[Congressional Record (Bound Edition), Volume 148 (2002), Part 11]
[Senate]
[Pages 15442-15447]
[From the U.S. Government Publishing Office, www.gpo.gov]


                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read the nomination of D. Brooks Smith, of 
Pennsylvania, to United States Circuit Judge for the Third Circuit.
  The PRESIDING OFFICER. There are now 5 minutes evenly divided on the 
nomination. Who yields time?

[[Page 15443]]


  Mr. LEAHY. Madam President, we have at best a modicum of order in the 
Senate, but I will proceed.
  The record before us does not demonstrate that Judge D. Brooks Smith 
merits a promotion to the Court of Appeals. He is already serving a 
lifetime position as a Federal judge, but he continued as a member of a 
discriminatory club more than a decade after he told the Senate he 
would quit. He did not resign until 1999, and then only after this 
vacancy on the Third Circuit opened up.
  It should make no difference whether this club discriminated against 
women, or people because of their race or creed; it is discriminatory. 
He acknowledged that continuing in the club would be inconsistent with 
ethical rules, but he continued to serve there, even after he told 
Senator Heflin under oath in 1988 that under these rules he would be 
required to resign.
  I believe he did not keep his word. I think this is, frankly, the 
kind of lapse that, had it been somebody nominated by the previous 
President, my friends on the other side of the aisle would have voted 
against him. I think they should vote against this one, even though he 
is a member of their own party. We have the areas where he did not 
recuse himself in a case where he had a clear conflict of interest. He 
took special-interest-funded trips. I think his record as a whole calls 
into question his sensitivity, his fairness, his impartiality, and his 
judgment.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, we debated the issue of Judge Smith's 
qualifications extensively last night. But by way of brief summary: He 
has an excellent educational background. He practiced law for 8 years. 
He served as district attorney of a major county in Pennsylvania. He 
was a State court judge for 4 years, and in 1988 the bipartisan 
judicial commission, which Senator Heinz and I had organized, found him 
qualified. He has served in a very distinguished way for the past 
almost 14 years on the Federal court in Pittsburgh. He is now the chief 
judge of the Western District Court. His reputation is excellent. I 
have known him for the past 14 years and can personally attest to his 
integrity and his qualification.
  When an issue is raised about not resigning from a club and the 
contention has been made that there was false testimony under oath, 
that simply is not supported by the facts. When Judge Smith came up for 
confirmation in 1988, he made the statement that he would resign if he 
could not change the rules of the fishing club, which was viewed at 
that time as discriminatory because women were not permitted to join.
  In 1992, there was a definitive ruling that a club which did not have 
business purpose--which is the kind of club that this was--did not 
practice what is called invidious discrimination. Since the club did 
not practice invidious discrimination, Judge Smith did not have to 
resign. Certainly it cannot be said that somebody made a false 
statement under oath in 1988 when he had an intention at that time to 
do precisely what he said.
  When later circumstances arise, where there is a change of 
circumstance, nobody can say that what he testified to in 1988 was 
incorrect at that time, because the circumstances had changed.
  When the argument is made that he resigned when a vacancy arose on 
the Third Circuit, there were lots of vacancies on the Third Circuit in 
the interim, so that if that was a motivating factor, he could have 
resigned at an earlier time.
  Judge Smith has brought to Washington a virtual army of people who 
have supported him, including many women.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SPECTER. I urge my colleagues to vote for his confirmation.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, as much as I like and respect my 
