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WE HAVE stressed the need for an expeditious and fair judicial
confirmation process, one in which issues raised about nominees
can be evaluated without character assassination. D. Brooks
Smith, a U.S district judge whose nomination to the 3rd Circuit
Court of Appeals is due to be considered today by the Senate
Judiciary Committee, has had such a process. The committee
has explored a number of ethical issues in which Judge Smith's
record is troubling. His responses as questions have arisen
have only made matters worse. Consequently, he should not
be confirmed.
For years, Judge Smith was a member of a fishing club whose
bylaws exclude women. Before the Judiciary Committee in 1988,
when nominated for the district bench, he acknowledged that
norms of judicial ethics forbid membership in such an organization,
and he committed himself to quitting the group if unable to
persuade it to change its rules. On becoming a judge, he did
urge change. He did not, however, resign. Not, that is, for
11 years -- until the judgeship for which he has been nominated
became vacant. Judge Smith now argues that the rules, in fact,
did not require him to quit, but that argument is a stretch.
And even were he correct, the Judiciary Committee should still
look askance at his blithe disregard for the commitment he
made to senators last time around.
Judge Smith also failed to recuse himself in a timely fashion
from a case involving a bank for which his wife worked and
in whose parent company he and his wife owned substantial
amounts of stock. The bank was not a party to the litigation.
But it quickly became clear that the bank had potentially
enormous liability. Yet Judge Smith remained on the case and
issued a significant ruling before finally recusing himself.
Finally, Judge Smith has offered an unacceptable defense of
his attendance at privately funded judicial junkets. Among
the many seminars Judge Smith attended was one sponsored by
the Law and Economics Center at George Mason Law School; among
the center's numerous contributors was a company that had
pending litigation before Judge Smith and in whose favor he
later ruled. Judge Smith, however, contends that he had no
duty under the ethics rules even to ask who was funding the
trip. This flatly contradicts the judiciary's ethical guidance
on the subject.
Cumulatively, such infractions paint a picture of a judge
who has pushed ethical lines and then sought to rewrite the
rules retroactively to justify his behavior. It isn't a pattern
the Senate ought to reward.
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