check of the bench warrant should
have revealed that Joye was not the person wanted.'' Joye,
47 F. Supp. 2d at 665-66.
Judge Shedd also appears to be willing to interject himself
in unusual ways into ongoing judicial proceedings. In one
case, Maytag Corp. v. Clarkson, 875 F. Supp. 324 (D.S.C.
1995), he went out of his way to draft and publish an opinion
castigating a lawyer for making a closing argument urging the
jury to decide a case on its notion of ``what is right and .
. . what is moral and . . . what is just.'' Judge Shedd had
submitted the case to the jury on a special verdict--limited
to the question whether the defendant was liable to the
plaintiff under a written guarantee--and although plaintiff's
attorneys made no objection to the defendant's closing
argument (and although the jury subsequently returned a
verdict for the plaintiff), Judge Shedd felt the need to
publish an opinion declaring that the defendant's appeal to
morality, decency, and justice--what the Court termed the
sympathy of the jury--was inappropriate: ``Therefore, while
this matter is now closed, this Order should serve as a
reminder to all counsel that arguments of the type addressed
herein are improper and will not be tolerated in this
Court.'' 875 F. Supp. at 330.
In yet another such example, Judge Shedd initiated, sua
sponte, an inquiry into the finances of an unemployed party,
living with her mother, who had been granted in forma
pauperis status by another federal judge and whose case was
already pending on appeal in the Fourth Circuit. Assaad-
Faltas v. University of South Carolina, 971 F. Supp. 985
(D.S.C. 1997). Based on ``the prolific litigiousness in which
she has engaged,'' id. at 986--specifically citing her use of
a telephone to make long-distance telephone calls to the
Fourth Circuit and her use of her mother's automobile ``to
travel to the courthouse on a regular basis,'' as well as her
practice of ``flood[ing] the Court and opposing counsel with
numerous legal filings, many of which contain multiple pages
and/or exhibits''--Judge Shedd revoked her in forma pauperis
status and recommended that the Fourth Circuit dismiss her
pending appeal, concluding that these acts were ``certainly
indicative of the fact that she has financial resources
available to her to fund this litigation.'' Id. at 988.
In our considered judgment, these cases suffice to raise
red flags that should require the Senate Judiciary Committee
to proceed only after the most careful review of Judge
Shedd's full judicial record--most of which has only become
available for consideration in the past few days. The Fourth
Circuit does not, in our view, need another federal appellate
judge who would constrain the authority of Congress in the
21st century by resort to outdated and reactionary views
of federal power. It does not need a federal judge who
would be hostile to African Americans, to women, to the
aged, or to the disabled who bring serious claims of
employment discrimination or other forms of discrimination
prohibited by federal laws or the Constitution. It does
not need a federal judge who would reflexively side with
management against labor, with employers against
employees. Nor does it need a federal judge who is
dismissive of the precious right to trial by jury, cutting
short legitimate factual disputes that, under the Seventh
Amendment, properly belong to federal juries.
Sincerely,
John Charles Boger, Lissa L. Broome, Kenneth S. Broun,
John O. Calmore, Charles E. Daye, Eugene Gressman, Ann
Hubbard, Daniel H. Pollitt, Marilyn V. Yarbrough,
Professors of Law, UNC-Chapel Hill, School of Law.
Christopher H. Schroeder, Jerome Culp, Professors of Law,
Duke University, School of Law.
[[Page S11516]]
Renee F. Hill, David A. Green, Irving Joyner, Nichelle J.
Perry, Fred J. Williams, Professors of Law, North
Carolina Central, University School of Law.
One final note. The Fourth Circuit, as you know, presently
is comprised of eleven judges, and there are four pending
vacancies. Although North Carolina is the largest State
within the Circuit, it has no current representation on the
Circuit at all, and has had none since 1999, despite a
federal statute that requires that ``in each circuit, there
shall be at least one circuit judge in regular active service
appointed from the residents of each state in the circuit.''
28 U.S.C. Sec. 44.
South Carolina, the state in which Judge Shedd currently
sits, has three judges currently on the Fourth Circuit. Judge
Shedd's elevation would constitute the fourth. We respect our
sister state, of course, yet we do not understand why, with a
population less than half of North Carolina's, it should
receive its fourth active judge while North Carolina
languishes without a single sitting representative, and with
only two seats even authorized.
Mr. DASCHLE. Mr. President, the Senate has confirmed 99 judicial
nominees during the 107th Congress--all of which have occurred since
Democrats assumed the majority. Democrats have also confirmed more
circuit court nominees than Republicans did any of their prior six
years of control. Today we are considering the nomination of Judge
Shedd for the Fourth Circuit.
There has been much discussion over Judge Shedd's nomination, and I
understand the Judiciary Committee has received hundreds of letters
from individuals and organizations expressing concern over elevating
Judge Shedd. While his nomination was reported out of the committee
last week, there was considerable debate and many members raised
serious concerns. I am troubled by allegations that Judge Shedd has a
pattern of injecting his personal opinions into the proceedings before
him, including--ordering defendants to make motions for summary
judgment, and deciding on issues before they are raised.
I am also concerned about allegations that individuals raising
employment discrimination claims before him are unable to receive a
fair and impartial forum. I understand that through questioning by the
Judiciary Committee, it was uncovered that Judge Shedd could not think
of a single plaintiff in a civil rights or employment discrimination
case who had prevailed in his courtroom--in fact, Judge Shedd has never
granted substantive relief to a plaintiff in an employment
discrimination case.
I am also concerned about his extreme views of the constitutional
allocation of powers between the States and the federal government--
views that are not shared even by the current conservative Rehnquist
Court. In a 1997 case challenging the constitutionality of the Driver's
Privacy Protection Act (DPPA), Judge Shedd held that the federal
government did not have the power to require states to protect the
confidentiality of state driver's license records. In a 9-0 reversal of
Judge Shedd's ruling, the Supreme Court made clear that he had gone too
far. The Senate has a constitutional responsibility to evaluate the
President's nominees, offer advice, and grant--or withhold--its
consent. I take this responsibility very seriously.