distinguished colleague from Pennsylvania, I believe Judge Smith did 
not keep his commitment in testimony before the Senate, did not keep 
his commitment to Senator Howell Heflin, a commitment that was made 
under oath. This was the first opening of a Court of Appeals seat from 
the Western District of Pennsylvania.
  When I look at this, I look at the way he misled us in his initial 
description of the club that he belonged to and then further misled us 
in his intention. Frankly, I cannot support him. Every Senator can vote 
how they want. I cannot vote for him.
  Mr. KERRY. Mr. President, I regret that I will be opposing Judge 
Smith's nomination. I regret that this nomination has become a 
lightning rod for so many.
  Let me state at the outset that I disagree very strongly with Judge 
Smith's rulings on a number of cases. I find serious fault with his 
stated comments on the Violence Against Women Act. In a 1993 speech, 
Judge Smith told the Federalist Society that he viewed VAWA as 
unconstitutional. The text of those remarks read in part ``There is no 
legitimate constitutional source for this new-found `civil right' to be 
free from physical violence.'' I cannot overstate my objections to his 
callous view of domestic violence.
  I understand that Judge Smith has received the American Bar 
Association's rating of ``well qualified.'' I also understand that 
Judge Smith has strong support across the political spectrum in western 
Pennsylvania, his home. We have heard his friends in the Senate point 
out that he is a respectful, friendly and unbiased judge. These are 
important qualifications, and I do not doubt them. However, we must 
look beyond such qualifications when considering a nomination of this 
importance.
  It is critically important that a judge on a Circuit Court of 
Appeals, the court of last resort for the vast majority of cases, have 
an ethically spotless record. In 1992, Judge Smith testified under oath 
that he would leave the Spruce Creek Rod and Gun Club within a couple 
of years if he could not change the rules of the club preventing women 
members. He did not do that. It was not until the seat on the Third 
Circuit Court of Appeals to which he now seeks appointment became 
vacant that he resigned his membership in the club. To this day he 
denies any wrongdoing. However, several prominent judicial ethicists 
have pointed out that he clearly violated the Code of Conduct for U.S. 
Judges.
  There is a model for cases such as Judge Smith's involvement in the 
Spruce Creek club. Judge Kenneth Ryskamp was denied an appellate court 
seat in 1991 because of his membership in a country club whose bylaws 
were uncertain regarding membership diversity. In 1986, he was 
nominated to be a district court judge, he declared himself to be a 
member of a club whose bylaws clearly exclude women. He also told the 
Judiciary Committee that he would resign from that club. He did so 
almost immediately. Unfortunately, this example stands in stark 
contrast to the actions of Judge Smith.
  Judge Smith also conducted himself poorly in not immediately recusing 
himself from two cases involving Mid-States Bank which was both his 
wife's employer and a bank in which he owned significant stock. During 
his hearing he did agree that he erred in not recusing himself sooner, 
which I do appreciate. But nevertheless, he exercised judgement that 
was questionable at best.
  The Court of Appeals is the court of last resort for thousands of 
critical cases each year. Judges who serve there must be in the highest 
moral standing. Judge Smith's failure to follow-through on a promise to 
the Senate in a timely matter and his handling of cases involving Mid-
States bank are disappointing and call into question that moral 
standing. Therefore, I reluctantly must oppose his nomination.
  Mr. WELLSTONE. Mr. President, I speak today in opposition to the 
nomination of D. Brooks Smith to the Third Circuit Court of Appeals. I 
oppose the nominee because I believe serious questions have been raised 
regarding his ethical integrity and judicial temperament. Mr. Smith 
misled the Judiciary Committee in 1988 when he promised he

