Court Choice Cleared With Democrats' Help
12-7 Vote Frustrates Liberal Groups

The Washington Post
Friday, May 24, 2002
Edward Walsh

The Senate Judiciary Committee approved the nomination of Judge D. Brooks Smith to a federal appeals court yesterday with the crucial help of three Democrats who defied an intense lobbying campaign against the nomination by a coalition of liberal interest groups.

Sens. Joseph R. Biden Jr. (D Del.), Herb Kohl (D Wis.) and John Edwards (D N.C.) joined the panel's nine Republicans in voting for the nomination to the U.S. Court of Appeals for the 3rd Circuit, handing President Bush an important victory in the ongoing battle over the
makeup of the federal judiciary.

Smith's opponents said they were disappointed by the 12 to 7 vote but vowed to continue to fight the nomination when it moves to the Senate floor. "We are going to continue to battle," said Ralph G. Neas, president of People for the American Way.

"The case [against Smith's nomination] is overwhelming," added Douglas T. Kendall, executive director of the Community Rights Counsel, a public interest law firm.

But conservative groups praised the committee action.

"The Judiciary Committee properly rejected the false and misleading charges leveled against this decent, highly qualified judge," said Sandy Rios, president of Concerned Women for America.

Smith, 50, the chief judge of the U.S. District Court for the Western District of Pennsylvania, had attracted the strongest opposition of any Bush judicial nominee since the Judiciary Committee, on a straight 10 to 9 party line vote in March, rejected the nomination of U.S. District Judge Charles W. Pickering Sr. to the 5th U.S. Circuit Court of Appeals.

Smith's critics accused him of a serious ethical lapse in the handling of one case and of espousing an overly narrow view of the powers of the federal government. They also said his decisions too often have sided with business against the interests of others.

But the strongest criticism of Smith centered on his membership in the Spruce Creek Rod and Gun Club, a fishing and hunting organization that excludes women. As part of his 1988 confirmation to the district court, Smith promised the Judiciary Committee that he would resign from the club if he failed to win a change in its bylaws to admit women. Smith resigned from the club, which remains closed to women, in 1999.

Laying out the Democratic case against Smith, Judiciary Committee Chairman Patrick J. Leahy (D Vt.) said the judge had "flagrantly broken" his promise to the committee. He said that to elevate him now to an appeals court would send "a bad message." Leahy and others also cited Smith's failure to recuse himself immediately from a case involving a bank where his wife worked and in which he had a substantial financial interest.

Yesterday's meeting took place in a subdued atmosphere. Committee Republicans, apparently confident that they would prevail, said little before the vote.

Of the three Democrats who supported Smith, Biden's vote was the most surprising. He had vowed to "do everything I can to defeat" the nomination if he thought Smith was ducking questions.

Yesterday Biden said, "I'd like to vote against this guy" but "I don't have a sufficient reason" to do so. He said he would impose tougher standards for Supreme Court nominees.