Unfortunately, in Judge Shedd's case I believe enough concerns have
been raised about his judicial temperament to lead me to the conclusion
that he should not be elevated to the Fourth Circuit. So, on this vote
I plan to vote against Judge Shedd's nomination.
Mr. LEAHY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. There are now 2 minutes equally divided prior
to the vote.
Who yields time?
The Senator from South Carolina is recognized.
Mr. THURMOND. Mr. President, I rise today to express my strong
support for the nomination of Judge Dennis Shedd to the Fourth Circuit
Court of Appeals. Judge Shedd is a man of great 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.
I want to assure my colleagues that Judge Shedd is committed to
upholding the rights of all people under the Constitution. This fine
man is truly deserving of such high honor, and he will serve the people
of the Fourth Circuit with distinction.
Mr. President, I ask unanimous consent that letters of support for
Judge Shedd be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
To: United States Senators.
From: Luonne Abram Rouse.
Re: Dennis Shedd.
Dennis Shedd is an outstanding American citizen, and a
friend of high integrity and godliness. The United States of
America will benefit greatly from his service in the 4th
Circuit Court of Appeals.
The Honorable Senator Strom Thurmond of South Carolina
introduced me to Dennis in 1983. Putting history behind, we
came together in the 80s, while I served as president of a
local NAACP chapter in South Carolina. We established a
friendship and respectful sharing that has been mutually
beneficial for our work in America and beyond. Since that
time, I have found Dennis Shedd to be the type of person that
I trust to weigh the issues with dignity and legal focus.
In 1982, Senator Thurmond was a guest in our home following
a time when he and I had written communication concerning the
Civil Rights Act. The Senator visited my home to personally
thank me for the communication, and state that he had changed
his mind and agreed to support the Civil Rights Act after
dialogue with several African American leaders. During the
same visit, he extended an invitation for me to be a guest
chaplain at the United States Senate in Washington, DC. I
responded with my presence in April of 1983, at which time I
met Dennis Shedd.
Dennis and I have kept up with one another's growth and
experiences. He has prayerfully supported my appointments in
United Methodist Churches across racial lines in South
Carolina, since 1986. The support he has shown for racial
inclusiveness in churches, during a time in which leading
sociologists claimed that there are no truly desegregated
churches in South Carolina, has been encouraging to my
ministry of intentionality and reconciliation in this period
of church desegregation.
I am confident that persons will be able to communicate
with this experienced Judge, and find him seeking to maintain
peace with justice based soundly on the law. When this matter
is concluded, I would like to have Hillary Shelton, another
outstanding man and long time activist who has been an
overnight guest in our home, to dinner and discover the real
essence of Dennis Shedd as a judge of fairness and justice
regarding issues of human rights.
Many people have sought to block Dennis Shedd's appointment
to the 4th Circuit Court of Appeals, and some have led me to
study his decisions closely. I respectfully ask those who
would oppose him to consider that there is more to a decision
than a final report reveals, and much more to the person
having to issue the judgment regarding the same. I have known
Dennis as a man of his word, who reaches decisions weighing
the evidence with matters of law. I have been a long time
advocate for women's rights and civil rights, and would never
support someone whom I believed had personal issues
outweighing legal judgment on matters concerning the same.
Even is disagreement, his listening ear would grant the same
respect offered to him by those with opposing views. And the
respect he provides for one, I trust him to provide to
others. As a political leader Senator Thurmond has been most
respectful in communicating with me, and as a legal
representative Dennis has been most receptive and
respectful of my calls.
In conclusion, my wife and I have two daughters; our hopes
and dreams for the future are in them. I believe Dennis will
represent equality and justice for women and all ethnicities
in America with devotion to oath he has taken. I do not
believe that he will forsake the law with favoritism for
economic giants or big business. I sincerely view Dennis as
one who will grant persons of every socioeconomic level the
same psycho-social respect within the law.
Therefore, I strongly favor the nomination of Dennis Shedd
to the 4th Circuit Court of Appeals, because Dennis stands
firm on his convictions, but is open to intelligent and
informed opinions of law. He is open to change, but I do not
expect him to change just for political correctness. He will,
however, hear the ethical and moral points. I support him
because of his listening ear and desire for justice.
I appreciate your prayerful action and reception of this
letter.
____
Law Offices of Jack B. Swerling,
Columbia, SC, January 26, 2001.
Re the Honorable Dennis W. Shedd.
Hon. Ernest F. Hollings,
U.S. Senator,
Columbia, SC.
Dear Senator Hollings: I am writing you in support of the
nomination of the Honorable Dennis W. Shedd to the Fourth
Circuit Court of Appeals. I believe that you could not find
from our great state a more able or deserving jurist to sit
on the Fourth Circuit.
I have been in practice for almost 28 years and a
significant part of my practice is dedicated to the
representation of defendants in criminal cases in the
District of South Carolina. Since Judge Shedd was appointed
to serve as a District Judge, I have had the opportunity to
appear before him on many occasions, in both hearings and in
trials.
Judge Shedd presides over the proceedings before him in a
fair and impartial manner.
[[Page S11517]]
All litigants, whether they be private individuals,
corporations, or governmental entities, enjoy the opportunity
to be fully heard in the presentation of their case. I have
always felt that while one side or another must ultimately
prevail, each litigant as well as their counsel have been
treated with the utmost respect and dignity in Judge Shedd's
courtroom. He is known among the federal bar to be
intellectually gifted. He has a complete command of not only
the federal rules of evidence and procedure, but also the
federal case law throughout the country. His orders and trial
rulings are based upon a sound and insightful perspective of
the applicable federal rules and law. In order to reach a
just result in a recent case, Judge Shedd and his very able
law clerks worked long into the night and started again early
the next morning to study the transcripts and research all of
the applicable federal law before ruling on my motion for a
judgment of acquittal. His Order, with underlying factual and
legal support, is a model for any jurist.
