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May
14, 2002 10:00 a.m.
Schumer’s
Attack
The
New York Democrat takes aim at a Republican judge.
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 wo
months after the defeat of judicial nominee Charles Pickering, there are
signs that another of President Bush's choices for the federal appeals
courts might be in more trouble than previously thought. This time the
nominee is D. Brooks Smith, a federal district judge in Pennsylvania who
is up for a place on the Third Circuit Court of Appeals.
Smith was nominated
last September and had a confirmation hearing before the Senate Judiciary
Committee in February. During that time, Democrats raised a relatively
small number of objections to him. Last year, criticism focused on a legal
case involving a bank where Smith's wife worked. Smith briefly presided
over pre-trial motions in the case before recusing himself, and critics
accused him of waiting too long to leave the case. More recently, Smith
came under fire for not resigning from the Spruce Creek Rod and Gun Club,
an all-male sports club, for several years after his confirmation as a
district judge. The National Organization for Women said Smith's actions
showed a "reckless disregard for judicial ethics guidelines"
which "calls into question his ability to fairly rule on cases involving
civil rights."
The bank-case controversy
has largely disappeared in the absence of any evidence that Smith did
anything improper. The sports-club issue also received little attention
— especially after Smith's defenders pointed out that former President
Jimmy Carter also belonged to the club. But lately, Democratic objections
to Smith appear to have morphed into a generalized critique that Smith
has, in the words of the liberal interest group Alliance for Justice,
"a tendency to favor corporate and other powerful interests over
the interest of ordinary Americans, including some of the most vulnerable
populations in this country."
Now Smith is under
another, possibly more serious attack, this time from Judiciary Committee
member Charles Schumer. The New York Democrat has held hearings to promote
the idea that the Senate can refuse to confirm judicial candidates on
the basis of a nominee's ideology alone, rather than any disqualifying
factors in the candidate's past. For months, Schumer has been peppering
Smith with questions about Griswold v. Connecticut, the
1965 Supreme Court decision which struck down a state ban on selling contraceptives.
Using reasoning that many scholars have found dubious, the Court based
its action on a constitutional right to privacy, and the Griswold
decision later served as the foundation for the Court's ruling in Roe
v. Wade. On several occasions, including at his confirmation hearing,
Smith has said he will faithfully follow the precedent set by Griswold.
But Schumer has not been satisfied by Smith's pledges and has instead
pressed Smith to say that he will not only abide by Griswold as
a legal precedent but that he also personally believes in the reasoning
behind the decision.
Last Friday, Schumer
sent a letter to Smith which began, "I am writing to you a third
time to ask that you answer questions regarding your judicial ideology."
Specifically, Schumer continued,
In my last round
of questions I asked "whether you believe the Supreme Court was
wrong in Griswold v. Connecticut because I am interested
in how you personally read and interpret the Constitution." I further
asked that you articulate why you thought the Court was right or wrong
in Griswold.
You answer indicated
that you believe there is a right to privacy in the Constitution, but
your answer was followed by citations to Griswold and Roe.
That was followed by a list of the Constitutional amendments in which
the Supreme Court has held the right of privacy is found. It appears
you are simply saying that the right to privacy exists because the Supreme
Court has said it exists. That is a fine answer if you are a judge issuing
an opinion in a case, but it is inadequate as a judicial nominee seeking
elevation to a court of appeals where you will be presented with questions
of first impression and where your decisions will rarely be accepted
for review by the Supreme Court.
In a passage that
almost seems designed to antagonize Smith, Schumer continued:
To make this as
simple an exercise as possible, I want you to imagine it is 1965 and
you are a Supreme Court justice. The Griswold opinion has not
yet been written. Chief Justice Warren turns to you in conference and
asks you for your opinion on whether there is a right to privacy in
the Constitution and why. He further asks you to articulate how that
right, if it exists, should be applied in Griswold. Please provide
your answers to those inquiries.
Smith's reply, delivered
on Monday, was brief — and sure to leave Schumer unsatisfied. "As
I have stated before, I have always believed there is a right to privacy
in the Constitution," Smith wrote:
I am assuming from
your questions that you presume I have some personal quarrel with Griswold
v. Connecticut. Let me assure you that I absolutely do not. Furthermore,
nothing in my long record as a judge can be taken as a criticism of
Griswold. If confirmed, I would never hesitate to follow Griswold
and apply it in cases that come before me.
Schumer's letter
is disturbing to Republicans because it seems to move the examination
of judicial nominees into new territory. Under what may become a new test
for judicial nominees, it is no longer enough for a candidate to swear
that he will follow the law; he instead has to say he believes that certain
laws — Griswold, Roe, and a few others — are good
and well-reasoned laws. "Schumer wants to get Smith to say that he
personally feels the Griswold decision is the right decision,"
says one key GOP aide. "Trouble is, any good jurist would have difficulty
making that statement. A good jurist would argue that stare decisis
[the authority of established legal precedent] applies. But it's another
thing to ask whether a judge would have come up with the same decision
under the same circumstances."
There is a division
of opinion among Republicans about the seriousness of the threat to Smith.
Administration officials remain confident that he will be approved by
the committee, although perhaps not unanimously. Some Republicans on the
Hill believe that Democrats will not exert great effort to kill the nomination,
in part because Smith is a favorite of Republican Judiciary Committee
member Arlen Specter. "It's really illogical for them to go after
Specter's guy," says the aide. "Is Brooks Smith a guy they so
desperately want? They're going to have other judges down the pike who
are much more controversial than Smith."
On the other hand,
there are worries that Democrats are planning what another aide calls
a "silent kill" for Smith. "They made such a big deal of
killing Pickering," the aide says. "Can they do this without
fanfare and media attention? We've got to raise hell if they try to do
that."
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