[Pages S11247-S11284]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INNOCENCE PROTECTION ACT
Mr. LEAHY. Mr. President, for more than 2 years, I have been working
hard with Members on both sides of the aisle, in both Houses of
Congress, to address the horrendous problem of innocent people being
condemned to death within our judicial system. This is not a question
of whether you are for or against the death penalty. Many of the House
Members and Senate Members who have joined this effort are in favor of
the death penalty. I suspect the majority of them are in favor of it.
It goes to the question of what happens if you have an innocent person
who is condemned to death.
Our bill, the Innocence Protection Act, proposes a number of basic
commonsense reforms to our criminal justice system; reforms that are
aimed at reducing the risk that innocent people will be put to death.
We have come a long way since I first introduced the IPA in February
2000. At that time, we had four Democratic cosponsors. Now there is a
broad consensus across the country among Democrats and Republicans,
supporters and opponents of the death penalty, liberals, conservatives,
and moderates, that our death penalty machinery is broken. We know that
putting an innocent person on death row is not just a nightmare, it is
not just a dream, it is a frequently recurring reality.
Since the 1970s, more than 100 people who were sentenced to death
have been released, not because of some technicality, but because they
were innocent, because they had been sentenced to death by mistake. One
wonders how many others were not discovered and how many innocent
people were executed.
These are not just numbers, these are real people. Their lives are
ruined. Let me give an example: Anthony Porter. Anthony Porter was 2
days from execution in 1998 when he was exonerated and released from
prison. Why? Not because the criminal justice system worked. He was
exonerated and released because a class of journalism students, who had
taken on an investigation of his case, found that did he not commit the
crime. They also found the real killer. A group of students from a
journalism class did what should have been done by the criminal justice
system in the first place.
Ray Krone spent 10 years in prison. Three of those ten years were on
death row waiting for the news that he was about to be executed. Then,
earlier this year, through DNA testing, he was exculpated and the real
killer was identified. These are two of the many tragedies we learn
about each year.
These situations result not only in the tragedy of putting an
innocent person on death row, but they also leave the person who
committed the crime free. Everything fails. We have the wrong person in
prison. But we have not protected society or the criminal justice
system because the real criminal is still out running free. Often
times, the actual perpetrator is a serial criminal.
Today, Federal judges are voicing concerns about the death penalty.
Justice Sandra Day O'Connor has warned that ``the system may well be
allowing some innocent defendants to be executed.'' Justice Ginsburg
has supported a State moratorium on the death penalty. Another
respected jurist, Sixth Circuit Judge Gilbert Merritt, referred to the
capital punishment system as ``broken,'' and two district court judges
have found constitutional problems with the Federal death penalty.
We can agree there is a grave problem. The good news is that there is
also a broad consensus on one important step we have to take--we must
pass the Innocence Protection Act.
That is why I wanted to let my colleagues know what is happening. As
the 107th Congress draws to a close, the IPA is cosponsored by a
substantial bipartisan majority of the House and by 32 Senators from
both sides of the aisle, including, most recently, Senator Bob Smith of
New Hampshire. A version of the bill has been reported by a bipartisan
majority of the Senate Judiciary Committee. And the bill enjoys the
support of ordinary Americans across the political spectrum.
What would the Innocence Protection Act do? As reported by the
committee, the bill proposes two minimum steps that we need to take--
not to make the system perfect, but simply to reduce what is currently
an unacceptably high risk of error. First, we need to make good on the
promise of modern technology in the form of DNA testing. Second, we
need to make good on the constitutional promise of competent counsel.
DNA testing comes first because it is proven and effective. We all
know that DNA testing is an extraordinary tool for uncovering the
truth, whatever the truth may be. It is the fingerprint of the 21st
Century. Prosecutors across the country rightly use it to prove guilt.
By the same token, it should also be used to do what it is equally
scientifically reliable to do: to establish innocence.
Just like fingerprints, in many crimes there are no fingerprints; in
many crimes there is no DNA evidence.
Where there is DNA evidence, it can show us conclusively, even years
after a conviction, where mistakes have been made. And there is no good
reason not to use it.
Allowing testing does not deprive the State of its ability to present
its case, and under a reasonable scheme for the preservation and
testing of DNA evidence, it should be possible to preserve the
evidence.
The Innocence Protection Act would therefore provide improved access
to DNA testing for people who claim that they have been wrongfully
convicted.
Just last week, prosecutors in St. Paul, MN, vacated a 1985 rape
conviction after a review of old cases led to DNA testing that showed
they had the wrong man--and also identified the actual rapist. Think
how much better society would have been had they caught the real rapist
17 years ago. The district attorney wanted to conduct DNA testing in
two other cases, but the evidence in those cases had already been
destroyed. She has called on law enforcement agencies to adopt policies
requiring retention of such evidence, and that is what our bill would
call for.
Many cases have no DNA evidence to be tested, just as in most cases
there are no fingerprints. In the vast majority of death row
exonerations, no DNA testing has or could have been involved.
So the broad and growing consensus on death penalty reform has
another top priority. All the statistics and evidence show that the
single most frequent cause of wrongful convictions is inadequate
defense representation at trial. The biggest thing we can do is to
guarantee at least minimum competency for the defense in a capital
case.
This bill offers States extra money for quality and accountability.
They can decline the money but then the money will be spent on one or
more organizations that provide capital representation in that State.
One way or another, the system is improved.
More money is good for the states. More openness and accountability
is good for everyone. And better lawyering makes the trial process far
less prone to error.
When I was a State's Attorney in Vermont, I wanted those I prosecuted
to have competent defense counsel. I wanted to reach the right result
in my trails, whatever that was, and I wanted a clean record, not a
record riddled with error. Any prosecutor worth his or her salt will
tell you the same; any
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prosecutor who is afraid of trying his cases against competent defense
counsel ought to try a new line of work, because the whole system works
better if both prosecutor and defense counsel are competent. That is
what I wanted when I was prosecuting cases because I wanted to make
sure justice was done.
The Constitution requires the Government to provide an attorney for
any defendant who cannot afford one. The unfortunate fact is that in
some parts of the country, it is better to be rich and guilty than poor
and innocent, because the rich will get their competent counsel, but
those who are not rich often find their lives placed in the hands of
underpaid court-appointed lawyers who are inexperienced, inept,
uninterested, or worse.
We have seen case after case of sleeping lawyers, drunk lawyers,
lawyers who meet with their clients for the first time on the eve of
trial, and lawyers who refer to their own clients with racial slurs.
Part of the problem, I think, lies with some state court judges who
do not appear to expect much of anything from criminal defense
attorneys, even when they are representing people who are on trial for
their lives. Good judges, like good prosecutors, want competent
lawyering for both sides. But some judges run for reelection touting
the number and speed of death sentences they have handed down. For
them, the adversary system is a hindrance.
The problem of low standards is not confined to elected State judges.
Earlier this year, a bare majority of the Supreme Court held that it
was okay for the defendant in a capital murder trial to be represented
by the same lawyer who represented the murder victim. Most law students
would automatically say that is a conflict of interest, but our Supreme
Court said that was all right. And last year, a Federal appeals court
struggled with the question whether a defense lawyer who slept through
most of his client's capital murder trial provided effective assistance
of counsel.
