NOW Opposes Nomination of D. Brooks Smith to Federal Court

April 24, 2002

Based on Judge D. Brooks Smith's recent answers to the Senate, the National Organization for Women has escalated its opposition to his nomination to the Third Circuit Court of Appeals.

"Like defeated appellate court nominee Charles Pickering, Sr., D. Brooks Smith is a poster boy for why a judicial code of ethics is important. These judges just can't seem to follow the rules," said NOW President Kim Gandy. "It is clear from his answers to Sen. Schumer that Smith still doesn't get it. He doesn't understand why a judge who belongs to a club that excludes women may have difficulty ruling on cases of sex discrimination."

Until 1999, Judge Smith remained a member of a club that discriminates against women, knowingly violating the judicial code of conduct. The discriminatory practices of private clubs, where business deals and valuable personal contacts are often made, are a significant barrier to the advancement of women in business and professional life. That is why the National Organization for Women (NOW) has worked tirelessly for over 30 years to open up the memberships of such organizations.

It is particularly important that federal judges adhere to ethical bans on membership in clubs that discriminate. Federal judges are entrusted to decide some of the most sensitive and difficult questions of human and civil rights. Victims of discrimination need to know that judges hearing their case are intolerant of discrimination in all its forms.

That is why Canon 2(C) of the Code of Conduct for United States Judges, the binding ethical rules applicable to federal judges, specifically prohibits federal judges from being members of clubs that invidiously discriminate on the basis of race, sex, religion or national origin. While the Code permits a judge to remain a member of such an organization while making "immediate and continuous" efforts to change the organization's discriminatory practices, this process cannot take more than two years. After two years, if an organization still has not changed its policies, a judge must "resign immediately."

Judge Smith recognized at the time he was appointed as a federal district judge in 1988 that he was a member of a club that invidiously discriminates against women members. He recognized in 1988 that "adherence to [ethical canons] would require my resignation from the club" and promised the U.S. Senate that he would "take affirmative steps" to open the club to women and resign if these efforts failed. Despite the specific two-year time limit in the Code of Conduct, and his promise to the Senate Judiciary Committee that he would act quickly, Judge Smith remained a member of this organization as a district court judge for 11 more years, until late 1999.

Judge Smith's unethical and inexplicable decision to remain a member of a club that discriminates against women is particularly troubling in light of a speech he gave to the Pittsburgh Chapter of the Federalist Society in 1993, condemning the federal Violence Against Women Act (VAWA). "More evidence that he just doesn't get it," said Gandy.

NOW hopes that the Senate will take into account Judge Smith's record and defeat his nomination to the Third Circuit, particularly since the latest revelation comes on the heels of information about "ethical lapses" in his handling of a bank case in which he and his wife had a financial interest, and his record-breaking number of junkets—the largesse of anti-environmental groups. "The Senate must not back down from their responsibility to reject unfit nominees to the federal court," said Gandy. "They must stand strong in the face of right-wing pressure."

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