It has been an honor and a privilege to practice before the
Judge over these years. He is a man of integrity with the
highest ethical standards; a highly energetic and motivated
jurist; and one with the demeanor and intellectual ability to
serve with distinction on the Fourth Circuit just as he has
served in our District over these past years. On behalf of
this lawyer, I would urge you to support his nomination.
Very truly yours,
Jack B. Swerling.
____
Jan S. Strifling,
Attorney at Law, P.A.,
Columbia, SC, October 2, 2002.
Re Hon. Dennis W. Shedd, U.S. District Judge.
Hon. Charles Schumer,
U.S. Senator, Leo O'Brien Bldg.,
Albany, NY.
Dear Senator Schumer: By way of introduction, I introduced
myself to you in the Tetons last summer when you and your
family were hiking in cascade canyon.
I am writing you in support of Judge Dennis Shedd's
confirmation as Judge of the Fourth Circuit Court of Appeals.
I practice criminal law and can understand that a great deal
of the outcry against Judge Shedd comes from the results of
the criminal cases. From my viewpoint, Judge Shedd makes
decisions which follow the law notwithstanding their
popularity.
I have practiced criminal law for over thirty years and
have had a substantial number of cases before Judge Shedd
since he began as a District Judge. He has always been
courteous to me and my clients and cognizant of the rights of
all parties.
I think that he has been a judge who has been fair to all
litigants and that he would continue in that manner in the
Circuit Court.
Thank you for your consideration.
Sincerely,
Jan S. Strifling.
____
The ``Quattlebaum Case'': What the Lawyers Say
E. Bart Daniel, the criminal defense attorney who represented the
lawyer who pled guilty and was sentenced to jail for perjury (letter to
Senator Hatch dated November 18, 2002)
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, and 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. 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.
Jack Swerling, the criminal defense attorney who represented the Deputy
Solicitor who was tried for perjury before Judge Shedd (letter to
Senator Hollings dated January 26, 2001)
I am writing you in support of the nomination of the
Honorable Dennis W. Shedd to the Fourth Circuit Court of
Appeals. I believe that you could not find from our great
state a more able or deserving jurist to sit on the Fourth
Circuit.
I have been in practice for almost 28 years and a
significant part of my practice is dedicated to the
representation of defendants in criminal cases in the
District of South Carolina. Since Judge Shedd was appointed
to serve as a District Judge, I have had the opportunity to
appear before him on many occasions, in both hearings and
trials.
Judge Shedd presides over the proceedings before him in a
fair and impartial manner. All litigants, whether they be
private individuals, corporations, or governmental entities,
enjoy the opportunity to be fully heard in the presentation
of their case. I have always felt that while one side or
another must ultimately prevail, each litigant as well as
their counsel have been treated with the utmost respect and
dignity in Judge Shedd's courtroom. He is known among the
federal bar to be intellectually gifted. He has a complete
command of not only the federal rules of evidence and
procedure, but also the federal case law throughout the
country. His orders and trial rulings are based upon a sound
and insightful perspective of the applicable federal rules
and law.
It has been an honor and a privilege to practice before the
Judge over these years. He is a man of integrity with the
highest ethical standards; a highly energetic and motivated
jurist; and one with the demeanor and intellectual ability to
serve with distinction on the Fourth Circuit just as he has
served over these past years. On behalf of this lawyer, I
urge you to support his nomination.
Joseph M. McCullough, Jr., the criminal defense attorney
who intervened on behalf of Quattlebaum in the federal
prosecution to have the videotape suppressed at trial (letter
to Senator Hollings dated January 29, 2001)
Having practiced law in South Carolina for more than 20
years, and as past President of the South Carolina Criminal
Defense Lawyers Association, I have had occasion to be in
Judge Shedd's courtroom frequently and have tried several
cases before him. I have always been impressed with Judge
Shedd's factual familiarity and legal preparation in every
matter before him. I have found him to be extremely
intelligent and a firm hand in the courtroom. I have always
been impressed with his understanding of the law, and believe
that he would be a strong addition to the Fourth Circuit
Court of Appeals.
____
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,
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
rescuse 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 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.
____
The Senate,
State of Arkansas,
October 11, 2002.
Re confirmation for Federal Judge Dennis Shedd (South
Carolina) to the US Court of Appeals.
Hon. Blanche Lincoln,
U.S. Senate, Dirksen Senate Office Building, Washington, DC.
Dear Senator Lincoln: I am writing this letter to provide
my strongest possible recommendation for the Hon. Dennis
Shedd, of
[[Page S11518]]
Columbia, South Carolina, who has been nominated by President
Bush to sit on the U.S. Court of Appeals in Richmond.
Yesterday, I read the story in the A Section of the
Arkansas Democrat-Gazette regarding the Senate Judiciary
Committee's decision to delay confirmation of Judge Shedd
until after the recess, after which Senator Strom Thurmond
(R-SC) will have retired from the Senate.
I understand that you are not a member of the Judiciary
Committee. However, I am writing this letter as one of your
loyal supporters and good friends, and as a good Democrat as
well. I want you to know that I cannot think of many people
who would make a better Appeals Court Judge than Dennis
Shedd.
Dennis and I are good friends from the days when we both
worked in Washington, he for Senator Thurmond and I for
Senator Bumpers. In addition, he was my landlord for over
four years at the townhouse where I lived. We have kept in
touch over the years as we got both got married and built
families. I have also visited Dennis and his wonderful wife,
Elaine, in South Carolina during the occasions my family
vacations there.
