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The left keeps trying -- and failing -- to smear Brooks Smith

By John Nowacki
web posted May 20, 2002

How many different attacks will left-wingers come up with as they try to block D. Brooks Smith's confirmation? Answer: As many as it takes, no matter how desperate they look in the process.

D. Brooks Smith
Brooks Smith

Brooks Smith, a federal district judge in the Western District of Pennsylvania since 1988, has been nominated to be a U.S. Circuit Judge for the Third Circuit. He's currently the Chief Judge of his court and is a former state judge who spent years in private practice. Smith was unanimously confirmed by the Senate when he was nominated to the district court, and this time around, he's received a "well-qualified" rating from the American Bar Association. In short, he's exactly that: well-qualified.

But beyond that, he's passed all the Senate Democrats' moving goalpost tests. ABA rating, which Judiciary Committee Chairman Patrick Leahy calls "the gold standard by which judicial candidates are judged?" The highest possible. Support of home state Senators? Senators Specter and Santorum want him confirmed. Consensus nominee? Well, no one really knows what that means, but eight Democrats in his state's congressional delegation want him confirmed, too. As do all ten of his colleagues on the district court, the board of the Women's Bar Association of Pennsylvania, every U.S. Attorney for his district under every President since Carter, and more than a few members of the U.S. Senate.

Nevertheless, Smith is in the Left's crosshairs, and the usual suspects have been busy doing the usual things. They've tried attack after attack, each one fizzling out before being replaced by Plan B, or C, or eventually Plan D. It's beginning to look ridiculous.

First it was Smith's judicial ethics. He briefly presided over a case involving an investment advisor who had defrauded several municipalities and school districts out of millions. It eventually became clear that the case would involve the bank Smith's wife worked for, and he removed himself from the case. Before that became apparent, he issued an order relating to the distribution of funds. Smith's critics say he acted unethically.

Nonsense. Smith recused himself on his own initiative at the first hint of a possible - not actual -- conflict. His order relating to the funds merely followed the recommendation of the SEC and the funds' trustee. So did he act quickly enough? The parties in the case seem to think so; neither they nor their attorneys nor the trustee of the funds have questioned his ethics.

Was the order proper? Of course. Besides following a recommendation, it didn't shield the bank from liability at all, and it didn't benefit him or harm the victims of the fraud.

The other half of the ethics attack involved attendance at legal seminars conducted by various legal groups. But those seminars have programs that are ideologically diverse and intellectually demanding. Seminars serve to educate judges about the latest developments in the law, and judges generally agree that they're a valuable resource - judges like Smith, a Republican appointee, and Ruth Bader Ginsburg, a Democrat appointee. And when Smith attended seminars, he followed the highest ethical standards.

After that attack fell apart, the left-wingers switched to Plan B: ethics and "invidious discrimination." The Pennsylvania chapter of the National Organization for Women claimed Judge Smith violated the Judicial Code of Conduct by having once been a member of the Spruce Creek Rod & Gun club, which limits membership to men. In its complaints, the NOW chapter mentioned the difficulties women face when excluded from clubs where business deals and contacts are made, and that Smith didn't resign when, after he became a judge, the club didn't change its policy.

Just one problem. Actually, several problems. First, Spruce Creek isn't a place where business transactions are made, either at its events or on its property. It's a serious Pennsylvania hunting and fishing club - a purely social group. And if the left-wingers at NOW had read the Code of Judicial Conduct, they'd know that such a club, with a purely social purpose, "cannot be said to practice invidious discrimination." In other words, no ethical violation. Not even close.

Second, Judge Smith did resign from the club, in 1999. He resigned after, in his words, "agitating for several years" about a change in the male membership policy. While the club had long accepted women as guests in its activities, Smith tried over the years to get them accepted as members. In fact, when he was up for his district court judgeship, Smith said he'd try to change the membership policy and would resign if he failed. That's exactly what he did - in spite of the fact that the Code of Judicial Conduct didn't require it.

What makes this attack especially ludicrous is that it says more about the far-left's obsession with social engineering than anything else. There are sporting clubs all over the country that limit membership to one sex or the other, and it's hard to believe this doesn't irritate left-wingers to no end. But the situation with Spruce Creek is actually a point in favor of Judge Smith, who went the extra mile in trying to change the policy and leaving when he found he couldn't.

With this second attack failing like the first, with fingers crossed the Left has switched to Plan C. According to Byron York at National Review, Senator Charles Schumer is grilling Smith over whether he personally believes the Supreme Court's ruling and rationale in the Griswold privacy rights case was correct. But Judge Smith has made it clear in his hearing and responses to Schumer that he would follow Supreme Court precedent, and that's really all that matters. While Schumer may want judges to bring their personal views into play as judges, their role requires them to leave that extraneous baggage outside the courthouse and be fair and impartial jurists. Schumer obviously hopes that the Democrats' ideological litmus test will be a bar to Smith's confirmation, and may insist that a judge or nominee who won't discuss his personal views doesn't belong on the federal bench. By going beyond Smith's qualifications, temperament, and commitment to following the law, Schumer shows how willing the left-wingers are to grab something -- anything -- as an excuse for voting against Smith's nomination.

After endless rooting around in his unpublished opinions, and one unsuccessful attack after another, Brooks Smith's reputation is still excellent. His qualifications are still among the best, and he still merits confirmation.

The Pickering nomination showed how far left-wingers are willing to go to defeat a Bush nominee. The Smith nomination shows just how desperate they are willing to look while trying.

John Nowacki is Director of Legal Policy at the Free Congress Foundation.

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