|
THE
WASHINGTON POST
Questions for Judge Smith
Tuesday,
February 26, 2002
; Page A20
THE SENATE Judiciary Committee today takes up the nomination of D.
Brooks Smith to the 3rd Circuit Court of Appeals. Judge Smith, who
currently serves on a federal district court in
Pennsylvania
, has not sparked the same hot controversy as President Bush's nominee to
the 5th Circuit, Charles Pickering. But senators ought not let his
nomination slip through without probing carefully certain aspects of Judge
Smith's record.
They might start with his opinion in United States v. Pennsylvania
-- a case in which the federal government sued the state over allegedly
substandard conditions in a home for the mentally retarded. Though 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" redressed by the
facility, and he concluded that there was no constitutional problem. Judge
Smith's decisions have often been reversed by the court to which he has
been nominated. In one case, for example, the 3rd Circuit wrote that he
had "ignored both the letter and spirit of our mandate."
Senators should also ask him about a speech he gave in 1993 on
federalism. During the
Clinton
administration, conservatives blasted appeals court nominee Richard Paez
for a speech that, in passing, criticized a nascent ballot initiative in
California
repealing affirmative action. If intrusion into the political process is
the issue, Judge Smith's remarks make those of Judge Paez seem tame. The
Smith speech was an argument against the constitutionality of the Violence
Against Women Act, then pending in Congress. Portions of that law did have
problems and were later struck down by the Supreme Court. But Judge
Smith's speech is particularly disturbing for the remarkably constricted
vision of federal power that he embraces. The power to regulate commerce
-- a pillar of much federal civil rights law -- was intended by the
Founders only "to permit the national government to eliminate trade
barriers," he said. Judge Smith went on to lay out his own
"brief principles for determining the scope of federal jurisdiction.
First, ask whether the subject matter at issue is within the power of the
national government by express delegation in the text of the Constitution,
or impliedly through a historically honest reading of the necessary and
proper clause. If not, stop!" Senators should ask him how such an
understanding can be squared -- if it can -- with modern civil rights and
environmental statutes.
Finally, Judge Smith should be given an opportunity to clear the air
about his decision to preside over a case involving a bank at which his
wife was an officer and in whose parent company the two owned large
amounts of stock. While the bank was not a party to the litigation, its
financial interest in the case seems -- at least in retrospect -- obvious.
Judge Smith, however, did not initially recuse himself, and some of his
rulings before he finally did so seemed to be in the bank's interests.
|