[[Page 15444]]

would resign from the all-male Spruce Creek Rod and Gun Club. Despite 
his promise, and after the committee passed a resolution asserting that 
belonging to exclusive clubs where business is conducted constitutes 
invidious discrimination, Mr. Smith did not resign. In fact, he did not 
resign until 1999, when the position on the Third Circuit opened up.
  Mr. Smith appears to subscribe to a general judicial philosophy that 
neglects the rights of women, institutionalized persons, consumers, 
workers, prisoners and disabled persons. His judgments have been 
reversed by the Third Circuit Court of Appeals 51 times--a larger 
number of reversals than any of the Appellate Court Nominees who have 
come before the Judiciary Committee this Congress. Many of these 
reversals concerned decisions affecting civil and individual rights and 
indicate a disturbing lack of sensitivity and failure to follow 
established rules of law and appellate court decisions when it comes to 
those rights.
  I am particularly concerned about Mr. Smith's reported view that the 
Violence Against Women Act is unconstitutional. I believe the Act is a 
lifeline to women in danger around the country and find Mr. Smith's 
view to be extreme. He is not in my view a suitable judge to serve one 
level below the Supreme Court.
  Ms. CANTWELL. Mr. President, I have carefully considered the record 
of Judge D. Brooks Smith, who has been nominated to the Third Circuit 
Court of Appeals, and it is with regret that I will be voting not to 
elevate Judge Smith. While I believe that he is intellectually 
qualified and personally respect, the fact remains that when he was 
confirmed as a judge to the District Court by this committee in 1988, 
Judge Smith stated under oath that he would follow the ethical rules 
governing Federal judges and resign from a discriminatory club if he 
was unable to change the men-only rule. Judge Smith failed to change 
that rule, but did not resign from the Club until more than a decade 
later, in December of 1999.
  Since it became known that Judge Smith had not withdrawn from the 
club, he has made an attempt to justify his inaction by claiming the 
club is purely social and is thus does not engage in pervasive 
discrimination. While I believe that there is little difference between 
a club that affirmatively denies membership to women, and a club that 
denies membership to African Americans or to people of a particular 
religious affiliation, the issue is not whether or not the club's 
discriminatory membership policies are or are not ``pervasive.'' The 
issue is that Judge Smith told this Committee under oath that he would 
resign from the club and he did not do so.
  Federal judges are appointed to lifetime terms and the confirmation 
process is the only democratic check on individuals conduct, unless he 
or she is appointed to a higher position. If a promise to the Committee 
like the one Judge Smith made can be so broken with no consequence, 
then promises and assurances made by other nominees to this Committee 
will mean very little.
  I am also disturbed by Judge Smith's judicial decisions in the gender 
discrimination context. In at least two cases, Judge Smith's 
application of legal and constitutional standards for deciding gender 
discrimination complaints raises serious concerns about his willingness 
to reach decisions fairly and in a manner consistent with precedent in 
the Third Circuit. In Shafer v. Board of Education, Judge Smith 
dismissed the suit filed by a male teacher challenging his school 
board's family leave policy which entitled women, and not men, to one 
year unpaid leave for childbirth or ``childrearing.'' The Third Circuit 
reversed, finding the policy to be in violation of the father's Title 
VII rights. In Quirin v. City of Pittsburgh, Judge Smith interpreted 
the law in a way that made it nearly impossible for the City of 
Pittsburgh to remedy past discrimination in its hiring of only male 
firefighters, and he applied the law in a manner inconsistent with 
established precedent.
  Judge Smith also has engaged in other questionable conduct. He has 
exercised dubious judgment in failing to promptly withdraw from a case 
that involved a bank in which he had a very significant investment, he 
has attended more corporate funded trips than any other sitting federal 
judge, and he has given speeches expressing his views of the 
constitutionality of statutes that could be challenged in cases before 
him. The combination of these factors suggests that Judge Smith simply 
has ethical blind spots that call into question his suitability to 
serve on the Circuit Court.
  I am concerned by Judge Smith's failure to follow precedent and his 
troubling record of reversals, and by his actions on the bench that 
fail to meet the very highest standards of the legal profession. In 
addition, his failure to promptly abide by the promise given to this 
Committee in 1988 and withdraw from the Spruce Creek Rod and Gun club 
is simply a failure that cannot be ignored. Therefore, I cannot support 
his elevation to the Third Circuit.
  Mr. HATCH. Mr. President, I stand in support of the confirmation of 
D. Brooks Smith, who has been nominated to be a judge on the Third 
Circuit Court of Appeals. Judge Smith is currently the Chief Judge for 
the Western District of Pennsylvania. He has compiled an impressive 
record as a judge since 1988, when, at age 36, he became one of the 
youngest Federal judges in the country. Prior to that, Judge Smith has 
served as a state court judge, as a prosecutor, and as a private 
practitioner with a law firm in Altoona, Pennsylvania. He is a 1973 
graduate of Franklin and Marshall College and a 1976 graduate of the 
Dickinson School of Law in Pennsylvania.
  Of course, anyone who has been reading the newspapers in the past few 
months knows that it would be impossible to comment on Judge Smith's 
credentials without mentioning the attack he has come under from the 
usual liberal lobbyist interest groups in Washington. As President 
Reagan would say, there they go again.
  An editorial in Pittsburgh Post-Gazette noted,

       Critics of Smith, many aligned with Democratic Party 
     interests, say he has been too quick to dismiss valid 
     lawsuits brought by individuals against corporations, and too 
     eager to travel to conferences paid for by businesses with 
     interests in federal litigation. . . . But outside 
     Washington's world of partisan poliitics, Smith seems to have 
     no enemies, only admirers. Those who have watched him work 
     say an exemplary 14-year record on the federal bench in 
     Western Pennsylvania is being twisted by political 
     opportunities. His popularity outside the capital extends 
     even to members of the opposing political party, who describe 
     him as fair, hard-working and respectful to all.