However, taking friendship and political philosophies
aside, I can honestly say that he has one of the finest minds
I have ever encountered, including President Clinton and many
others with whom I have had the good fortune to become well
acquainted. Furthermore, his sense of personal and
professional integrity is unrivaled, as is his knowledge and
understanding of the law. He was one of the lawyers involved
in the dissolution of the Heritage USA Bankruptcy (Jim
Baker), and he gave half of his legal fees to victims. On one
visit to South Carolina, I had the opportunity to sit in on a
high profile case, and was very impressed with the way he
dispensed justice in that proceeding, and with the
relationship he had with the then Democratic US Attorney's
Office. He has a wonderful family and is someone I would say
is a true patriot.
In short, I believe Dennis Shedd has proven to be a good
and valued officer of the court, and would make an excellent
Appeals Court Justice. I believe the problem with the
confirmation has more to do with the politics of having been
chief of staff to the Senate Judiciary Committee when
President Reagan was in office, and several Democrats see an
opportunity for partisan retribution for some of the judicial
politics of that era. I want you to know that I saw Dennis
Shedd almost every day during that period, and there is no
one who would deny his professionalism in handling these
matters. The politics of that era had more to do with who was
in power than it did with the staff. The US Senate, including
Democrats, should move his confirmation forward.
Dennis is a self-made person who came from a small South
Carolina town and worked his way through law school while a
member of Senator Thurmond's staff, and who did such a good
job was ultimately promoted. You know that I am a good and
loyal Democrat. However, the fact of his political
affiliation should not prevent or detract from all of these
qualifications, and I sincerely plead with you to bring this
up in the Senate Democratic Caucus with a request that the
Judiciary Committee honor its word to Senator Thurmond, and
move Judge Shedd's nomination forward and out of the Senate.
I think this is one of only a handful of letters I have
ever written you. Thank you for your time, and please forgive
the length of this letter. However, I do hope you will take
this request seriously, and pass it on to your colleagues.
Sincerely,
Kevin A. Smith,
State Senate.
____
Garry L. Wooten,
Attorney and Counselor at Law,
Columbia, SC, November 18, 2002.
Senator Ernest F. Hollings,
Russell Senate Office Building,
Washington, DC.
Dear Senator Hollings: I am writing to express my strong
support for the confirmation of Dennis W. Shedd to the Fourth
Circuit Court of Appeals.
I have practiced law for over twenty years in Columbia,
South Carolina. I handle primarily personal injury and
criminal cases. My practice is a Plaintiff's practice. I have
been a member of the South Carolina Trial Lawyers Association
since graduating from law school and appreciate your strong
support for that organization.
I have appeared before Judge Shedd in a certain number of
cases. Some cases have been won and some were lost. In one
case, my client was African American. That case involved a
lawsuit in which the Federal Government fought to deny my
client life insurance benefits after the death of his wife.
Judge Shedd ruled favorably and properly for my client on the
law. My client received a verdict for the full amount of the
benefits. During the trial, Judge Shedd was fair, extremely
knowledgeable on the law, and showed absolute integrity.
I am confident that Judge Shedd will be fair to all and
show complete integrity if confirmed for a position on the
Fourth Circuit Court of Appeals.
With the kindest regards, I am.
Sincerely,
Garry L. Wooten.
____
Gregory P. Harris,
Attorney at Law,
Columbia, SC, November 18, 2002.
Hon. Ernest F. Hollings,
U.S. Senator, Senate Office Building, Washington, DC.
Dear Senator Hollings: This is the second letter that I
have written to you in support of the confirmation of Judge
Dennis Shedd to the Fourth Circuit Court of Appeals. I
believe that it is necessary to write another letter in light
of recent accusations that I have read concerning Judge Shedd
fairness and temperament on the district court bench.
I was the Deputy Chief of the Criminal Division in the U.S.
Attorney's Office when Judge Shedd took the bench in 1992. As
a federal prosecutor, I tried three cases in front of Judge
Shedd. He was tough, but fair. In 1993, I entered private
practice specializing primarily in federal criminal defense.
Since entering private practice, I have tried seven cases in
Judge Shedd's court and appeared on other matters on numerous
occasions. During each of these trials, Judge Shedd was
similarly tough and fair. It has been my experience as a
federal prosecutor and a private attorney that Judge Shedd
feeds everyone out of the same spoon.
As to his temperament, on occasion when he and I have
disagreed over the admittance of evidence, the admission of a
statement, or any other matter of law, he has been
professional, courteous, and usually right. Nevertheless,
even after these disagreements, he has never left the court
room at the end of the day without a smile and a kind word to
the lawyers.
It seems to me that those leveling the accusations at Judge
Shedd have never even seen him in court, much less appeared
before him. Almost all of us who have, strongly support his
confirmation to the Fourth Circuit. If have any questions,
please do not hesitate to contact me regarding my
professional and personal feelings about Judge Shedd.
Regards,
Gregory P. Harris.
____
Nathaniel Roberson,
Attorney at Law,
Columbia, SC, November 18, 2002.
Re nomination for the 4th Circuit Court of Appeals.
Senator Earnest F. Hollings,
Senator Orrin Hatch.
Gentlemen: This is on behalf of Dennis Shedd and his
nomination for the 4th Circuit Court of Appeals.
I have tried many cases, argued motions, and have done may
guilty pleas before Judge Shedd since he became a District
Court Judge in South Carolina.
I have found him to be open and honest with litigant
members of the bar and witnesses relevant to the issues
before him. He has at all times demonstrated the kind of
judicial temperament that has made him a credit to our
judiciary.
He has been accused by groups and organizations of being
biased either for against certain issues that has not
endeared him for the reasons expressed by those organizations
that oppose him.
