|
Urging the United States Senate to reject the nomination of
Judge D. Brooks Smith to the Third Circuit Court of Appeals.
WHEREAS, The nomination of Pennsylvania district
court Judge D. Brooks Smith to the Third Circuit Court of
Appeals in Philadelphia was voted out of the US Senate Judiciary
Committee on May 23, 2002 by a of 12-7; and
WHEREAS, Judge Smith's nomination is opposed
by a wide range of public interest organizations. Among the
organizations that have formally expressed opposition to Smith's
appeals court nomination are People For the American Way,
Leadership Conference on Civil Rights, NAACP, Alliance for
Justice, National Organization for Women, Community Rights
Council, National Women's Law Center, NARAL, Earthjustice,
ADA Watch Action Fund, National Partnership for Women &
Families, Planned Parenthood, Defenders of Wildlife, National
Employment Law Association, Committee for Judicial Independence,
NOW Legal Defense and Education Fund, Disability Rights and
Education Defense Fund, Feminist Majority, Friends of the
Earth, Bazelon Center for Mental Heath Law, National Disabled
Students Union, and the National Council of Jewish Women;
and
WHEREAS, Judge Smith's membership in a discriminatory
club, his failure for ten years-in violation of governing
ethical standards-to resign from the club despite his commitment
to do so during his district court confirmation hearing, and
the contradictory explanations he has offered for his actions
all raise serious issues about Smith's judgment, willingness
to follow rules, and candor; and
WHEREAS, Ethical questions have been raised
regarding a highly publicized bank fraud case involving millions
of dollars of public school money. Judge Smith continued to
preside over and issue orders in the case, even though the
fraud claims implicated a bank at which his wife was an employee
and in which he had substantial financial interests. Several
years later, he took on a related case, recusing himself only
after he was requested to do so by one of the attorneys in
the case, revealing only his wife's involvement and not his
own financial interest. On March 14, 2002, after reviewing
the facts and the arguments by Smith and his defenders, noted
legal ethics professor Monroe Freedman wrote to the Senate
Judiciary Committee that Smith committed "repeated and
egregious violations of judicial ethics" and that Smith
had been "disingenuous before this Committee in defending
his unethical conduct." Professor Freedman concluded
that as a result, Smith is "not fit to serve as a Federal
Circuit Judge"; and
WHEREAS, Since his appointment in 1989, Judge
Smith has been reversed by the court of appeals to which he
has been nominated 51 times. This is a larger number of reversals
than any of the judges approved and rejected by the Senate
Judiciary Committee during this Congress for appellate court
posts, including Judge Charles Pickering. More important than
the number of these reversals, however, is their nature. Many
of these reversals concern civil and individual rights, and
reflect a disturbing lack of sensitivity towards such rights
and a failure to follow clearly established rules of law and
appellate court decisions; and
WHEREAS, A number of Smith's reversals have
concerned discrimination or other claims by employees. For
example, in Wicker v. Consolidated Rail Corp., 142
F.3d 690 (3rd Cir.), cert. denied, 525 U.S. 1012 (1998), the
court of appeals unanimously reversed Smith's decision to
dismiss a suit by Conrail employees who claimed that years
of on-the-job exposure to toxic chemicals was making them
sick. Smith had concluded that their lawsuit was barred because
they had signed a waiver as part of a settlement of unrelated
injury claims against the railroad. The appellate court ruled
that Smith's ruling was contrary to the Supreme Court's interpretation
of federal law; and
WHEREAS, The Third Circuit unanimously reversed
Smith's decision in Ackerman v. Warnaco, 55 F.3d 117 (3rd
Cir. 1995), in which he upheld a company's unilateral denial
of severance benefits to more than 150 employees after they
were laid off; and
WHEREAS, In Colgan v. Fisher Scientific Co.,
935 F.2d 1407 (3rd Cir.), cert. denied, 502 U.S. 941 (1991),
the appellate court unanimously reversed Smith for granting
summary judgment against an age discrimination claim as untimely
by ruling that the statute of limitations began to run not
when the employee was terminated, but instead when he simply
received a negative performance review; and
WHEREAS, In Schafer v. Board of Public Educ.
of the School Dist. of Pittsburgh, Pa., 903 F.2d 243,
250 (3rd Cir. 1990), the Third Circuit unanimously reversed
Smith for dismissing a claim that a school district's family
leave policy improperly allowed only women, not men, to take
unpaid leave for "childrearing" as well as childbirth.