  Well, it is an election year and we know the left of mainstream 
groups will not miss an opportunity to flex their muscles.
  Those groups who are working to discredit Judge Smith apparently 
believe that President Bush's circuit court nominees deserve to have 
their records distorted and their reputations dragged through the mud. 
I think that no judicial nominee deserves such treatment, and that was 
something I practiced as Chairman for 6 of President Clinton's 8 years 
in office. I strongly agree with the Washington Post editorial of 
February 19, 2002, that ``opposing a nominee should not mean destroying 
him.''
  Referring to our last confirmation hearing, the Post pointed out.

       The need on the part of liberal groups and Democratic 
     senators to portray [a nominee] as a Neanderthal--all the 
     while denying they are doing so--in order to justify voting 
     him down is the latest example of the degradation of the 
     confirmation process.

  I hope that my colleagues in the Senate will be sensitive to the 
dangers to the judiciary and to the reputation of this body that will 
certainly result from the repeated practice of degrading honorable and 
accomplished people who are willing to put their talents to work in the 
public service. Again, I fully support a thorough and genuine review of 
a nominee's record and temperament, and in no way do I think we should 
shy away from our constitutional role of providing advice and consent.
  We did that in the case of D. Brooks Smith and have found him to be 
one of the finist jurists serving today. The President was right to 
nominate him, we will do well to confirm him.

[[Page 15445]]