My experience with Judge Shedd has been professional,
judicial, and he has never blocked or interfered with my
representation of clients and those issues that I was
required to make on behalf of the people I represented. I
urge you and your colleagues to vote in favor of Judge Shedd
being elevated to the Fourth Circuit Court of Appeals.
Thanks for your consideration.
Sincerely,
Nathaniel Robertson.
____
Young and Sullivan, L.L.P.,
Attorneys and Counselors at Law,
Charleston, SC, November 18, 2002.
Re Judge Dennis W. Shedd, nomination, Fourth Circuit.
Senator Orrin Hatch,
Dirksen Senate Office Building,
Washington, DC.
Dear Senator Hatch: I have been in an eight week (8) long
jury trial before Judge Dennis W. Shedd and many other jury
trials, motion hearings, and sentencing hearings and appeals
to the Fourth Circuit. I have appeared before Judge Shedd as
much or more than any defense lawyer in South Carolina.
I am not a political crony of Judge Shedd, I am a trial
lawyer. I was Chief Public Defender in Columbia, SC (1972-87)
Adjunct Professor of Law, USC School of Law (1974-89),
President SC Public Defenders Association (1972-88), Founder,
SC Association of Criminal Defense Lawyers, Served by
election ABA Criminal Justice Council, and was awarded the
Bronze Star in Vietnam (1969-70).
Judge Shedd is a competent, fair, even-handed jurist and I
urge your support for him to be a Judge on U.S. Court of
Appeals--Fourth Circuit.
Tell any U.S. Senator opposed to Judge Shedd's nomination
to call me, I am in my office.
Sincerely,
John McMahon Young,
Attorney At Law.
Mr. THURMOND. I thank the chair.
(Applause, Senators rising.)
The Senator from Utah.
Mr. HATCH. Mr. President, we are so proud of our senior Senator from
South Carolina.
[[Page S11519]]
Mr. President, I rise today in support of the confirmation of Judge
Dennis Shedd and to congratulate the President on getting his 100th
judicial nominee confirmed. Yesterday, I made much more detailed
remarks in Judge's Shedd's favor.
I am also glad for Senator Strom Thurmond. He is much loved in the
Senate, he is much loved in South Carolina and throughout this country,
and I know that he wanted to see his former Chief Counsel confirmed
before the end of his long career in the Senate.
In the recent election, as far as I see it, the President took three
issues to the American people: his Iraq policy, Homeland Security and
his judicial nominees. The election showed that Americans trust this
President including in his selection of judicial nominees.
The election indicated that voters rejected obstruction in the
Senate, including on judicial nominees, and voters especially rejected
the distortions of reputations that they read and heard about in
hundreds of news stories, scores of editorials, and dozens of op-eds .
. . and that 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. We need to
evaluate judges or potential judges as unbiased umpires who call the
balls and the strikes as they are, not as they alone see them and not
as they want them to be. We must end the practice of projecting
ideology to see if an umpire is pro-bat or pro-ball, pro-batter or pro-
pitcher.
Our job is to determine the character and temperament of a nominee to
the judiciary. Period. This is true of the trial bench, the appellate
court, and the Supreme Court.
Again, I 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.
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.''
This is high praise, indeed, and from a colleague from the other side
of the aisle for whom we all have the greatest respect.
Judge Sheed has strong bipartisan support in his home state as well,
and not only from Senators Thurmond and Hollings. He is also strongly
supported by Dick Harpootlian, South Carolina State Chairman of the
Democratic Party, and himself a trial lawyer.
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.''
Judge Shedd will add diversity to the Fourth Circuit Court of
Appeals. The last five Fourth Circuit confirmations have all been
Democrats. 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.
The American people should be grateful that President Bush has
nominated Dennis Shedd to serve this country further. He has already
served for nearly 25 years.
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 1000 criminal defendants. He has been reversed fewer
than 40 times, less than one percent.
In employment cases, he has only twice been reversed in his
decisions. Remarkbly, in criminal cases, Judge Shedd has never been
reversed on any ruling considered before or during trial, or on the
taking of guilty pleas.
Now, detractors have made much of the fact that he has a relative few
decisions that 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.
Notably, on cases involving the Voting Rights Acts, Judge Shedd has
ruled for plaintiffs in each instance, an Act, I might add that he
worked to extend in the Senate.
From his service in the Senate to his role on the South Carolina
Advisory Committee of the United States Civil Rights Commission, Judge
Shedd has been a leader on civil rights. He 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 among 4,000 to 5,000 school children,
he was chosen as the United Way's School Volunteer of the Year.
This record stands in contrast to the distortions we have heard about
Judge Shedd's sensitivity on civil rights.
The Judiciary Committee received a very touching letter from one of
Judge Shedd's former law clerks, Thomas Jones and I placed in the
record yesterday.
Now this young man,--this young lawyer happens to be a person of
color--an African American. He says:
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 . . . I trust the allegations are given the short
shrift they are due.
I would like to read from a letter I received from Niger Innis who
has inherited his father's mantle and is the national spokesman for the
Congress of Racial Equality. We all know his father, of course, Roy
Innis, who was a great leader of the civil rights movement in the
1960's together with Dr. King.
I received this letter even while I was on the floor of the Senate
yesterday.
Mr. Innis writes:
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.
He goes on:
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. . .
We hope that you would join CORE in our support of Judge
Dennis Shedd and urge Senate Democrats to end the unfair
smear against his name. Let Judge Shedd have his day on the
Senate floor.
Another letter I received while I was on the floor yesterday came
from Phyllis Berry Myers, President of the Centre for New Black
Leadership; another great name in the African American community.
Ms. Myers writes:
The Senate can restore 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.