Fortunately, a majority of the court eventually came to the sensible
conclusion that ``unconscious counsel equates to no counsel at all,''
basically reversing what a State court said when it said the
Constitution guarantees a person counsel. It does not guarantee they
will stay awake.
No law can guarantee that no innocent person will be convicted. But
surely we can do better than this. Surely we can demand more of defense
counsel than that they simply show up for the trial and remain awake.
When people in this country are put on trial for their lives, they
should be defended by lawyers who meet reasonable standards of
competence and who have sufficient funds to investigate the facts and
prepare thoroughly for trial. As citizens, we expect that of our
prosecutors. We ought to expect the same thing of our defense
attorneys. That is all we ask for in the IPA.
I have heard four arguments against the bill. One wonders, with all
these people from the right to the left, all these editorial writers
and Members of Congress from both parties supporting the IPA, what that
tells us.
First, critics claim that the bill is an affront to States' rights.
As a Vermonter, and as a former State prosecutor, I agree that States'
rights are very important. States should have the right to set their
own laws, free of Federal preemption at the behest of special
interests. They should have the right to set their own budgets, free of
unfunded mandates. And their reasonable expectations of Federal funding
for criminal justice and other essential programs should be met, rather
than bankrupting State governments because of Federal tax policy.
The IPA is entirely consistent with these principles of State
sovereignty. It leaves State laws, including the death penalty laws, in
place. It offers States new funding for their criminal justice systems.
And there was a provision added during the committee process
establishing a student loan forgiveness program for prosecutors and
public defenders, something that a lot of State governments say would
help recruit and retain competent young lawyers.
This is one of those cases, like in the civil rights era, where the
rhetoric of States rights is being abused as a code for the denial of
basic justice and accountability. Some States have made meaningful
reforms, but many have not. They have had more than a quarter of a
century and 100 death row exonerations to get their act together, but
they have failed. As many in this body argued in 1996, when promoting
legislation to speed up executions, justice delayed is justice denied.
I agree with that. We cannot wait forever while innocent lives are in
peril.
I have heard a second argument against the IPA, which is that society
cannot afford to pay for these reforms. The truth, however, is that we
cannot afford to do otherwise if we want to maintain confidence in our
criminal justice system. The costs of providing DNA testing and
competent counsel are relatively small, especially when you compare
them to the costs of retrials that are necessitated by the lack of
adequate counsel at trial, or the cost of locking up innocent people
for years or even decades. I am all for efficiency, but the greatest
nation on Earth should not be skimping on justice in matters of life or
death.
I have heard a third argument from a vocal minority of State
prosecutors. They claim the bill would make it unduly difficult, if not
impossible, to seek the death penalty. That is a shocking claim. When I
prosecuted cases, I felt very comfortable prosecuting those cases under
the laws of our State because of two things: I knew that all the
evidence we had, including potentially exonerating evidence, had been
given to the defendant. And I knew I was working in a well-functioning
adversarial system with effective representation on the other side.
That is the way it is supposed to work.
When I hear a prosecutor say that the IPA reforms--enabling DNA
testing and securing adequate defense representation--would make it
almost impossible for him to do his job, it makes me wonder what he
thinks that job is.
Finally, there is one more argument against the bill which is rarely
stated out loud. I call it the ``innocence denial'' argument. We saw
this in the Earl Washington case in Virginia where, despite conclusive
DNA evidence to the contrary, the Commonwealth for years clung to the
hopelessly unreliable and implausible confession of a mentally retarded
man. We see it in claims that ``the system is working'' when an
innocent man is released after years on death row due to the work of
journalism students. And we see it in the often-repeated insistence
that, no matter how many people have been exonerated, no one can prove
that an innocent person has actually been executed.
The innocence deniers will never concede there is a problem. But with
100 known instances of the system failing--and those are only the ones
we know about--it would be surprising if there were not more unknown
cases of innocent people being sentenced to death.
The IPA was passed out of committee in the Senate and is supported by
a majority of the House. We ought to pass it before more lives are
ruined.
As a prosecutor, I never had any hesitation to seek the severest
penalties our State could provide for people who committed serious
crimes. When I look at some of the cases I have reviewed over recent
years, when I see shoddy evidence, or when I see evidence that was not
looked at because it might have pointed to someone else, I wonder, why
wouldn't society want a better system? Passing the IPA will help fix
these problems and give greater credibility to our criminal justice
system.
I yield the floor.
I suggest the absence of a quorum and ask that the time be equally
divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DeWINE. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
TRIBUTE TO SENATOR STROM THURMOND
Mr. DeWINE. Mr. President, I rise today to recognize the
accomplishments of our friend and colleague, Senator Strom Thurmond, an
individual who has devoted his entire life to the service of the
American people and who now stands before us as one of the most
accomplished U.S. Senators in our nation's history.
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I must say that I am saddened that I am making these comments on the
heels of a controversy over the nomination of a highly qualified
judicial nominee, Dennis Shedd, who was a long-time member of Senator
Thurmond's staff and who was recommended to the President for this
appointment by Senator Thurmond. While I won't go into the specifics of
these hollow arguments against Judge Shedd, I cannot make these
comments in praise of Senator Thurmond without mentioning my
disappointment about the handling of Judge Shedd's nomination.
As our colleagues know, Senator Thurmond's nearly 50 years of service
within this body make him the longest serving member since the Senate's
inception, yet his contributions to public service and our Nation
extend well beyond the United States Senate. From the time he served as
Superintendent of Education in Edgefield, SC, Strom Thurmond placed the
good of the Nation ahead of his personal career. He served over 36
years on active and reserve duty within the U.S. Army, while
simultaneously holding many other public service positions.
Throughout, he was prepared to abandon his professional career on a
moment's notice--ready to fight to preserve democracy and freedom. He
was awarded five battle stars, as well as 18 decorations, medals, and
awards, including the Bronze Star for Valor and the Purple Heart.
I have only--I say ``only''--been in the Senate for 8 years, but in
the relatively short time I have had the pleasure of serving in the
Senate alongside Senator Thurmond, we have worked together as sponsors
or co-sponsors of dozens of bills, including legislation enhancing
local law enforcement efforts to protect the elderly and child victims
of violent crime, drug interdiction efforts designed to stem the tide
of drugs flowing into our cities and schools, laws to end the practice
of partial-birth abortion, and constitutional amendments to protect
victims of violence. All of these collaborative efforts have benefited
a great deal from the insight Strom Thurmond developed during his 12-
year tenure as either chairman or ranking member of the Judiciary
Committee and also, of course, his 50 years of service in this body.
While Senator Thurmond's Senate career speaks volumes about his
commitment to this nation and to the people of South Carolina and to
all Americans, I also must mention what a pleasure it has been for me
to know Strom Thurmond as a person.
Over the years, he has shown great kindness and generosity to me and
to my family. In particular, I would like to thank him for the
hospitality he has shown my son, Brian, who recently graduated from
South Carolina's Clemson University.
When I told Strom my son Brian was going to go to Clemson, he beamed.
