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Pa. chapter says D. Brooks Smith belonged to biased gun club for 11 years after saying he would quit

Friday, April 05, 2002

By Ann McFeatters, Post-Gazette National Bureau

WASHINGTON -- The embattled nomination of U.S. District Judge D. Brooks Smith for the 3rd U.S. Circuit Court of Appeals gathered more opposition yesterday, as the Pennsylvania chapter of the National Organization for Women said he should not be confirmed.

Pennsylvania NOW President Kathy Miller said she was speaking on behalf of the group's 27,000 members in saying Smith was "unfit to serve as a federal appellate judge," in part because he continued to belong to a gun club that discriminated against women for 11 years after he promised the Senate that he would either change the club's policy barring women members or resign.

Smith, 50, of Altoona, said in a questionnaire last year that he had joined the men-only Spruce Creek Rod and Gun Club in 1982 largely out of sentiment because his grandfather had taught him to fish there when he was a child. The club, in Huntingdon County, is one of the most prestigious fishing clubs in Pennsylvania, boasting some of the state's best fly fishing, and has hosted presidents, including former President Jimmy Carter, who has written about it and made it his first vacation stop after leaving the White House.

Smith described it to the Senate in 1988 as a "rather small and rather informal and non-business-related type of club."

But although Smith told the Senate in 1988 before he was confirmed as a district judge that the code of ethics for judges "would require my resignation from the club" if it did not change its policy against admitting women, he admitted last year that he had not resigned until 1999.

Miller said in an interview, "He violated the judicial code of ethics and turned a blind eye to equality and justice for women."

The code of ethics for U.S. judges says that when a judge determines that an organization to which he belongs engages in "invidious discrimination," he or she may make an effort to have the organization discontinue such a practice. If the group fails to do that, within two years of the judge's first learning of the discriminatory practices, he or she "should resign immediately from the organization."

In a letter to Sen. Arlen Specter, R-Pa., a key sponsor of Smith for the Circuit Court, Miller wrote: "A significant barrier to the advancement of women in business and professional life is the discriminatory practices of private clubs, where business deals are often made and personal contacts valuable for business purposes, employment and professional advancement are formed. That is why the National Organization for Women has worked tirelessly for over 30 years to open up the memberships of such organizations."

She said her group also was upset that Smith had displayed "open hostility to the federal Violence Against Women Act," which he criticized in 1993 as federal encroachment on states' rights.

She said she hoped to meet with Specter to persuade him to reverse his endorsement of Smith. A Spector spokesman said he hadn't yet seen the letter. In a Senate Judiciary Committee hearing, Specter and Sen. Rick Santorum, R-Pa., were highly complimentary of Smith and brushed aside concerns expressed at that time by environmental and civil rights groups.

Since President Bush nominated Smith last September for the federal appellate court in Philadelphia, a number of Pittsburgh-area lawyers and judges have raced to his defense.

At the Senate Judiciary Committee hearing, a parade of lawyers called him a competent, fair-minded judge who has proved his credentials during 14 years on the federal bench.

A coalition of 27 environmental, civil rights and women's groups has charged that Smith has been too close to captains of industry, has issued a number of anti-environment rulings and has been reversed on appeal more times than is average for a federal judge.

Another criticism is that he twice failed to recuse himself fast enough in a case involving defrauded Pennsylvania school districts and a bank in which his wife was an officer and in which he had substantial funds.

The National Employment Lawyers Association said it opposes Smith's confirmation because he "has a disturbingly defense-oriented decisional record in many areas, including employment and civil rights cases, and interprets the law in ways that deny justice to individuals."

In accord with White House policy, judicial nominees do not discuss their nominations with reporters.

The Senate Judiciary Committee has not indicated when it will hold a vote on Smith. Most recently, the panel rejected by one vote the nomination of Mississippi District Judge Thomas J. Pickering for a seat on the 5th U.S. Circuit Court of Appeals on a strict party-line vote.

At a recent Dallas fund-raiser after Pickering's defeat, Bush vowed, "We've got to get good, conservative judges appointed to the bench and approved by the United States Senate."