Tags: Judicial | Nominee | Smith | Advances

Judicial Nominee Smith Advances

Thursday, 23 May 2002 12:00 AM

Smith, tapped by President Bush to serve on the U.S. Court of Appeals for the Third District, waited 255 days after his nomination for a vote by the committee.

Serving as a U.S. District Court judge in the Western District of Pennsylvania for the past 14 years, Smith has the support of every member of the federal bench in his state and the entire Pennsylvania congressional delegation. Even attorneys and defendants he has ruled against submitted written statements to the committee urging Smith's confirmation.

"Today's vote to recommend Judge Smith for promotion to the appeals court was extremely disappointing," said Ralph Neas, president of the liberal advocacy group People for the American Way.

Neas charged that Smith's former membership in an all-male fly-fishing club shows that he "discriminates against women." Democrats planned to use Smith's former membership in that club as evidence of his "insensitivity to women."

But the ranking Republican on the committee, Sen. Orrin Hatch of Utah, responded quickly to the charge.

"To attempt now to taint Judge Smith as being insensitive to women's rights or interests is really beyond the pale of fair-mindedness, if not decency," he said in a prepared statement. "Judge Smith was under no obligation to make efforts to open the club to women ... or to resign from the club. But he did both."

The Supreme Court ruled in the 1984 case of Roberts vs. Jaycees that single-sex clubs do not discriminate against members of the opposite sex, and are protected by the First Amendment guarantee of "freedom of association" as long as the club is organized primarily for social and not business purposes.

Justice Sandra Day O'Connor noted that such clubs' primarily social purposes would be "undermined if they were unable to confine their membership to those of the same sex, race, religion, or ethnic background."

"The truth is that Judge Smith is supported in the strongest possible terms by the women leaders and members of the Women's Bar Association of Western Pennsylvania, the Allegheny County Bar Association, and the Blair Bedford Domestic Abuse Advisory Board, to name a few," Hatch continued.

In fact, that women's legal group gave Smith their "Susan B. Anthony Award" for his "commitment to eradicating gender bias in the court system." The officers of the organization said that they had never received a single complaint concerning the nominee.

"Last week, I warned that if this is the kind of thing that this committee uses as an excuse for thwarting the president's judicial nominations, then the American people will have a big laugh at our expense," Hatch recalled, "and rightly so."

Democrats apparently heard the warning.

Smith was expected to meet with a fate similar to that of fellow conservative and "strict constructionist" Judge Charles Pickering, whose nomination the Judiciary Committee did not forward for consideration by the full Senate.

Three successive 10-to-9 party line votes kept Pickering's nomination from being forwarded with a positive recommendation, with no recommendation, and even with a negative recommendation.

But when the time for the vote came, Biden, Kohl and Edwards supported a full Senate hearing and vote for Smith.

That action is the latest volley in a war of words and press releases regarding Bush's conservative nominees to the appellate courts. Senate plurality leader Tom Daschle Wednesday issued a warning to the White House.

"We hope to be able to fill more judicial vacancies. But we will not confirm without question the nominations of people whose views and records put them outside of the mainstream, or those who show hostility to settled law," he said, referring to the Supreme Court's Roe vs. Wade decision on abortion.

Daschle pointed out that of the 57 nominees considered by the Judiciary Committee so far, only one - Pickering - has been rejected. He and other Senate Democrats have argued that more nominees have been confirmed for Bush than were confirmed for President Bill Clinton in an equal period of time.

But attorney Thomas Jipping, senior fellow in legal studies with Concerned Women for America, says those arguments are misleading.

"The only proper comparison is confirmation rates, not confirmation totals," he explained, "because [all] presidents don't make the same number of nominations."

Jipping pointed out that while previous presidents, including Clinton, have seen an average of 92 percent of their appeals court nominees confirmed during their first two years in office, only 30 percent of Bush's nominees have been confirmed thus far.

Hatch called the vote "an opportunity to show that this committee is focused on the merits of President Bush's nominees, and is not out to obstruct them in the name of sensibilities far from the mainstream of the American people."

John Nowacki, director of legal policy at the Free Congress Foundation, says he's pleased that some Democrats were able to look past the liberal ideological opposition and vote based on Smith's qualifications.

"His ABA rating - called the 'gold standard' by Democrats - is the highest possible, he has strong support from members of both parties, and despite repeated attempts to smear him, his reputation is still excellent," Nowacki said.

"The last time the full Senate voted on Judge Smith, he was unanimously confirmed," he added. "Smith is well-qualified, the members of the Senate know it."

Neas says he hopes Smith's nomination will be defeated on the Senate floor.

"The fight against this nomination is not over," he said.

Smith's nomination will be placed on the Senate calendar and brought up for debate and a confirmation vote at the sole discretion of Daschle.


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Smith, tapped by President Bush to serve on the U.S. Court of Appeals for the Third District, waited 255 days after his nomination for a vote by the committee. Serving as a U.S. District Court judge in the Western District of Pennsylvania for the past 14 years, Smith has...
Thursday, 23 May 2002 12:00 AM
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