I could tell he was delighted. He said, You know, I went to Clemson. Of
course I knew that. He said, I went to Clemson. I asked, Strom, What
year did you graduate?
He said, I graduated from Clemson in 1923.
I looked at him. I said, Strom, my dad was born in 1923.
Strom Thurmond has had quite an unbelievable career. I have had the
opportunity, as well, to listen to many of his stories. I asked him
about his tenure at Clemson. He told me about the different times he
would run barefooted from town to town. He was a long distance runner
when he was there.
The great Athenian general Pericles once noted that:
Where the rewards of virtue are greatest, there the noblest
citizens are enlisted in the service of the state.
Our American democracy, like that of the Athenians, is designed to
reward virtue with the opportunity to represent and defend fellow
citizens. Certainly there is no man of our time better fit for and
dedicated to these difficult tasks than Strom Thurmond. Indeed, he is a
tribute to the American ethic of public service that the framers of our
nation envisioned over two centuries ago.
It should come, then, as no surprise to my colleagues in the Senate,
to the citizens of South Carolina, and to the American public that
Strom Thurmond has left an indelible mark on our nation through his
service--a mark that surely will never be forgotten or held in anything
less than the highest regard.
We thank Strom for his service to our country, to South Carolina, and
to the people who will miss his kindness and his friendship. But we
look forward to seeing him, as we are sure we will, for a long time
because he is a man of great courage and great integrity. We will miss
him.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Mr. President, I thank my colleague for his kind remarks
about our great friend, Senator Thurmond. I have been around here 26
years, and Senator Thurmond was the leader on the Judiciary Committee
for most of that time. He has been a tremendous mentor and adviser to
me.
He is a wonderful man. He has gone through so many changes in his
life, and he has had many different experiences in his life. He is
truly a war hero and truly one of the people I think everybody in this
body has to admire. There is no question about it. He is one of the
all-time great Senators. He has represented the State of South Carolina
for all of these years very well.
I can remember traveling through the State with him. Just about
everybody knew Strom, and he knew just about everybody in his State. It
was absolutely amazing to me that a person could be so revered as Strom
Thurmond was--and he deserved it.
He is not only a great man, but he has done great things in his life.
He has done great things having come from the Old South, which has been
highly criticized by many of us in this Chamber.
But let me just take a moment to pay tribute to my good friend and
our distinguished colleague on this committee, the senior Senator from
South Carolina, Strom Thurmond.
From the moment Strom thurmond set foot in the Senate Chamber in
1954, he has been setting records. He was the only person ever elected
to the U.S. Senate on a write-in-vote. That is a reworkable
achievement. He is the longest serving Senator in the history of the
U.S. Senate. As he approaches his 100th birthday, he is also the oldest
serving Senator. Many of my colleagues will recall the momentous
occasion in September of 1998 when he cast his 15,000th vote in the
Senate. With these and so many other accomplishments over the years, he
has appropriately been referred to as ``an institution within an
institution.''
In 1902, the year Strom Thurmond was born, life expectancy was 51
years and today --the last time I heard--it is 77 years. But I think it
is going up regularly. Strom continues to prove that, by any measure,
he is anything but average.
He has seen so much in his life. To provide some context, let me
point out that, since his birth, Oklahoma, New Mexico, Arizona, Alaska
and Hawaii gained Statehood, and eleven amendments were added to the
Constitution. The technological advancements he has witnessed, from the
automobile to the airplane to the Internet, literally span a century of
progress. Conveniences we have come to take for granted today were not
always part of Strom Thurmond's world. Perhaps this explains why during
our Judiciary committee hearings, we have heard him asking witnesses
who were too far away from the microphone to ``please speak into the
machine.''
The story of his remarkable political career truly could fill several
volumes. It began with a win in 1928 for the Edgefield County
Superintendent of Schools. Eighteen years later, he was Governor of
South Carolina. Strom was even a Presidential candidate in 1948,
running on the `Dixiecrat' ticket against Democrat Harry Truman.
I must admit that he has come a long way in his political career,
given that he originally came to the Senate as a Democrat. I am happy
to say that wisdom came within a few short years when Strom saw the
light and joined the Republican Party.
That was supposed to be humorous. But I did not hear any laughter.
When I first arrived in the Senate in January of 1977, he was my
mentor. As my senior on the Judiciary committee, it was Strom Thurmond
who helped me find my way and learn how the committee functioned. He
has not only been a respected colleague, but a personal friend, ever
since.
During his tenure as Chairman of the Judiciary committee, Strom
Thurmond left an indelible mark on the
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committee and the laws that came through it. He became known and
respected for many fine qualities and positions--his devotion to the
Constitution, his toughness on crime, his sense of fairness.
He is also famous for his incredible grip. Many of us have
experienced Strom Thurmond holding our arm tightly as he explains a
viewpoint and asks for our support. I might add that this can be a very
effective approach.
Strom is also known to have a kind word or greeting for everyone who
comes his way, and for being extremely good to his staff--and to all
the workers here on Capitol Hill. No question. He has gone out of his
way.
I might add that I have seen him operate in his own home State and
other places. I have seen him. He has operated in the most even-
mannered, decent, honorable way to people regardless of where they came
from--regardless of their color, their religion, their country of
origin, or any other distinguishing characteristic. Strom has always
been good to everybody.
Despite his power and influence, he has never forgotten the
importance of small acts of kindness.
Strom Thurmond is truly a legend--someone to whom the people of South
Carolina owe an enormous debt of gratitude for all his years of
service. Clearly, the people of South Carolina recognize the sacrifices
he has made and are grateful for all he has done for them. In fact, you
cannot mention the name Strom Thurmond in South Carolina without the
audience bursting into spontaneous applause. He truly is an American
political icon.
Abraham Lincoln once said that:
The better part of one's life consists of friendships.
With a friend like Strom Thurmond, this sentiment couldn't be more
true. I am a great admirer of Strom Thurmond, and, as everyone around
here knows, I am proud to call him my friend.
One final note about Strom Thurmond: He is a great patriot. I am
grateful for his work with me over the years in support of a
Constitutional Flag Amendment. A decorated veteran of World War II who
fought at Normandy on D-Day, Strom Thurmond loves this country. He
loves it very much. Let me just say this country loves him, too.
Strom Thurmond is a wonderful father. He has raised his children to
be very fine people. And they love him as well.
When his daughter died, it was one of the most tragic things I have
ever seen. It was the first and only time I ever saw Strom Thurmond
shed tears. He is such a strong, resilient, patriotic leader. But on
that day, at that funeral, Strom Thurmond broke down, which showed how
much he loved his daughter and his family. I know how much he has. That
is the mark of a great man.
I am glad today, or at least by tomorrow, hopefully, this body will
be able to give Strom Thurmond the only thing he has asked of us, as a
last request, in return for his service: the confirmation of his former
chief counsel, Judge Dennis Shedd, who himself is a wonderful, decent
man.
With that, Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, just so all Senators understand where we
are, I have been told that the cloture vote that was scheduled for this
afternoon has been vitiated. But we will be voting on the Shedd
nomination sometime tomorrow morning.
I see the distinguished Senator from Florida on the floor. Could he
indicate how long he wishes to speak? I was about to begin the debate
on the nomination.