  Mr. DURBIN. Mr. President, I have the utmost respect for Senator 
Arlen Specter. During the Clinton Presidency, Senator Specter angered 
many in his own party by standing up to conservative special interest 
groups and supporting well-qualified mainstream judicial nominees, many 
of whom waited months or years for a confirmation hearing.
  That said, Judge D. Brooks Smith of Pennsylvania has a track record 
that troubles me. His conservatism is not in dispute, on display in a 
1993 speech to the ultra-conservative Federalist Society criticizing 
the Violence Against Women Act. He articulated a vision of 
constitutional federalism directly at odds with Congress's power to 
pass that important legislation, and many other important federal 
initiatives to fight crime, such as the highly successful ``Weed and 
Seed'' program. The Supreme Court subsequently invalidated a small 
portion of the Violence Against Women Act, but Judge Smith's vision 
well exceeds the Court's own.
  Judge Smith has also engaged in conduct that raises serious ethical 
questions.
  First, as you have heard, Judge Smith has a long association with a 
prestigious private club that has a formal policy barring women from 
membership. Exclusive clubs are serious business, forging important 
commercial ties and blocking women from full opportunity in society. 
Justice Sandra Day O'Connor, who was offered a job as a legal secretary 
out of Stanford Law School, has endorsed limits on such clubs, noting 
that the government has a ``profoundly important goal of ensuring 
nondiscriminatory access to commercial opportunities in our society.''
  We can debate back and forth the merits of whether the Spruce Creek 
Club is or is not a ``purely social'' organization, at least one club 
member told the Judiciary Committee investigator that he has attended 
several business conferences at the club. For me, though, it is even 
more significant that Judge Smith told this same Judiciary Committee in 
1988 that he would comply with the ABA Code of Judicial Conduct and 
resign from the club if it did not change its policies. To his credit, 
he did try to change the policies. But he did not follow through on his 
commitment and resign for 10 more years.
  Second, as a district court judge, Judge Smith sat on two fraud cases 
in which he and his wife had a conflict of interest. He did recuse 
himself from these cases, but only after a period of time had passed in 
which he was well aware of the conflict and continued to issue orders 
in both cases. His defense, that none of the parties asked him to 
recuse himself earlier, is weakened by the fact that he never told the 
parties, before or after, of his $100,000 plus investment in the bank 
in question.
  Finally, I am troubled by Judge Smith's frequent attendance at 
judicial seminars sponsored by special interest groups and funded by 
corporations with litigation pending before his court. Most 
importantly, he remains to this day unwilling to report the value of 
those seminars on his financial disclosure forms and unwilling to 
accept responsibility to be attentive to the corporate sponsors of 
those seminars. Both of these positions are inconsistent with an 
advisory opinion of the Judicial Conference's Committee on Codes of 
Conduct.
  For these, reasons, I am constrained to oppose Judge Smith's 
nomination.
  Mr. FEINGOLD. Mr. President, I will vote ``no'' on the nomination of 
D. Brooks Smith to the U.S. Court of Appeals for the Third Circuit. Let 
me take a few minutes to explain my decision.
  First, let me note that I did not reach this decision lightly. After 
this vote, we will have considered 64 judicial nominations of President 
Bush on the floor and I will have voted against only two. And this will 
be the first Court of Appeals nominee I have voted against on the 
floor. I voted against one other nominee in Committee, while I have 
voted in favor of 12 circuit court nominations.
  I also want again to commend the chairman of the Judiciary Committee 
and the majority leader for the way that they have handled judicial 
nominations. The pressure is intense, and the criticism quite harsh. It 
is my view that a process that gives a nominee a hearing, and then a 
vote in the committee, and then a vote on the floor is not an unfair 
process; it is the way the Senate is supposed to work.
  During the previous six years, the Senate, and the Judiciary 
Committee did not work this way. Literally dozens of nominees never got 
a hearing, as Judge Smith did, and never got a vote, as Judge Smith did 
in committee and is about to on the floor. Those nominees were 
mistreated by the committee. Judge Smith has not been mistreated. I 
commend Chairman Leahy for doing what he can to set a new course on the 
Judiciary Committee, even though most supporters of the President's 
nominees do not give him credit for that.
  I chaired the hearing that the Judiciary Committee held on Judge 
Smith. He is obviously a very intelligent man, and talented lawyer. He 
is personable and respectful. My opposition to his nomination is not 
personal.
  I oppose this nomination because I believe that Judge Smith has not 
demonstrated good judgment on certain ethical issues. Beyond that, I 
believe that he misled the Judiciary Committee when his conduct was 
fairly questioned. These are serious issues, not trifles, not excuses. 
I cannot in good conscience support his elevation to the Court of 
Appeals.
  People who came to our courts for justice don't get to pick their 
judges. And, at least at the Federal level, they don't get to elect 
judges. If our system is to work, if the people are to respect the 
decisions that judges make, they have to have confidence that judges 
are fair and impartial. Judges, more than any other public figures, 
have to be beyond reproach. The success of the rule of law as an 
organizing principle of our society is based on the respect that the 
public has for judges. A legal system simply cannot function if the 
public does not believe its judges will be fair and impartial.
  That is why I have focused on ethical issues on a number of 
nominations we have faced so far. I can't as a Senator assure my 
constituents that every decision made by a judge will be one with which 
they will agree, or even the correct one legally. But I should be able 
to assure them, indeed, I must be able to assure them, that those 
decisions will be reached fairly and impartially, that the judges I 
approve for the Federal bench are ethical, and beyond that, that they 
understand the importance of ethical behavior to the job that they have 
been selected to do.
  In 1988, Judge Smith was nominated to the Federal District Court in 
Pennsylvania. He had a distinguished legal and academic record, and his 
nomination faced no serious opposition. The one issue that aroused 
controversy was his membership in a hunting and fishing club called the 
Spruce Creek Rod and Gun Club that did not then, and does not today, 
permit women to be members. Judge Smith told Chairman Biden in a letter 
that he would try to convince the club to change its policy and if he 
was unsuccessful he would resign from the club.
  In answers to questions posed by Senator Schumer, Judge Smith stated: 
``In my 1988 letter to the Judiciary Committee, I stated that I would 
resign from the Spruce Creek Rod & Gun Club if it did not amend its by-
laws to admit women as members. I did not specify in my letter when I 
would resign.''
  But Judge Smith also testified before this committee, under oath, in 
1988. Senator Howell Heflin asked what steps he would take to change 
the restriction and how long he would wait. Judge Smith testified as 
follows:

