- The Washington Times - Thursday, May 23, 2002

How many different attacks will liberals try against D. Brooks Smith? As many as it takes, no matter how desperate they look in the process.

Brooks Smith, a federal district judge since 1988, is nominated to the Third Circuit Court of Appeals. He is a former state judge and district attorney who spent years in private practice, and he was unanimously confirmed by the Senate when he was nominated to the district court. In short, he is well-qualified.

Beyond that, he has passed the Senate Democrats' moving goal post tests. His ABA rating, which they have called "the gold standard by which judicial candidates are judged?" The highest possible. Support of home state senators? Sens. Arlen Specter and Rick Santorum want him confirmed. Consensus nominee? No one really knows what that means, but eight Democrats in his state's congressional delegation also want him confirmed. As do all 10 of his colleagues on the district court, the board of the Women's Bar Association of Pennsylvania, the U.S. attorneys for his district under every president since Jimmy Carter, and more than a few senators.

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

First it was Judge Smith's ethics. He briefly presided over a case involving an investment adviser who had defrauded several municipalities and school districts out of millions. He issued an order relating to the distribution of funds, and when it became clear that the bank his wife worked for might become involved, he removed himself from the case.

Judge Smith withdrew on his own initiative at the first hint of a possible not actual conflict. His order merely followed the recommendation of the Securities and Exchange Commission and the funds' trustee. Did he recuse himself quickly enough? Neither the parties in the case, their attorneys, nor the trustee of the funds have questioned his ethics. Was the order proper? Besides following a recommendation, it did not shield the bank from liability, nor did it benefit him or harm the victims of the fraud.

Judge Smith was also attacked for attending legal seminars conducted by various groups. But those seminars, with programs that are ideologically diverse and intellectually demanding, serve to educate judges about the latest developments in the law, and judges like Judge Smith and Justice Ruth Bader Ginsburg generally agree that they are a valuable resource. Moreover, when the judge attended seminars, he followed the highest ethical standards.

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

Just one problem. Actually, several problems. Spruce Creek is a serious Pennsylvania hunting and fishing club, not a place where business transactions are conducted. And if the liberals at NOW had read the code, 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 after, in his words, "agitating for several years" about a change in the membership policy. While a nominee to the district court, he said he would attempt to change the policy and resign if he failed. That's exactly what he did even though the code didn't require it.

This says more about the far-left's obsession with social engineering than anything else. Sporting clubs all over the country limit membership to one sex or the other, and they surely irritate liberals to no end. But 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 could not.

With that attack falling flat as well, liberals switched to Plan C. Sen. Charles Schumer is now reportedly grilling Judge Smith about his personal views on the Supreme Court's Griswold decision. But the judge made it clear that he would follow Supreme Court precedent, which is what really matters. Mr. Schumer may want judges to bring their personal views into play, but being a fair and impartial jurist means leaving that extraneous baggage outside the courthouse. By going beyond qualifications, temperament, and commitment to following the law, Mr. Schumer shows how willing the liberals are to grab something anything as an excuse for voting against Judge Smith.

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 liberals 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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