Mr. NELSON of Florida. About 10 minutes.
Mr. LEAHY. Mr. President, I ask unanimous consent that the
distinguished Senator from Florida be recognized for 10 minutes, with
the time divided equally. I make that request, that that 10 minutes of
time be taken equally out of both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Florida is recognized for 10 minutes.
Technology and Freedom
Mr. NELSON of Florida. Mr. President, I come to the floor not to
speak on the Shedd nomination--and I had spoken to the chairman of the
committee--but to speak about a matter we will be discussing tomorrow
as we take up the homeland defense bill and some of the questions of
privacy that have arisen, not necessarily directly involved in this
bill but clearly in the discussion of homeland security.
Some grave questions of invasion of privacy have been noted. So I
felt compelled to take the floor of the Senate to raise further the
issue of governmental intrusion into the private lives of people.
I realize that in this technologically advanced age, in order to go
after the bad guys, in order to be able to stop them before they hit
us, clearly there has to be the clandestine means of penetrating the
communications that are going on. That is very important to the defense
of this country and our citizens. At the same time, the constitutional
rights of privacy must always be foremost in our minds as we battle
this new, elusive kind of enemy called the terrorist.
So I want to offer some words. I start, first, with words from a very
famous American who had something significant to say about privacy,
Justice Louis Brandeis, in which he argued, in a 1928 case, that the
Framers of our Constitution--and I will quote Justice Brandeis:
. . . sought to protect Americans in their beliefs, their
thoughts, their emotions and their sensations.
Justice Brandeis went on, that the Framers of the Constitution had:
. . . conferred, as against the Government, the right to be
let alone--the most comprehensive of rights and the right
most valued by civilized man.
Now, Justice Brandeis wrote those words in a dissenting opinion in a
1928 case involving a liquor dealer who was convicted by evidence
gathered through a wiretap, way back then, early in the last century.
That case arose because technology had granted the Government an
increased ability to peer inside people's private lives--then, in 1928,
a wiretap.
The technology increased governmental authority, forcing the Supreme
Court to evaluate and redefine the boundaries between freedom and
governmental power. The technological advances also stimulated an
important national debate about the balance between individual freedom
and the legitimate needs of law enforcement.
Now we are at a similar crossroads, and those words ring out to us
today as we go about trying to balance the rights between individual
freedom and the legitimate needs of the Government to penetrate
terrorist cells.
Technology has advanced faster than the Nation's norms and the laws
for managing them. Modern technology makes possible unprecedented
intrusions into the private lives of American people. This ability,
coupled with increasing governmental demands to use that technology,
poses a grave threat to personal privacy and personal freedom.
This past week, I was rivetted by the news of the revelations about
how the Department of Defense is developing a computer system to grant
intelligence and law enforcement authorities the power to secretly
access ordinary citizens' private information, including e-mail,
financial statements, and medical records--to access that private
information without the protections of a court order.
Clearly, in this post-9/11 world, we need to develop tools that will
enable our Government to keep us safe from terrorists by disrupting
their operations. But these tools need to be balanced against the
protection of innocent people's right to privacy. If the right to
privacy means anything, it is the right of the individual to be free
from unwarranted governmental intrusion.
So what rivetted my attention were reports, first in the New York
Times, the Washington Post, and then in the Washington Times, that the
so-called Total Information Awareness Program--located in DARPA, deep
inside the Department of Defense--would make possible unwarranted
governmental intrusions such as we have never seen before.
It is disturbing that we are developing a research system that, if
ever used, would violate the Privacy Act as well as violate a lot of
other Federal laws on unreasonable searches of private information
without probable cause, which is the typical standard
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that needs to be met. That is why we go to a judge to get an order
allowing us to intrude on such things as searches, as seizures, on such
things as wiretaps.
I have a serious concern about whether this type of program, called
Total Information Awareness, can be used responsibly. So while we
investigate and learn more about it, I intend to speak out to the
Congress and to the committees on which I am privileged to serve--
including the Armed Services Committee--to speak out that we need to
oversee this program to ensure that there is no abuse of law-abiding
individuals' privacy.
It has been reported that this program is authorized or endorsed by
the homeland security legislation pending now in the Senate. And that
does not appear to be the case. While it doesn't specifically tend to
be the case, this legislation, the Homeland Security Department, does
include a provision creating a research division within the new
Homeland Security Department. It would develop, among other things,
information technologies similar to the Total Information Awareness
Program. While I strongly support funding for new research, and I
certainly believe that we must use our technological advantage to
defeat our enemies, at the same time I think we better take a breath,
be very cautious that any new research done in the Defense Department
or within the new proposed Department of Homeland Security does not
threaten our personal freedoms.
I also have grave concerns that this information awareness program is
being directed by someone who is very controversial: Retired Rear
Admiral Poindexter, the former Reagan administration official who was
convicted in, you remember, the Iran-contra story. There is a very
legitimate question about whether or not he is the appropriate person
to head such a sensitive program.
To quote from recent editions of the Washington Post, specifically
November 16, an editorial:
However revolutionary and innovative it may be, this is not
neutral technology, and the potential for abuse is enormous.
The editorial continues:
Because the legal system, designed to protect privacy, has
yet to catch up with this technology, Congress needs to take
a direct interest in this project.
The editorial goes on:
And the defense secretary should appoint an outside
committee to oversee it, before it proceeds.
The editorial concludes:
Finally, everyone involved might also want to consider
whether Adm. Poindexter is the best person to direct this
extremely sensitive project.
Though his criminal convictions were overturned on appeal,
his record before the Congress hardly makes him an ideal
protector of the legal system. . . .
That is the Washington Post.
In conclusion, ever since I had the privilege to serve with the likes
of these great Senate giants on the floor right now, Senators Leahy and
Hatch, guardians of the Constitution because of their roles on the
premier committee that guards the Constitution in the Senate, privacy
is an issue that has attracted my attention and concern.
Has my time expired?
The PRESIDING OFFICER (Mr. NELSON of Nebraska.) The Senator's time
has expired.
Mr. NELSON of Florida. I ask unanimous consent that I conclude my
remarks in 2 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NELSON of Florida. I thank Senators for letting me make this
case.
When I first came here, I became concerned that back in 1999 we
allowed banks and insurance companies to merge, but we didn't protect
individual's privacy. It would shock people to know that if you go have
a physical exam in order to get a life insurance policy and if that
life insurance company is acquired by a bank, that the access to those
individually identifiable medical records is unlimited, without your
personal consent, to anywhere within that bank holding company.
You might also be interested to know that recently we had the
issuance of rules by the Bush administration on medical record privacy,
but there was a huge omission in that pharmaceutical companies could go
to drugstore chains, pay the drugstore chain for the names and ability
to communicate to individual people who had prescriptions, and then
that pharmaceutical chain could contact that individual patient, asking
them, soliciting them to change their medication to a different kind of
medication, one that would be within the generic equivalent or a
different brand name than the one that the physician had prescribed for
them. That is an invasion of personal privacy. Yet it is allowed under
the rules of the new administration.