       Well, first of all, Senator, I think the most important 
     step would be to attempt an amendment to the bylaws. Failing 
     that, I believe an additional step would and could be--and I 
     would support, and have indicated to at least one member of 
     the club that I would support and attempt--an application for 
     membership from a woman. Failing that, I believe that I would 
     be required to resign.
       I think it would be necessary for me to await an annual 
     meeting which is, as I understand it--and I preface it with 
     ``as I understand it'' because I have not been an active 
     member in any real sense of the word, but I believe there to 
     be an annual meeting every April--and I believe I would have 
     to await that point in time to at least attempt a bylaws 
     amendment.

  Now I suppose that our former colleague Senator Heflin, who was a 
State

[[Page 15446]]

supreme court judge earlier in this career, could have nailed him down 
even tighter than he did. But we don't have to do that in the Judiciary 
Committee. The committee is not a court of law. We have a right to rely 
on the clear implications of sworn testimony of nominees who come 
before us. I believe everyone at that hearing, and everyone reading it 
fairly today would conclude that Judge Smith promised that he would 
resign in 1989, if he was unsuccessful in getting the club to change 
its policies at the next annual meeting.
  Judge Smith made that promise in October 1988. He was then confirmed 
by the Judiciary Committee and by the full Senate. We learned after 
Judge Smith was nominated to the Third Circuit last year that he didn't 
resign from the club until 1999, eleven years later. Indeed, he didn't 
resign until after a vacancy arose on the Third Circuit Club of Appeals 
in which he was interested. This is what he wrote to the club when he 
resigned on December 15, 1999:

       After considerable thought, and not without a measure of 
     regret, I hereby submit my resignation from membership in the 
     Spruce Creek Rod and Gun Club, effective immediately. Certain 
     of the Club's exclusive membership provisions, which I do not 
     expect will change, continue to be at odds with certain 
     expectations of federal judicial conduct.

  At this point, it certainly appears that Judge Smith recognized that 
his continued membership in the club was not consistent with the Canons 
of Judicial Conduct.
  After he was nominated to the Third Circuit vacancy last year, Judge 
Smith filled out of the Judiciary Committee's questionnaire. This is 
how he responded to a question about membership in organizations that 
disciminate:

       I previously belonged to the Spruce Creek Rod and Gun Club, 
     a rustic hunting and fishing club which admits only men to 
     membership. I joined the club in 1982 largely for sentimental 
     reasons: it is where my grandfather taught me to fish when I 
     was seven or eight years old. I urged the club, through 
     letters to club officers personal contacts with members, to 
     consider changing its exclusive membership provision. These 
     efforts were unsuccessful. Eventually, in late 1999, I 
     voluntarily resigned my membership.

  It is noteworthy that in this answer, Judge Smith makes no mention of 
the argument that he and his supporters now advance, that he had no 
obligation to resign from the club because it is a purely social club. 
Only when questions began to be raised about his continued membership 
did this argument arise.
  Now I know that there is a dispute about whether business is 
conducted at this club. To be honest, I tend to credit the email and 
statements of Dr. Silverman, a supporter of Judge Smith, who said that 
a medical PAC held meetings there, rather than his letter to the 
committee saying that the events were just picnics, which was written 
after he learned that what he had said might be damaging to Judge 
Smith's confirmation. In my mind, if the club permits its members to 
invite business associates to the club and hold business meetings 
there, that is a club that should not discriminate against minorities 
or women. And the president of the club has confirmed that members can 
hold any meetings they want at the club.
  But for me, that's not the crucial point. The crucial point is that 
this nominee made a commitment to the Judiciary Committee under oath. 
He broke that commitment. And then he compounded his problem by coming 
up with an after-the-fact rationalization for why he broke his 
commitment. Even if he were obviously correct that he need not have 
resigned his membership, I still believe he was untruthful when he 
suggested to the committee that the changes to the Code of Conduct in 
1992 ``afforded me the opportunity to reexamine the entire Code and 
consider it's application to my membership in Spruce Creek.'' I don't 
believe that Judge believed between 1992 and 1999 that his obligation 
had changed after 1992. If he did, I don't think he would have had, and 
I am quoting from his written answers to Senator Schumer's questions:

     numerous conversations with Club officers about changing the 
     by-laws. In fact, in practically every conversation I had 
     with members of the Club in which we talked of the Club, I 
     recall discussing the by-law issue and advocating change.