Based on such decisions, the National Employment Lawyers Association
has opposed Smith's confirmation, explaining that his record
displays "an attitude inimical to employee and individual
civil rights"; and
WHEREAS, In other reversals involving individuals
or other plaintiffs against government or corporations, the
Third Circuit has specifically criticized Smith for abusing
his discretion or failing to follow the law. For example,
in Urrutia v. Harrisburg County Police Dept., 91 F.3d
451, 456-457 (3rd Cir. 1996), the appellate court found that
Smith had "abused his discretion" in refusing to
allow a prisoner to amend a complaint contending that he had
been repeatedly stabbed while handcuffed and in the custody
of police officers who looked on while failing to take any
action; and
WHEREAS, In Metzgar v. Playskool, 30
F. 3d 459, 462 (3rd Cir. 1994), three Reagan appointees reversed
Smith for dismissing a claim involving death by asphyxiation
of a 15-month-old child who had choked on a toy, noting that
they were "troubled by the district court's summary judgment
disposition" of his parents' claims; and
WHEREAS, In In re Chambers Development Company,
148 F.3d 214, 223-225 (3rd Cir. 1998), concerning a claim
against a county utility authority, the Third Circuit took
the extraordinary step of issuing a writ of mandamus - an
unusual direct command to a judge to rule a certain way -
against Judge Smith, who had "ignored both the letter
and spirit of our mandate" in a prior ruling in the case.
As the court of appeals explained, this was a "drastic
remedy" that is utilized only "in response to an
act amounting to a judicial usurpation of power"; and
WHEREAS, Judge Smith has also been criticized
for rulings not later reversed on appeal. For example, the
Washington Post expressed concern about his decision in United
States v. Commonwealth of Pennsylvania, 902 F. Supp. 565
(W.D. Pa. 1995), aff'd, 96 F.3d 1436 (3rd Cir. 1996), in which
the federal government had sued the state over allegedly substandard
conditions in a facility for persons with mental disabilities.
As the Post put it, although "care was, in Judge Smith's
words, 'frequently not optimal' - maggots were found in one
resident's ear, ants on others' bodies - the judge found these
to be 'isolated incidents'" and concluded there was no
constitutional violation. In another case, Quirin v. City
of Pittsburgh, 801 F. Supp. 1486 (W.D. Pa. 1992), the
National Employment Lawyers Association (NELA) found that
Smith had improperly applied the "aggressive" standard
of "strict scrutiny," which is reserved for claims
of racial, ethnic, and religious discrimination, to strike
down an affirmative action policy designed to remedy past
discrimination against women. As NELA concluded, such rulings
"show a disturbing pattern of disregard and hostility
for the rights of minorities and protected classes,"
now therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF PHILADELPHIA,
That we hereby strongly urge the United States Senate to reject
the nomination of Judge D. Brooks Smith to the Third Circuit
Court of Appeals.
FURTHER RESOLVED, That we hereby urge Pennsylvania
Senators Specter and Santorum to withdraw their support for
the confirmation of Judge D. Brooks Smith to the Third Circuit
Court of Appeals.
BE IT FURTHER RESOLVED, That a copy of this
resolution be sent to all members of the United States Senate
as evidence of the grave concern by this legislative body.
Introduced by
Councilman Angel L. Ortiz
Adopted by the City Council of Philadelphia
Thursday, June 6, 2002
|