Take, for example, the case 2 weeks ago in Fort Myers, FL. Suddenly a
dumpster was overflowing with tax records, bank records, Social
Security numbers, all kinds of personally identifiable financial
information not properly disposed of by the bank subsidiary. The bank
says there is no such law. So I filed a bill to protect individual's
personal financial privacy.
Lo and behold, another invasion of privacy, identity theft, one of
the big things, more recently, in Orlando, FL--another dumpster. Now
all of a sudden, one of the two large pharmaceutical drugstore chains
dumps all of the prescriptions in the dumpster, along with the bottles.
As a result, the personally identifiable medical information is there
for the public to see from someone pilfering the dumpster.
I think I have made my case. Privacy is something we better be
concerned about.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, we have before us the nomination of United
States District Court Judge Dennis Shedd of South Carolina to the Court
of Appeals for the Fourth Circuit.
Judge Shedd's nomination was reported out of the Judiciary Committee
last Thursday on a voice vote. Nine Democratic Senators, including
myself, voted against him. As I noted before, I told Senator Thurmond I
intended to bring this matter to a vote by the committee this year. My
concern at the penultimate meeting, the meeting before last week, a
meeting we held in October, was that we had very little time to debate
this controversial nominee and that threatened to prevent a committee
vote on 17 other of the President's judicial nominees before the
committee.
Incidentally, those 17 district court nominees and 2 circuit court
nominees were confirmed by the Senate last week. Those 17 district
court nominees were on the Senate Calendar because the Senate Judiciary
Committee was able to report those nominees despite unparalleled
personal attacks by Republicans on me as chairman. Those attacks have
included everything from saying I am not bringing up nominees--although
I am and we are at a record rate that far outpaces the Republican rate
during their six and one-half years of control--to even attacks in
these recent months on my religious beliefs as well as the religion of
several of the members of the Democratic majority on the Senate
Judiciary Committee.
Notwithstanding these unprecedented attacks on both our religious
beliefs and our actions, the confirmations last week bring to 99 the
number of President Bush's judicial nominees confirmed by the
Democratic-led Senate in the past 16 months.
I mention this because before that, during the 6\1/2\ years when the
Republican majority controlled the Senate, they averaged 38 judicial
confirmations per year. In fact, in the year 1996, over the whole year,
they allowed only 17 district court judges to be confirmed all year and
did not confirm a single circuit court nominee--not a single one. We
had 17 district court judges in 1 meeting and those 17 nominees of
President Bush were confirmed on one day last week by the Democratic-
led Senate.
I put this in the record so the people understand the historic
demonstration of my bipartisanship toward the President's judicial
nominees in perspective with the recent history of judicial
confirmations. The fact is that in addition to the 83 district court
nominees confirmed, the Senate has also already confirmed 16 of his
circuit court nominees. That is in sharp contrast to the fact that the
Republicans allowed only 7 circuit court nominees to be confirmed per
year, on average, during their control of the Senate. For example, more
than half of President Clinton's circuit court nominees in the
[[Page S11252]]
106th Congress were defeated through such obstruction--more than half.
In fact, the Fourth Circuit--to take one at random--is one of many
circuits affected by the other party's obstruction of President
Clinton's judicial nominees. In the Fourth Circuit, seven of President
Clinton's nominees to that circuit were never given a hearing or a vote
in committee or on the floor--seven out of that one circuit alone.
James Beaty, one of the Fourth Circuit nominees of President Clinton,
did not get a hearing or a vote in 1995, or 1996, or 1997, or 1998.
Another Fourth Circuit nominee, Judge Richard Leonard, did not get a
hearing or vote in 1995 or 1996.
Another Fourth Circuit nominee, James Wynn, did not get a hearing or
a vote in 1999, 2000, or 2001. Other Fourth Circuit nominees--Elizabeth
Gibson, Judge Andre Davis, or Judge Roger Gregory--also did not get
hearings or votes during the period of Republican control of the
Senate.
Indeed, the first hearing the Judiciary Committee held last year on a
judicial nominee was for an earlier Fourth Circuit nominee, Judge Roger
Gregory. He had been nominated initially by President Clinton when the
Republicans were in control. They did not act on him. He was brought
back by President Bush, and he became the first judge confirmed to the
Fourth Circuit in several years. He was also the first African American
confirmed to the Fourth Circuit in American history. That is because
our committee in the Senate acted in the summer of 2001. Judge Gregory
was the first of 20 circuit court nominees on whom we proceeded to hold
hearings in our 16 months in the majority.
So the partisan rhetoric about the Judiciary Committee having
blockaded President Bush's judicial nominees and having treated
nominees unfairly might be a good stump speech on the circuit, but it
is belied by the facts. Frankly, I think the staff at the White House
who have put those kinds of misstatements in the President's speeches
have done the President a disservice, as they have the Senate.
Turning to the nomination of Judge Dennis Shedd to the United States
Court of Appeals for the Fourth Circuit, I cannot fail to note that it
is not without controversy. In fact, it is quite controversial. Issues
in his judicial record raised cause for concern among many Senators on
the Judiciary Committee as well as with many citizens who live in the
jurisdiction of the Fourth Circuit and elsewhere in the country who
have written to the Senate in opposition to his elevation and
confirmation.
While considering the information gathered in the hearing process, I
placed Judge Shedd's nomination on the committee agenda in September.
That was my effort to show Senator Thurmond courtesy as a former
chairman and to signal that I expected this committee to proceed to
consider the nomination before the year was out. Several Senators asked
to hold the nomination over, and under the rules any Senator can.
On October 7, when I hoped to be able to list his name for
consideration again, I was told there would be a debate so lengthy that
we would not even be able to consider the 17 other judicial nominations
of President Bush that were on the agenda or, for that matter, the
legislative matters we were trying to take up before the election. So I
told Senator Thurmond, and other Senators before that markup, it was
for this reason that I would not list Judge Shedd's nomination on the
agenda for the October 8 markup, but I explained to Senator Thurmond
and others that I hoped we would be able to consider it at our next
opportunity, as we knew at that point we would have a lame duck
session. So now, having the lame duck session, I scheduled as soon as
we came back and Senators would be here a markup on Judge Shedd and one
other judicial nominee.
The committee has received more than 1,200 letters from individuals
and organizations, both in and out of South Carolina, expressing
concerns about elevating Judge Shedd. In fact, right here, it stands
about 2 feet high--the stack of letters we got against it. These
letters raise serious issues. What I heard about the nominee from the
citizens of South Carolina and from others around the country was and
is troubling.
I ask unanimous consent to have printed samples of letters such as
those from citizens of South Carolina in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
South Carolina
Legislative Black Caucus,
Columbia, SC, September 4, 2002.
Re Fourth Circuit Nomination of Judge Shedd.
Hon. Patrick J. Leahy,
Chair, Senate Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Dear Senator Leahy: The South Carolina Legislative Black
Caucus (SCLBC) was formed in 1975 soon after the Civil Rights
Movement in the 1960's. Presently, the SCLBC has 31 members:
seven senators and 24 representatives, including four women.
The SCLBC is dedicated to the struggle for fairness, equality
and justice for all South Carolinians, and to the civic and
political involvement of African-Americans, women and other
racial and ethnic minorities.