  Why would he do that if he thought the club was not engaging in 
invidious discrimination? And why would he say in his resignation 
letter that the club's membership policies: ``continue to be at odds 
with certain expectations of Federal judicial conduct''?
  I have concluded that Judge Smith came up with his argument after 
questions were raised about his failure to resign. Some in the Senate 
may be convinced by this argument that they should ignore Judge Smith's 
failure to follow through on his commitment to the Judiciary Committee 
and the Senate in 1988. I cannot ignore that failure.
  I am afraid that this is not the only instance where Judge Smith has 
come up with after-the-fact rationalizations of his behavior that don't 
hold up under scrutiny. At his hearing, I asked Judge Smith about 
numerous trips he had taken to judicial education seminars paid for by 
corporate interests. Judge Smith indicated that had studied and been 
guided by Advisory Opinion No. 67, which instructs judges to inquire 
into the sources of funding of such seminars before attending them in 
order to be sure that there was no conflict of interest. I asked him if 
before he went on the trips he had inquired about the source of funding 
sponsored by The Foundation for Research on Economics and the 
Environment, known as FREE, and the Law and Economics Center of George 
Mason University, known as LEC. Judge Smith answered the question with 
respect to FREE, saying that he remembered inquiring more than once 
about FREE's funding by telephone.
  So I asked him a follow-up question in writing about whether he made 
a similar inquiry about the funding for seminars put on by the Law and 
Economics Center at George Mason University. Judge Smith gave an 
amazing answer. He said that because the trips were sponsored by a 
university, he had no obligation to inquire about the source of 
funding, and he claimed that he reached that conclusion in 1992 and 
1993 when he was taking these trips.
  Both ethics professors with whom I consulted state in no uncertain 
terms that Judge Smith is wrong in his interpretation of the ethical 
obligations of a judge who wishes to go on one of these trips. As 
Professor Gillers states: ``Obviously, there would be room for much 
mischief if a judge invited to an expense-paid judicial seminar could 
rely on the non-profit nature of an apparently neutral sponsor to 
immunize the judge's attendance. Judge Smith is therefore wrong in his 
assumption.''
  I believe if Judge Smith really reached this conclusion with respect 
to LEC at the time of the hearing, he would have told us when he 
answered my question at the hearing. His written response to the 
follow-up question indicates that he in fact did not understand the 
import of Advisory Opinion No. 67, then, or now. I find that very 
troubling. It undercuts his assurances to me at the hearing that he 
would refrain from taking additional trips until he was ``satisfied 
that funding does not come from a source that is somehow implicated in 
a case before him.'' I don't know how I can rely on that assurance.
  In addition, there is the question of Judge Smith's failure to recuse 
himself in two cases in 1997--SEC v. Black and United States v. Black. 
These are very complicated cases, so I sought the advice of two legal 
ethics experts. After reviewing Judge Smith's testimony and written 
answers to questions and all of the other materials submitted to the 
Judiciary Committee on this issue from both supporters and opponents of 
Judge Smith, both Professor Gillers and Professor Freedman conclude 
that Judge Smith violated the judicial disqualification statute, 28 
U.S.C. Sec. 455, by not recusing himself earlier in SEC v. Black, and 
by not recusing himself immediately upon being assigned the criminal 
matter in United States v. Black. Professor Freedman called his 
violations ``among the most serious I have seen.''
  I was particularly disturbed by Judge Smith's failure to disclose his 
financial interest in the bank involved in the case to the parties in 
the criminal case. He told them about his wife's employment and that he 
had recused himself

[[Page 15447]]

in the civil case. But he didn't give the parties full and complete 
information upon which they could base a decision whether to ask him to 
recuse himself. This was Judge Smith's obligation, in my view.
  In my opinion, these ethical questions individually raise serious 
concerns about Judge Smith's fitness to serve as a Circuit Court judge. 
Together, they are very significant. I cannot support a nomination 
plagued by such an ethical cloud, despite all of the heartfelt support 
he has received. I will therefore, reluctantly, vote no.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Nevada.