And at 2:32 pm yesterday, while I was on the floor, we also received
a letter from the former Chairman of the NAACP of South Carolina. The
Rev Dr. Luonne Abram Rouse writes:
Dennis Shedd is an outstanding American citizen, and a
friend of high integrity and godliness. The United States of
America will benefit greatly from his service in the 4th
Circuit Court of Appeals.
[[Page S11520]]
The Honorable Senator Strom Thurmond of South Carolina
introduced me to Dennis in 1983. Putting history behind, we
came together in the 80s, while I served as president of a
local NAACP chapter in South Carolina. We established a
friendship and respectful sharing that has been mutually
beneficial for our work in America and beyond. Since that
time, I have found Dennis Shedd to be the type of person that
I trust I trust to weigh the issues with dignity and legal
focus. . .
Reverend Rouse wrote a remarkable letter and ends this way:
In conclusion, my wife and I have two daughters; our hopes
and dreams for the future are in time. I believe Dennis will
represent equality and justice for women and all ethnicities
in America with devotion to oath he has taken. I do not
believe that he will forsake the law with favoritism for
economic giants or big business. I sincerely view Dennis as
one who will grant persons of every socioeconomic level the
same psycho-social respect within the law.
Therefore, I strongly favor the nomination of Dennis Shedd
to the 4th Circuit Court of Appeals, because Dennis stands
firm on his convictions, but is open to intelligent and
informed opinions of law. He is open to change, but I do not
expect him to change just for political correctness. He will,
however, hear the ethical and moral points. I support him
because of his listening ear and desire for justice.
But these are not unique letters. We have received letters from the
people who know Judge Shedd. They are the ones that matter.
I want to take a moment to read a few excerpts from some of the
letters we've received in support of Judge Shedd. Keep in mind that the
letters are from lawyers who know Judge Shedd, who have practiced
before him, and who are in the best position to assess his
qualifications for the appellate bench.
The first letter is from J. Preston Strom, Jr. Mr. Strom writes:
I write to support Judge Shedd's confirmation to the United
States Court of Appeals for the Fourth Circuit. As a former
United States Attorney for the District of South Carolina
appointed by President Clinton, my office had daily dealings
with Judge Shedd. Judge Shedd is a fair and efficient jurist
who even-handedly applied substantive and procedural rules.
On occasions when my office disagreed with Judge Shedd's
rulings, I found that he always provided well-reasoned
analyses for his decisions. Further, when the rules provided
for discretion in sentencing for cooperation with federal
agents in the prosecution of crime, Judge Shedd deliberated
and provided substantial sentence reductions when warranted.
Following my tenure as United States Attorney, I have
practiced before Judge Shedd representing criminal defendants
and civil plaintiffs. In my criminal defense practice, I have
represented many African-Americans before Judge Shedd, and
found Judge Shedd to be fair and consistent to each of my
clients, regardless of race.
As a member of the Board of Governors of the South Carolina
Trial Lawyers Association and a member of the Association of
Trial Lawyers of America, I appreciate a judge who pushes
civil cases towards resolution and does not permit parties to
engage in unwarranted delay tactics. Judge Shedd is such a
judge.
Here is another letter. This one is from attorney Garry Wooten. He
writes:
I have practiced law for over twenty years in Columbia. I
handle primarily personal injury and criminal cases . . .
I have appeared before Judge Shedd in a certain number of
cases. Some cases have been won and some were lost. In one
case, my client was African-American. That case involved a
lawsuit in which the Federal Government fought to deny my
client life insurance benefits after the death of his wife.
Judge Shedd ruled favorably and properly for my client on the
law. My client received a verdict for the full amount of the
benefits. During the trial, Judge Shedd was fair, extremely
knowledgeable on the law, and showed absolute integrity.
I am confident that Judge Shedd will be fair to all and
show complete integrity if confirmed for a position on the
Fourth Circuit Court of Appeals.
Another letter, this one from Jonathan Harvey, states:
I am the current treasurer of the South Carolina
Association of Criminal Defense Lawyers and a member of its
board as well as past representative to its Board of
Directors from the Fifth Judicial Circuit. . . . I have had
many opportunities to appear in front of Judge Shedd. I have
left each proceeding convinced that my clients irrespective
of social status, creed, gender, or race were treated fairly
and with a proper application of the law.
I trust this letter will enable you to inform your
colleagues that there exists a significant history of Judge
Shedd exercising his discretion objectively and fairly toward
those parties who have appeared before him.
In another letter, lawyer John Simmons writes:
In all of my litigation before Judge Shedd, I have found
him to be fair and impartial. He possesses the highest
integrity and intellect and always treats the attorneys and
litigants with the utmost respect.
In one particular civil matter, I represented an individual
non-party who was alleged to have donated blood contaminated
with the HIV virus. Judge Shedd handled this sensitive and
difficult matter with patience and care, protecting my
client's identity while affording all litigants their
adequate discovery rights. I was extremely impressed with the
thoughtful diligence Judge Shedd pursued in ensuring my
client's confidentiality while balancing the rights of the
parties.
Finally, here is a letter from Howard Hammer. Mr. Hammer writes:
I have been a practicing South Carolina attorney for over
thirty (30) years. My practice primarily involves
representation of plaintiffs in civil litigation, including
representation of numerous individuals in employment
disputes. . . .
I have found Judge Shedd to be firm, just and deliberate in
all my dealings with him. He is a man of highest integrity
and I would respectfully urge your support of his
confirmation.
I could go on and on reading testimonials from lawyers in South
Carolina who have regularly appeared before Judge Shedd and who
strongly support his confirmation on the Fourth Circuit. Yesterday I
entered other letters into the record.
Mr. President, Dennis Shedd is well qualified to serve on the Fourth
Circuit Court of Appeals. I think so and the American Bar Association,
hardly a bastion of conservative politics, has said so as well. In
supporting his confirmation I for one express my gratitude on behalf of
the American people for an entire life in public service.