We seek to preserve the civil rights strides that occurred
in South Carolina over the decades, and we fight to prevent
any regressive step that threatens to rollback civil rights
and constitutional rights of American-Americans, women and
other racial and ethnic minorities. The nomination of U.S.
District Judge Dennis W. Shedd to the U.S. Court of Appeals
for the Fourth Circuit represents such a regressive step, and
accordingly, we strongly oppose the nomination.
African-Americans constitute a full one-third of South
Carolina's population, yet there is only one active African-
American federal judge in the state. And, there are only two
South Carolinian female federal judges, one on the federal
District Court and the other on the Fourth Circuit. This is
unfair and unjustified because there are many well-qualified
African-American and women jurists and lawyers who deserve an
opportunity to serve this nation on the federal judiciary.
Because African-Americans are one-third of South Carolina's
population and the Fourth Circuit has a greater number of
African-Americans than any circuit, it is critical that any
nominee, especially one from South Carolina, be an unabashed
champion of civil rights. The appointee should have a record
that demonstrates fairness and justice to all people. Based
on our careful review of Judge Dennis Shedd's performance on
the U.S. District Court for the District of South Carolina,
we have concluded that his record shows a serious hostility
to civil rights and constitutional protections.
Since his appointment to the federal bench in South
Carolina, Judge Shedd has engaged in right-wing judicial
activism by imposing strict and exacting standards when
reviewing employment discrimination cases brought by African
Americans and women. He has dismissed almost every employment
discrimination, sexual harassment, civil rights and
disability case that has come before him. Judge Shedd seems
to believe that discrimination is not an actionable offense
even when the Equal Employment Opportunity Commission has
found ``reasonable cause'' that discrimination has occurred.
Judge Shedd, however, seems to apply a more lenient standard
in reviewing discrimination cases brought by white men. Judge
Shedd has allowed four out of five ``reverse'' discrimination
cases to proceed beyond the summary judgment phase of
litigation.
This record shows that Judge Shedd does not have an abiding
concern for civil rights and fairness. It further shows that
Shedd lacks the requisite moderate reasoning to bring balance
to the Fourth Circuit. In fact, his membership to the Fourth
Circuit would push it further beyond the mainstream of
American values and would subject South Carolinians and
residents of other states within the Fourth Circuit to an
extreme right-wing interpretation of this nation's civil
rights laws and constitutional protections.
Accordingly, we oppose Judge Shedd's nomination without
reservation. His values represent the Old South, where
African Americans and women were judged by different and
unequal standards.
We appreciate your attention. If you have any questions,
please contact me at the address and telephone number above.
Sincerely,
Joseph H. Neal,
Chairman.
____
South Carolina State Conference, National Association for
the Advancement of Colored People,
Columbia, SC, June 24, 2002.
Senator Patrick Leahy,
Chairman, Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Dear Chairman Leahy: We write to oppose the nomination of
Dennis Shedd to the Fourth Circuit Court of Appeals.
By now, you must be familiar with the importance of the
Fourth Circuit to the African American community. Almost a
quarter of the Fourth Circuit's residents are African
American. The Fourth Circuit, with over 6 million African
Americans in the five states, has the greatest number of
African Americans of any Circuit Court in the country. The
Latino population within the Fourth Circuit now at more than
one million persons, has nearly tripled in the last decade.
Based on
[[Page S11253]]
these demographics, more may be at stake here for the future
of civil rights than in any other Circuit Court in the
country.
The Fourth Circuit is already an extremely conservative
Court on civil rights and Constitutional issues. This Circuit
ruled that federal law-enforcement officials need not follow
the Miranda decision, only to be reversed by the Supreme
Court. This Circuit authorized drug testing for pregnant
women without their consent, which was reversed by the
Supreme Court. This Circuit ruled that the Equal Employment
Opportunity Commission was limited to remedies contained in
employee arbitration agreements, and again, was reversed by
the Supreme Court. The Circuit also has been reversed
recently in capital habeas corpus cases and citizen suits
under environmental laws. The Fourth Circuit has issued
numerous other opinions that are hostile to affirmative
action, women's rights, fair employment, and voting rights.
This is also the Court to which moderate African American
nominees were repeatedly denied membership. No fewer than
four African Americans were nominated to this Court by
President Clinton, only to have their nominations languish
for years due to Senatorial obstruction. Thus, if a nominee
is to be confirmed to this Court, the nominee must be a
jurist who will bring moderation and ideological balance to
this Court. It is our strongly held view that this nominee is
not Dennis Shedd.
Judge Shedd's judicial record reveals a deep and abiding
hostility to civil rights cases. A review of Shedd's
unpublished opinions reveals that Judge Shedd has dismissed
all but very few of the civil rights cases coming before him.
In nearly thirty cases involving racial discrimination in
employment, he granted summary judgment for the employer in
whole or in part in all but one case; most of the cases were
dismissed altogether. Many of these cases were strong cases
with compelling evidence and litigated by experienced civil
rights lawyers.
Gender and disability discrimination cases before Judge
Shedd fare no better. He has granted summary judgment on
every sexual harassment claim on which summary judgment was
requested. Collectively, these rulings leave us with the
distinct impression that, in Dennis Shedd's view of the
world, discrimination does not exist, and just as
importantly, a jury should never be asked even to decide that
question.
We are profoundly disturbed by the mounting evidence of
Judge Shedd's zealous efforts to assist the defense in civil
rights cases. There are repeated instances of Judge Shedd's
intervention in civil rights cases--without prompting by the
defendant--in ways that are detrimental to the plaintiff
case. In a number of cases, Judge Shedd, on his own motion,
has questioned whether he should dismiss civil rights claims
outright or grant summary judgment. He has invited defendants
to file for attorneys' fees and costs against civil rights
plaintiffs. These are not the actions of an impartial
decision-maker.
We are extremely concerned about Judge Shedd's rulings
promoting ``States' rights,'' and view these as a fundamental
encroachment on Congress's ability to enact civil rights and
other legislation. Judge Shedd has a very restrictive view of
Congressional power. He struck down the Driver's Privacy
Protection Act of 1994 as legislation beyond Congress's
power, although this legislation was an ``anti-stalking''
measure designed to prohibit public disclosure of drivers'
license information. In an opinion authored by Chief Justice
Rehnquist, the Supreme Court unanimously overturned Judge
Shedd's ruling and refuted his reasoning. This stands as one
of the few occasions in which the Supreme Court rejected
unanimously a holding that Congress exceeded its power in
enacting a statute.
The question of judicial temperament is raised by Judge
Shedd's offensive remarks during a judicial proceeding about
an issue that strikes at the heart of many--the Confederate
flag. Judge Shedd presided over a federal lawsuit seeking the
removal of the Confederate flag from the dome of the South
Carolina Statehouse. According to press accounts of a hearing
held in the case, Judge Shedd made several derogatory
comments about opposition to the flag. First, he attempted to
marginalize opponents to the flag by questioning whether the
flag matters to most South Carolinians. (It does, and thirty
percent of South Carolina's population is African American.)
He also minimized the deep racial symbolism of the flag by
comparing it to the Palmetto tree, which appears in South
Carolina's State flag.