                           Order of Procedure

  Mr. REID. Madam President, on behalf of the majority leader, I ask 
unanimous consent that following the vote on the matter now pending, 
Judge Smith, we proceed to H.R. 5010, the Department of Defense 
appropriations bill.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCAIN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. I object to proceeding until I see the managers' 
amendment.
  Mr. REID. There is no managers' amendment.
  Mr. McCAIN. On DOD appropriations?
  Mr. REID. No.
  I yield to my friend from Alaska.
  Mr. STEVENS. We offered a list of amendments to staff. We informed 
the staff and we will be happy to show them the amendments when we see 
the amendments that Senator McCain intends to offer.
  Mr. REID. I also say that I misspoke. The majority leader does not 
need unanimous consent on his behalf.
  I say to my friend from Arizona, as we have talked on a number of 
occasions on previous bills, any package of managers' amendments the 
Senator from Arizona will have a chance to review.
  I withdraw the unanimous consent request and announce on behalf of 
the majority leader that following the vote on Judge Smith, the Senate 
will move to H.R. 5010, the Department of Defense appropriations bill.
  Mr. BYRD. Reserving the right to object, and I will not object, let 
me say to the distinguished Senator from Arizona, that not only he will 
see the managers' amendments, but I will insist on the managers' 
amendments being read on all appropriations bills for the attention of 
the full Senate.
  Mr. McCAIN. Reserving the right to object, I thank the Senator from 
West Virginia.
  We have had many occasions where late at night managers' amendments 
were agreed to without anyone ever having seen or heard of them. And I 
would still like to see the managers' amendment before some time late 
tomorrow night when everyone wants to get out of here and leave and I 
am the bad guy again. I want to see what is in the managers' amendment 
package.
  It is not an illegitimate request to see the managers' amendment 
package before they vote on final passage, which then puts us in the 
uncomfortable position of having to be delayed. I think it is a fair 
request on the part of the taxpayers of America to see what we are 
voting.
  Mr. REID. I yield to the Senator from Alaska.
  Mr. STEVENS. Madam President, I am informed that 20 minutes ago those 
amendments went to Senator McCain's office and we have not seen his 
amendments. We ask that we see his amendments, too. We cannot put a 
managers' package together until we see them all.
  Mr. REID. Madam President, I ask the Senator from Arizona, do you 
have any problem with DOD appropriations after this vote?
  Mr. McCAIN. I don't.
  I would like to say, any amendment that I have will be debated and 
voted on. I don't have the privilege of proposing a managers' 
amendment.
  Mr. REID. Has the Senator withdrawn his objection?
  Mr. BYRD. Parliamentary inquiry.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. The Senator does not need consent, does he? The consent has 
already been given some days ago.
  Mr. REID. As has been explained to me, the majority leader at this 
time--and I--can call this up, but would have to be, as I understand 
it, some later time.
  I am asking for a time certain and that is why the Senator from 
Arizona, as I understand, has no problem bringing it up after this next 
matter.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I ask for the yeas and nays on the pending nomination.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is, will the Senate advise and consent to the nomination 
of D. Brooks Smith, of Pennsylvania, to be United States Circuit Judge 
for the Third Circuit? On this question the yeas and nays have been 
ordered and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES, I announce that the Senator from North Carolina (Mr. 
Helms) is necessarily absent.
  I further announce that if present and voting the Senator from North 
Carolina (Mr. Helms) would vote ``Yea''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 64, nays 35, as follows:

                      [Rollcall Vote No. 202 Ex.]

                                YEAS--64

     Allard
     Allen
     Bayh
     Bennett
     Biden
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Carnahan
     Carper
     Chafee
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Domenici
     Dorgan
     Edwards
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Kohl
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--35

     Akaka
     Baucus
     Bingaman
     Boxer
     Cantwell
     Cleland
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Leahy
     Levin
     Lieberman
     Mikulski
     Murray
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--1

       
     Helms
       
  The nomination was confirmed.

                          ____________________