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Senator warns of filibuster
Wednesday, February 27, 2002
By Ann McFeatters, Post-Gazette National Bureau
WASHINGTON -- District Court Judge D. Brooks Smith of Altoona, fighting hard to win Senate confirmation as President Bush's nominee for the 3rd U.S. Circuit Court of Appeals, still faces a barrage of questions from Sen. Joseph Biden, who warned yesterday that he would filibuster against the judge on the Senate floor if Smith were not "candid" in his replies.
Time ran out at yesterday's hearing for Smith before the Senate Judiciary Committee, as several senators who said they still had questions for the nominee had to hasten to the floor for votes. Smith's hearing finally was adjourned when Biden, D-Del., was delayed, and Smith was told that he would get a batch of written questions next Tuesday. But the impact of answers to written questions is rarely as great as an open hearing's give-and-take between lawmakers and witnesses.
Pennsylvania's two Republican senators, Arlen Specter and Rick Santorum, both spoke strongly on behalf of Smith, 50, whom President Ronald Reagan named to the District Court in 1988, when the nominee was 36. Santorum said Smith has "incredible support" from an "incredible array" of people," including 17 members of Congress. He said "national interest groups" -- representing environmental, civil rights and women's issues -- were "weighing in" to try to discredit the judge.
Smith was accompanied by a phalanx of supporters, including nearly a dozen lawyers. Among the group were Timothy Lewis, a former 3rd Circuit judge who returned to private practice in 1999, quitting the seat that Smith has been nominated to fill; Duquesne University law professor Ken Gormley; and Reps. Melissa Hart, R-Bradford Woods, and William Coyne, D-Oakland.
The concerns raised yesterday over Smith's nomination were from Democrats and focused on three areas: His legal seminar attendance at resorts, judicial philosophy and his delay in recusing himself in a controversial case.
Sen. Russell Feingold, D-Wis., characterized the 12 seminars at resorts around the country that Smith attended as intended to influence judges in cases affecting large corporations. Feingold said only four other federal judges have attended more such seminars.
Smith responded that it is his job to hear "different points of view on a daily basis; it's what we're about. I can hear these points of view without being influenced."
When Feingold asked why Smith hadn't reported the seminars' value, which were estimated to be worth about $30,000, the judge said it was his understanding that he didn't have to. He said he had made "more than one phone call" to try to discover the seminars' funding and learned that they came from 'dead men's [foundation] money.'"
When Feingold noted that Bethlehem Steel had been a sponsor of at least one and that Smith had presided in several cases involving that company, the judge said he hadn't been aware of that sponsorship. But Smith sought to assure the committee that in the future, "until I can be satisfied that funding is not a problem, I won't attend" such seminars.
Biden asked about a 1993 speech that Smith gave to the Pittsburgh Federalist Society, in which Smith raised constitutional questions about the Violence Against Women Act. The measure, which the senator had sponsored, gave women the right to seek federal court redress under civil rights laws. The Supreme Court later struck down part of the law.
In his speech, Smith had laid out a view of federalism asserting that if the Constitution doesn't specifically grant a power to the federal government, Congress can't pass a law dealing with it. Some critics suggest that if such a view were to prevail on the federal bench, it would negate many civil rights and environmental laws.
Biden said he accepted Specter's word that Smith has the temperament and character for the appellate job, but he still had other questions for Smith. Biden said that if he felt Smith were not being candid or advanced the argument that he couldn't discuss issues that might come before him, "I'll filibuster on the floor of the Senate" to defeat Smith, even though he had "never taken that step in my life." Biden and Smith appeared to differ sharply in their view of states rights vs. federal rights.
Several senators asked Smith why he hadn't recused himself sooner in a case involving a U.S. Securities and Exchange Commission's suit against former Altoona investor J. Gardner Black, now serving 41 months in jail for defrauding 75 school districts through risky investments. Black's bank, Mid-State, which employed Smith's wife and in which the couple had at least $100,000 of stock, was involved in the case, though not a direct party. Still, the bank later had to pay a settlement of $51 million to the districts.
Because it was not a party to the suit, Smith said, he saw no sufficient reason to recuse himself under federal law until he saw a report by Dick Thornburgh, the case's trustee and a former Pennsylvania governor and U.S. attorney general. Thornburgh said the bank might be more involved in the case than it had seemed at first. Smith said he had issued rulings in the case for a month, some of which seemed to favor the bank, "with the belief that Mid-State Bank was nothing more than a depository."
Four days after receiving Thornburgh's report, he recused himself, citing his wife's employment but not his own financial interest. The law does not require judges to give a reason for stepping aside.
Later, Smith also presided for about five months in a criminal case the federal government brought against Black until the defendant himself requested that the judge recuse himself.
Smith's supporters maintain that he acted properly. But under continued Feingold questioning, Smith himself said, "With the benefit of hindsight, I wish I had recused earlier."
Specter noted that of 5,298 cases Smith has handled as a federal judge, only 526 were appealed and 53 reversed -- just about a 10 percent reversal rate. That, he said approvingly, is less than the 11.7 percent rate for the 3rd Circuit as a whole.