Our membership in South Carolina, deserves to be
represented on the Circuit by a nominee who has a record of
judicial impartiality, is committed to the progress made on
civil rights and individual liberties, and has a deep respect
for the responsibility of the federal judiciary to uphold
that progress. Dennis Shedd is not that nominee. We urge you
and the Senate Judiciary Committee to vote against his
nomination.
Sincerely,
James Gallman,
President.
Mr. LEAHY. We received a letter from the Black Leadership Forum,
signed by many well-respected African Americans, including Joseph
Lowery, and more than a dozen more internationally known figures, as
well as letters from other African American leaders.
I ask unanimous consent that these letters be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Black Leadership Forum, Inc.,
Washington, DC, September 16, 2002.
Hon. Ernest F. Hollings,
Member of the Senate, Senate Russell Office Building,
Washington, DC.
Dear Senator Hollings: We are writing to share with you a
letter which the Black Leadership Forum, Inc. (BLF), whose
members are listed on the left side of this page, delivered
several weeks ago to members of the Senate Judiciary
Committee. The attached letter strongly opposes the
nomination of Judge Dennis Shedd to a seat on the Fourth
Circuit Federal Court of Appeals, for the reasons stated in
substantial detail.
It has come to our attention that you are actively
supporting Mr. Shedd's nomination and are aggressively
pressing the Judiciary Committee for speedy approval of a
hearing on his nomination by the full Senate. Therefore, we
feel that it is urgent for you to be directly informed by BLF
of the bases for our objections to this nomination. We
reflect in this letter the deep concern in the African
American community about this nomination because Mr. Shedd's
judicial record undercuts our closely guarded values of equal
justice and threatens the maintenance of our civil rights
advances and constitutional protections.
Conversations with numerous African Americans who also are
resident-constituents of your District, indicate that they,
too, believe that this nomination should not go forward. We
sincerely hope, therefore, that we can meet with you
regarding our objections to Mr. Shedd's nomination and that
until we have had this discussion, you will forego any
further actions supporting his nomination. We have called
your office requesting such a meeting prior to a vote by the
Judiciary Committee on this issue.
Love Embraces Justice,
Dr. Joseph E. Lowery,
Dr. C. DeLores Tucker,
Yvonne Scruggs-Leftwich, Ph.D.
____
Rainbow Push Coalition
Chicago, IL, August 24, 2002.
Senator Patrick Leahy,
Member, U.S. Senate, Washington, DC.
Dear Senator Leahy: Let me lend my voice of opposition to
the chorus of discontent surrounding the nomination of Judge
Dennis Shedd to the Fourth Circuit Court of Appeals. I urge
you to oppose the Shedd nomination, based on the merits, and
the merits alone. A seat on the Fourth Circuit is too
important to the nation's judiciary not to be heavily
scrutinized.
As a native of South Carolina, I am deeply disturbed by the
direction taken by the Fourth Circuit in recent years. As a
Judicial Circuit with considerable influence on the Supreme
Court, those elevated to the Court should reflect the highest
American ideals of inclusion and equal protection under the
law. Moreover, the states included in the Fourth Circuit are
comprised of the highest percentage of African Americans,
than any other Circuit, thus judges on the Court must be
sensitive and respectful for the civil rights laws for which
we fought so hard.
Currently, the Fourth Circuit is the most extremist court
in the nation on civil rights issues, criminal justice
issues, and those involving the power of the federal
government, to enact legislation, which holds States
accountable for civil rights violations. The nomination of
Dennis Shedd threatens to take the Court in a further
extremist direction. For example, Judge Shedd's opinion in
the Condon v. Reno case suggests that he favors disempowering
Congress. American judges, and their rulings should protect
rights, rather than restrict the balance of power.
To preserve this nation's ideals of inclusion, and to
ensure equal protection under the law for all Americans, I
urge you, and other members of the members of the Senate
Judiciary Committee to vote ``No'' on the nomination of
Dennis Shedd.
Sincerely,
Reverend Jesse L. Jackson, Sr.
____
National Bar Association,
Washington, DC, September 4, 2002.
Re Nomination of Judge Shedd, United States Court of Appeals
for the Fourth Circuit.
Hon. Patrick Leahy,
Chairman Senate Judiciary Committee, Dirksen Office Building,
Washington, DC.
Dear Senator Leahy: The National Bar Association hereby
submit this letter in strong opposition to the confirmation
of Dennis Shedd to the United States Court of Appeals for the
Fourth Circuit. We strongly urge you to vote to defeat his
appointment to this critical Court.
The National Bar Association, established in 1925 is the
oldest and largest organization of minority attorneys,
judges, legal scholars and law students in the United States
and in the world. During our 77 year history we strive to
obtain equal justice for all persons within the jurisdiction
of these United States of America. Real diversity can only be
achieved as a result of equal justice for all which directly
results in equal opportunity. Real diversity, equal justice,
and equal opportunity does not currently exist in our federal
judiciary.
The National Bar Association maintains a watchful eye on
federal judicial nominations, as part of its' historical
mission. We
[[Page S11254]]
have a duty and obligation to support or oppose any
nomination which directly affects our struggle for equal
justice and equal opportunity for all. During these difficult
times, the United States of America must set an example to
the world by assuring equal justice and equal opportunity to
a truly diverse nation.
The National Bar Association feels, confirmation of Dennis
Shedd to the United States Court of Appeals for the Fourth
Circuit will severely undermine and inhibit its' goals of
equal justice for all, equal opportunity for all, and real
diversity. In our opinion the one thing which insulates the
United States of America from anarchy, civil strife, etc. is
our Construction (as currently amended), which provides an
open judiciary, where any citizen regardless of race, creed,
color, gender, economic status, social status, etc. can seek
redress. Absent an open federal judiciary, citizens will seek
other less civil means to voice their concerns and seek
redress. An open judiciary is the balance for the scales of
justice.
The essential element of an open judiciary is our
constitutional right to trial by jury. This right provides
some assurance of fair and equitable treatment in resolution
of disputes, without political influence of the government.
Therefore, we must oppose federal judicial nominees, when
their actions or beliefs, in any way reduce complete access
to the courts, right to trial by jury, or in any way
discourage access and right to trial by jury.
A review of Dennis Shedd's record appears to indicate a
judicial philosophy to reduce and discourage access to the
courts and exercise of each citizens right to trial by jury.
For these reasons, the National Bar Association strongly
opposes nomination of Dennis Shedd to the United States Court
of Appeals for the Fourth Circuit.
Sincerely,
Malcolm S. Robinson,
President.
____
The National Black Caucus
of State Legislators,
Washington, DC, September 19, 2002.
Re Fourth Circuit Nomination of Judge Shedd.
Hon. Patrick J. Leahy,
U.S. Senate, Chair, Committee on the Judiciary, Dirksen
Senate Office Building, Washington, DC.
Dear Senator Leahy: The National Black Caucus of State
Legislators (NBCSL) is the body that represents some 600
African American state legislators in 44 states, the District
of Columbia and the U.S. Virgin Islands. Last year, we
celebrated our 25th year of involvement and dedication to
many of the most pressing social issues and policies that
impact our legislators' districts and the nation at large.