Mr. President, I ask unanimous consent that letters of support for
the confirmation of Judge Shedd be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Congress of Racial Equality,
New York, NY, November 18, 2002.
Hon. Orrin Hatch,
U.S. Senate, U.S. Capitol,
Washington, DC.
Dear Senator Hatch: 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 has actively sought
minority and female candidates for other Magistrate Judge
positions, and has directed the Selection 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
smear against his name. Let Judge Shedd have his day on the
Senate floor.
Sincerely,
Niger Innis, National Spokesman.
____
Centre for New Black Leadership,
November 18, 2002.
Hon. Orrin Hatch,
Committee on the Judiciary, U.S. Senate, Washington, DC.
Dear Senator Hatch: The Centre for New Black 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
[[Page S11521]]
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.
____
Rosenberg Proutt Funk &
Greenberg, LLP,
Baltimore, MD, June 25, 2002.
Senator Patrick Leahy,
Chairman, U.S. Senate Judiciary Committee, 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.
____
E. Bart Daniel,
Attorney at Law,
Charleston SC, November 18, 2002.
Hon. Orrin Hatch,
104 Hart Office Building, Washington, DC.
Re Nomination of Dennis W. Shedd to 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, and Assistant
U.S. Attorney, 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
courtcous 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). Dr. Duncan was a practicing attorney who was
convicted for 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 courtrous and patient and listened intently to the many
people who spoke on our client's behalf including 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 if I can be of any
further support, please do not hesitate to call.
Yours very truly,
E. Bart Daniel.
____
J. Kershaw Spong,
Columbia, SC, November 4, 2002.
Hon. Ernest F. Hollings,
U.S. Senate,
Washington, DC.
Dear Senator Hollings: Please allow this letter to voice my
strong support for the nomination of Dennis Shedd to the
United States Court of Appeals for the Fourth Circuit. Your
support for Judge Shedd's nomination is appreciated, and, as
a fellow South Carolinian, I hope you will continue to
support him throughout this process.
Having worked with Judge Shedd in the U.S. Senate, and as a
practicing lawyer in South Carolina, I know him to be a
person of the highest integrity, professional competence, and
judicial temperament. As you may be aware, the ABA, which
reviews the nominees, has given Judge Shedd a majority rating
of ``well qualified,'' its highest rating.
I am also concerned about the nominating process. I think
many things have been unfairly said about Judge Shedd by
outside special interest groups which have little basis in
fact. It will become increasingly more difficult to get good
and competent attorneys to step forward to serve in the
judiciary if they have to go through this highly charged
partisan atmosphere.
I hope for your continued support for this exceptional
nominee and ask that you urge the Senate Judiciary Committee
to bring this nomination to a vote before the end of
Congress. After having to wait well over a year since his
nomination, and more than several months since his hearing at
the Committee, it is time for Judge Shedd to be confirmed to
the Fourth Circuit.
Thank you for your consideration of my views.
Sincerely,
J. Kershaw Spong.
____
Tompkins and McMaster, LLP,
Columbia, SC, October 31, 2002.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, Washington, DC.
Dear Senator Leahy: I was extremely disappointed in your
recent action denying Judge Dennis Shedd, nominee to the
Fourth Circuit Court of Appeals, a vote on the Committee's
October 8th markup. Despite your promises to Senator Strom
Thurmond and other members of the Senate Judiciary
Committee--and in contravention of Committee rules--you
refused to schedule a vote to allow his nomination to proceed
to the full Senate.
It would appear that you are bowing to the demands of
outside interest groups who have unfairly characterized Judge
Shedd's ruling on the district court. The facts are that he
has been reversed in fewer than 1% of the more than 5,000
cases he has heard in his twelve years on the district court.
After reviewing his record, the ABA rated Judge Shedd ``well-
qualified,'' its highest rating. You once referred to the ABA
rating system as the ``gold standard.'' In addition, Judge
Shedd is well-represented by the members of the bench and bar
in South Carolina, and has the bipartisan support of Senators
Thurmond and Hollings--his home state senators.
The Senate Judiciary Committee has had nearly a year and a
half to review Judge Shedd's record. I urge you to stop
delaying a vote on his nomination. Judge Shedd, an
exceptional nominee with the bipartisan support, deserves to
be confirmed to the Fourth Circuit before the end of this
Congress.
Thank you.
Yours very truly,
Henry Dargan McMaster.
____
STROM LAW FIRM L.L.C.,
Columbia, SC, November 18, 2002.
Hon. Ernest F. Hollings,
U.S. Senator-South Carolina,
Washington, DC.
Re confirmation of the Honorable Dennis Shedd to the United
States Court of Appeals for the Fourth Circuit
Dear Senator Hollings: I write to support Judge Shedd's
confirmation to the United States Court of Appeals for the
Fourth Circuit. As a former United States Attorney for the
District of South Carolina appointed by President Clinton, my
office had daily dealings with Judge Shedd. Judge Shedd is a
fair and efficient jurist who even-handedly applied
substantive and procedural rules. On occasions when my office
disagreed with Judge Shedd's rulings, I found that he always
provided well-reasoned analysis for his decisions. Further,
when the rules provided for discretion in sentencing for
cooperation with federal agents in the prosecution of crime,
Judge Shedd deliberated and provided substantial sentence
reductions when warranted.
Following my tenure as United States Attorney, I have
practiced before Judge Shedd representing criminal defendants
and civil plaintiffs. In my criminal defense practice, I have
represented many African-Americans before Judge Shedd, and
found Judge Shedd to be fair and consistent to each of my
clients, regardless of race.
As a member of the Board of Governors of the South Carolina
Trial Lawyers Association and a member of the Association of
Trial Lawyers of America, I appreciate a judge who pushes
civil cases towards resolution and does not permit parties to
engage in unwarranted delay tactics. Judge Shedd is such a
judge.
