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Mr. Chairman, I will vote NO on the nomination of D. Brooks
Smith. Let me take a few minutes to explain my decision.
First, I want to say to the Committee, and particularly to
the Senator from Pennsylvania, who I know cares deeply about
this nomination, that I did not reach this decision lightly.
After this vote, we will have considered 64 judicial nominations
in this Committee and I will have voted against only three.
This will be only the second Court of Appeals nominee I have
voted against in Committee, while I have voted in favor of
11 circuit court nominations.
I also want to again commend the Chairman for the way that
he has handled this nomination. Once again, the pressure has
been intense, and the criticism quite harsh. It is my view
that a process that gives a nominee a hearing, and then a
vote in this Committee is not an unfair process, it is the
way this Committee is supposed to work.
During the previous six years, the 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 is
about to. Those nominees were mistreated by the Committee.
Regardless of the outcome here today, Judge Smith has not
been mistreated. I commend Chairman Leahy for doing what he
can to set a new course on this committee, even though most
supporters of the Presidents' nominees do not give him credit
for that.
Mr. Chairman, I chaired the hearing that we held on Judge
Smith. He is obviously a very intelligent man, and a 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 he has misled this 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 come to our courts 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 they will agree with, 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 Sen. Schumer, Judge Smith
states: "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 members of the club that I would support and attempt
- an application for membership from a woman. Failing that,
I believe that I would be required to resign.
I think it would be necessary for me to await an annual
meeting which is, as I understand it - and I preface it
with "as I understand it" because I have not been
an active member in any real sense of the word, but I believe
there to be an annual meeting every April - and I believe
I would have to await that point in time to at least attempt
a bylaws amendment.
Now I suppose that our former colleague Senator Heflin, who
was a state Supreme Court judge earlier in his career, could
have nailed him down even tighter than we did. But we don't
have to do that in this Committee Mr. Chairman. This 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 this 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 Court 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 our committee's questionnaire.
This is how he responded to a question about membership in
organizations that discriminate:
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 for 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 and 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 here. The crucial
point is that this nominee made a commitment to the 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'm quoting here from his written
answers to Sen. 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
on this committee may be convinced by this argument that they
should ignore Judge Smith's failure to follow through on his
commitment to the Committee 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 followup 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 Prof. 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."
Mr. Chairman, 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 followup 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, Mr. Chairman, 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, which is why 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 Committee on this issue from both supporters
and opponents of Judge Smith, both Prof. Gillers and Prof.
Freedman conclude that Judge Smith violated the judicial disqualification
statute, 28 U.S.C. § 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 about the fact that he had recused
himself in the civil case. But he didn't give the parties
full and complete information upon which they could base a
decision whether to ask him to recuse himself. This was Judge
Smith's obligation in my view.
In my opinion, Mr. Chairman, 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.
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