- The Washington Times - Tuesday, February 26, 2002

A truly rare event occurs today in the U.S. Senate Judiciary Committee a hearing on one of President Bush's appeals court nominees. Only three of even the first 11 nominees named last May have been so blessed.

On the other hand, a now-familiar pattern of abuse is emerging as the far left tries to smear another honorable man and distinguished nominee. This time it's D. Brooks Smith, chief U.S. district judge for the Western District of Pennsylvania and nominee to the U.S. Court of Appeals for the Third Circuit.

Judge Smith has experience in private practice, as a prosecutor, an elected state court judge (receiving both Democratic and Republican nominations), and 14 years as a federal judge. He has served on criminal-procedure rules committees for both the state and federal judiciaries and on the board of directors of the Federal Judges Association. He is a former board member of the Salvation Army and the county Legal Services Corp., Domestic Abuse Project and Society for Crippled Children and Adults. The liberal American Bar Association gave him its highest rating for appointment to the appeals court.

All of this, and the fact that the Constitution lets presidents appoint judges, is apparently not enough. The far left believes judges exist to impose a political agenda, to deliver the political goods. In their world, judges base decisions on political interests rather than the law; they are just supposed to rule the right (or, rather, the left) way in the end. That's why a nominee's personal opinions, values, beliefs and ideology are so important and why they believe only liberals are qualified to be federal judges.

Their attacks on Bush nominees aim to keep individuals not liberal enough off the bench today and to dissuade the president from nominating someone not liberal enough to the Supreme Court in the future. The truth alone, however, won't accomplish the goal. Hence the smear.

The liberal Washington Post's Sept. 17 editorial about appeals court nominee Charles Pickering (the Judiciary Committee votes on him Thursday) correctly described the elements of the smear campaign. It's an "ugly affair" in which the nominee's attackers focus "not on his qualifications, temperament, approach to judging or on the quality of his judicial work." Instead, they try to "paint him" a particular way they believe will make ordinary people recoil and senators vote no.

"To do so," The Post said, "they have plucked a number of unconnected incidents from a long career. None of these incidents, when examined closely, amounts to much, but opponents string them together, gloss over their complexities and self-righteously present a caricature of an unworthy candidate." It's actually worse than that. When examined closely, it's obvious the far left actually distorts and even makes up those unconnected and irrelevant incidents that form the fake caricature.

They accuse Judge Smith, for example, of failing to recuse himself soon enough in a 1997 lawsuit against an investment adviser who had defrauded school districts and municipalities. Some of the funds had been deposited in a bank employing Judge Smith's wife and in whose parent company the Smiths owned stock. Judge Smith did recuse himself a few weeks into the case. He did so on his own; neither party in the case asked him to. Nor was he required to because the bank was not a party in the case and his wife worked in an unrelated department. Yet Judge Smith's attackers know most normal folks don't know the vagaries and standards of judicial recusal decisions and won't be able to evaluate their false claims.

Judge Smith issued an order that half of the defendant's funds which had been frozen be distributed to the defrauded clients. His attackers' spin is that he maintained the freeze on the other half of the funds. Beyond being just a silly half-empty-or-half-full spin game, they never say that releasing the funds was not Judge Smith's idea at all. He approved the joint recommendation of the Securities and Exchange Commission and Richard Thornburgh, former Pennsylvania governor and U.S. attorney general, who had been appointed trustee and alone controlled the funds.

You'd think that, if anyone, the plaintiff would be most sensitive about Judge Smith's brief involvement in this case. Yet the plaintiffs' lawyer wrote in the Feb. 22 Pittsburgh Post-Gazette that "we are not aware of any impropriety, or even appearance of impropriety, on the part of Judge Smith."

This pattern is clear and disturbing. Some Washington-based group makes a distorted and misleading charge, and those in Western Pennsylvania who know the truth have to set the record straight. Writing in the Feb. 17 Post-Gazette, two Democratic members of the Western Pennsylvania bar wrote that other deceptive claims by Judge Smith's attackers "are misinformed at best" and part of a "dangerous political strategy." Writing in the Feb. 14 issue, the Women's Bar Association of Western Pennsylvania endorsed Judge Smith "without reservation" in response to a feminist group's false claim.

The Washington Post's observation about the Pickering nomination applies across the board: "The need on the part of liberal groups and Democratic senators to portray him as a Neanderthal all the while denying they are doing so in order to justify voting him down is the latest example of the degradation of the confirmation process." Today's hearing on Judge Smith and Thursday's vote on Judge Pickering are the chance to change course before it's too late.

Thomas L. Jipping is director of the Free Congress Foundation's Judicial Selection Monitoring Project.

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