From my many years of practice before Judge Shedd, I can
say that one admirable characteristic stands above all.
Diligence. Each time I have appeared before Judge Shedd, it
is clear that Judge Shedd has examined the entire case file
and performed the requisite research necessary to frame the
issues. For attorneys who vigorously represent their clients
at every stage of the criminal and civil processes, a hard
working judge is much appreciated. It is Judge Shedd's
diligence in examining each case on its facts and the
supporting law that makes him an excellent candidate for
appointment to the United States Court of Appeals for the
Fourth Circuit.
If you or anyone on your staff has questions, please
contact me.
With regards, I am
Very truly yours,
J. Preston Strom, Jr.
[[Page S11522]]
____
Law Office of Jonathan Harvey,
Attorney at Law,
Columbia, SC, October 1, 2002.
Re Nomination of the Honorable Dennis Shedd.
Hon. Ernest F. Hollings,
U.S. Senator, U.S. Senate,
Washington, DC.
Dear Senator Hollings: I am taking the liberty of
contacting your office on behalf of Judge Shedd.
I had heretofore been grateful for the bipartisan support
of our senators and until recently thought that protocol
would suffice to ensure his nomination.
However, recent developments concerning his nomination have
compelled me to contact you to provide a recommendation based
upon a hands on perspective.
I am writing to express my support for his nomination. I am
the current treasurer of the South Carolina Association of
Criminal Defense Lawyers and a member of its board as well as
past representative to its Board of Directors from the Fifth
Judicial Circuit. As I am sure you know, the Fifth Judicial
Circuit encompasses Richland County and Columbia. My practice
is focused in the Midlands. I have had many opportunities to
appear in front of Judge Shedd. I have left each proceeding
convinced that my clients irrespective of social status,
creed, gender, or race were treated fairly and with a proper
application of the law.
I trust this letter will enable you to inform your
colleagues that there exists a significant history of Judge
Shedd exercising his discretion objectively and fairly toward
those parties who have appeared before him.
I am grateful and appreciative of the support you have
shown for his nomination and hope that my comments and
insight will prove to be beneficial on his behalf.
Our State is fortunate to have been able to count on you as
a steward for its interests and I thank you for your tireless
efforts on behalf of our Country and State.
Yours truly,
Jonathan Harvey.
____
Simmons & Griffin, L.L.C.,
Columbia, SC, November 18, 2002.
Re Judge Dennis W. Shedd.
Hon. Orrin Hatch,
U.S. Senate, Committee on Judiciary, Washington, DC.
Dear Senator Hatch: I am a former United States Attorney
who now practices law in Columbia, South Carolina. Prior to
entering government service and private practice, I served as
a law clerk on the Fourth Circuit Court of Appeals.
Over the past twelve years, I have had the opportunity to
appear before Judge Dennis Shedd in criminal cases as both a
prosecutor and defense attorney. In addition, I have handled
numerous civil cases before Judge Shedd as a representative
of the plaintiff and defense.
In all of my litigation before Judge Shedd, I have found
him to be fair and impartial. He possesses the highest
integrity and intellect and always treats the attorneys and
litigants with the utmost respect.
In one particular civil matter, I represented an individual
non-party who was alleged to have donated blood contaminated
with the HIV virus. Judge Shedd handled this sensitive and
difficult matter with patience and care, protecting my
client's identity while affording all litigants their
adequate discovery rights. I was extremely impressed with the
thoughtful diligence Judge Shedd pursued in ensuring my
client's confidentiality while balancing the rights of the
parties.
I respectfully write in support of Judge Shedd's
confirmation to the United States Court of Appeals for the
Fourth Circuit.
Thank you for your consideration of this matter.
With kind regards, I remain,
Sincerely,
John S. Simmons.
____
Hammer Hammer & Potterfield,
Columbia, SC, November 18, 2002.
Hon. Ernest Hollings,
Russell Senate Office Buildings,
Washington, DC.
Dear Senator Hollings I am writing regarding consideration
of United States District Judge Dennis Shedd for a position
on the Fourth Circuit Court of Appeals. As you know, I have
been a practicing South Carolina attorney for over thirty
(30) years. My practice primarily involves representation of
plaintiffs in civil litigation, including representation of
numerous individuals in employment disputes.
I have known Judge Shedd for over twelve (12) years. I have
found Judge Shedd to be firm, just and deliberate in all of
my dealings with him. He is a man of highest integrity and I
would respectfully urge your support of his confirmation.
With kind regards, I remain,
Very truly yours,
HOWARD HAMMER, P.A.,
HAMMER, HAMMER & POTTERFIELD.
The PRESIDING OFFICER. Is there any Senator requesting time?
The Senator from Vermont.
Mr. LEAHY. Mr. President, have the yeas and nays been ordered?
The PRESIDING OFFICER. The yeas and nays have not been ordered.
Mr. LEAHY. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. LEAHY. Mr. President, I yield back the remainder of the time.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Dennis W. Shedd, of South Carolina, to be
United States Circuit Judge for the Fourth Circuit? The yeas and nays
have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Alaska (Mr. Murkowski)
is necessarily absent.
The PRESIDING OFFICER (Mr. Miller). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 55, nays 44, as follows:
[Rollcall Vote No. 250 Ex.]
YEAS--55
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Byrd
Campbell
Chafee
Cochran
Collins
Craig
Crapo
DeWine
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Kyl
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--44
Akaka
Barkley
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Cantwell
Carnahan
Carper
Cleland
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Harkin
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Leahy
Levin
Lieberman
Mikulski
Murray
Nelson (FL)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Torricelli
Wyden
NOT VOTING--1
Murkowski
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is laid on the table. The President shall be immediately
notified of the Senate's action.
____________________