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The Senate Judiciary Committee is expected to vote this week
on President Bush's nomination of Judge D. Brooks Smith to
the Third Circuit Court of Appeals in Philadelphia. We have
serious concerns about Smith's interpretation of the Constitution,
his fairness in employment discrimination and other cases
against large companies, and his judicial ethics. We urge
the committee to reject his nomination.
As a trial judge, Smith has been reversed by the Third Circuit,
the court he now seeks to join, more than 50 times. Too often
it has been for wrongly dismissing the claims of workers and
consumers. In one overturned ruling, he threw out an age discrimination
case
filed by a factory worker on timeliness grounds. Although
the worker had made the 300 day deadline from the time he
was dismissed, Smith counted back from the day he had received
a poor performance evaluation. In another case in which he
was reversed, Smith was too quick to throw out a suit by the
parents of a 15 month old child who choked to death on what
the parents alleged was a dangerous toy.
He has taken an extremely narrow view of Congress' power
to legislate under the Commerce Clause, which has often been
used to pass laws protecting civil rights. If the Commerce
Clause were reduced to what Smith says the founders intended,
little more than an authorization to "eliminate trade
barriers," blacks, women and other groups that have relied
on the protections afforded them under the mainstream interpretation
of the clause would be stripped of important rights.
Equally troubling is Smith's expansive reading of the Fifth
Amendment's takings clause, which is increasingly popular
with property owners challenging health and safety and environmental
regulations. In a case involving the Coal Industry Retiree
Health Benefit Act, Smith ruled that forcing a company to
pay benefits that retired miners had rightfully earned would
constitute an illegal taking of the company's property, an
interpretation other courts
have roundly rejected.
Smith's record also contains significant ethical lapses.
One case that he presided over for a time, and issued orders
in, involved a bank in which his wife was an officer and in
which he and his wife had $100,000 or more in stock. Under
federal law he had an obligation to
recuse himself, since his impartiality "might reasonably
be questioned."
When Smith was up for confirmation to the trial court, he
conceded that his membership in the all male Spruce Creek
Rod and Gun Club violated the code of conduct for judges,
and promised the Senate that if he was unable to persuade
it to open its doors to women, he would resign. Instead he
remained in the club for more than a decade, although it continued
all that time to discriminate.
Smith's defenders accuse Senate Democrats of wanting to reject,
or delay acting on, all of Bush's nominees. Judiciary Committee
members should not be intimidated by those charges. The fact
is, the Senate has quietly confirmed 57 nominees since last
July, including nine for federal appeals courts. The concern
about Smith is not that he is a Bush
nominee, but that his record shows him to be unqualified for
the appellate bench. His nomination should be rejected.
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