Our commitment is to our constituents as well as the national
agenda. Our dedicated work is to maintain the highest values
of civil and human rights insuring that African Americans are
a fair and representative part of the political and social
equations of this great nation.
In their letter to you, dated September 4, 2002, members of
the South Carolina Legislative Black Caucus have spoken
clearly and definitively in opposing the nomination of Judge
Dennis Shedd to the Fourth Circuit. In reviewing the
information presented therein and having also researched the
history and record of Judge Shedd, we find it woefully
deficient regarding the issues of fairness, equality and
justice. Moreover, as has been pointed out by our colleagues
in South Carolina ``African Americans constitute a full one-
third of South Carolina's population yet there is only one
active African American federal judge in the state.'' In that
there are unquestionably ``many, well-qualified African
American . . . jurists'' in South Carolina, this is rightly
seen an unfair and unequal treatment in the sight of fair
representation. Further, considering the existent
disproportionate representation of jurist of Color, certainly
an effort must be made to insure that any South Carolina
nominee be a strong advocate of civil and human rights.
Rather, Judge Shedd's performance on the U.S. District Court
for the District of South Carolina demonstrates what could be
construed as hostile to civil and constitutional rights.
We have learned that Judge Shedd's insensitivity to
fairness has been demonstrated in his review of employment
discrimination cases brought by African Americans and in
fact, women, even in such cases when the Equal Opportunity
Commission has found ``reasonable cause.'' But, we have also
found that in furtherance of this questionable action, when
white men bring cases of ``reverse'' discrimination, those
cases proceed. We also note that there have been concerns
raised about the number of unpublished opinion issued by the
Judge and further that such concerns regarding the decisions
were reversed or vacated by the Fourth Circuit Court of
Appeals.
The Fourth Circuit must have a judge who is mindful of the
rightful place that African Americans have in this nation,
and be a strong advocate of civil rights, human rights and
constitutional rights. Any nominee should have demonstrated
his dedication to such virtues and ideals. No other
individuals should be considered for this important position.
For these reasons among others raised by our South Carolina
Legislative Black Caucus, we cannot support the nomination of
Judge Dennis Shedd for the Fourth Circuit and would ask that
the opinion of our body be strongly considered in this
matter. Should you have any questions, or require additional
comment, please contact me.
Very truly yours,
James L. Thomas,
President.
____
Congressional Black Caucus
of the United States Congress,
Washington, DC, July 26, 2002.
Hon. Patrick Leahy,
Chairman, Senate Judiciary Committee, Washington, DC.
Dear Senator Leahy: On behalf of the Congressional Black
Caucus, we write to express our strong opposition to the
confirmation of Dennis Shedd to the United States Court of
Appeals for the Fourth Circuit. We urge you to vote to defeat
his appointment to this critical court.
The Fourth Circuit has the highest percentage of African-
American residents of any federal circuit in the nation. As
you know, President Clinton tried in vain for many years to
integrate the Fourth Circuit by nominating no fewer than four
moderate African-Americans to the court, only to see their
nominations languish. James Beaty and James Wynn from North
Carolina, Andre Davis from Maryland and Roger Gregory from
Virginia were never given hearings before the Judiciary
Committee at any time during the Clinton presidency. It was
not until President Clinton took the extraordinary step of
giving Roger Gregory a recess appointment in the final days
of his Presidency that the last all-White circuit court in
the nation was finally desegregated.
The Fourth Circuit is also the most conservative of the
federal circuits. Its rulings on the rights of those accused
of crimes, employees who face discrimination, and individuals
with disabilities are far outside the judicial mainstream.
Given the importance of the Fourth Circuit to the African-
American community and the current ideological imbalance on
the Court, it is imperative that any nominee to this Court be
a jurist of moderate views who will protect the civil and
constitutional rights of all Americans. Dennis Shedd is not
that nominee.
Above all, we are concerned that any nominee to the Fourth
Circuit be committed to the rigorous enforcement of federal
civil rights laws. We are particularly troubled by Dennis
Shedd's record in this area. Throughout his eleven years on
the federal district court, Judge Shedd has demonstrated a
propensity to rule against plaintiffs in civil rights cases.
Based on our review of Judge Shedd's record, we doubt
seriously whether he can fairly and impartially adjudicate
the claims of persons protected by the federal civil rights
laws.
Despite the fact that employment discrimination cases
comprise a large portion of Judge Shedd's civil rights
docket, Judge Shedd has allowed only few discrimination
plaintiffs to have their day in court. In almost every case,
Judge Shedd has dismissed some or all of the claims of civil
rights plaintiffs before they have a chance to be heard by
the jury. By all evidences, Judge Shedd utilizes an extremely
high threshold of evidence necessary to allow a
discrimination claim to get to the jury. For example, in the
one race discrimination case in which Judge Shedd did not
dismiss at least some of the plaintiff's claims, a White
manager terminated an African-American female employee after
directing racial epithets at her in the presence of a co-
worker. Even with this evidence, Judge Shedd said it was an
``extremely close question'' whether the case should be
dismissed. Given Judge Shedd's characterization of the
evidence in this case, we question his commitment to
following decades of case law recognizing that discrimination
often occurs in much more subtle but no less pernicious forms
and therefore may proven circumstantially. In contrast to
Judge Shedd's systematic dismissal of claims by African-
American plaintiffs, Judge Shedd has allowed ``reverse
discrimination'' claims by White men to proceed to trial in
four of the five cases in which summary judgment was
requested.
Also, in a number of cases, Judge Shedd has overruled a
magistrate's recommendation to allow claims to be tried to a
jury. In one case, a magistrate concluded that a female
corrections officer could pursue her claim for ``outrageous
conduct'' where her supervisor subjected her to repeated
requests for sex, lewd language, and physical contact, and
told her co-workers that he was having an affair with her and
that she was pregnant with his child. The conduct occurred
not only in the workplace but by telephoning the plaintiff at
home and by visits to the plaintiff's house, which the
supervisor said he could visit ``anytime he wanted.'' Judge
Shedd dismissed the claim, stating that while the defendant's
actions were ``certainly disgusting and degrading,'' they did
not rise to the level of outrageous conduct.
Judge Shedd's narrow and restrictive view of civil rights
claims is also evidenced by his dismissal of several cases in
which the Equal Employment Opportunity Commission had found
``reasonable cause'' to believe that discrimination occurred.
A finding of ``reasonable cause'' by the EEOC is extremely
rare (occurring in fewer than 10 percent of the cases filed).
Thus, the fact that Judge Shedd has refused to allow many of
these claims to get to the jury strongly suggests that Judge
Shedd utilizes an exceedingly high threshold for proving
unlawful discrimination. The endorsement of such a
[[Page S11255]]
restrictive standard that is far outside the mainstream of
federal jurisprudence has devastating implications for all
civil rights plaintiffs if Judge Shedd is confirmed to the
Fourth Circuit.
At his June 27 hearing, Judge Shedd admitted that, during
his eleven years on the bench, a plaintiff has never won an
employment discrimination jury trial in his court. He
defended this record by asserting that he could not recall a
plaintiff ever winning a jury trial in a discrimination case
in any court in South Carolina. However, we have subsequently
learned that during Shedd's tenure on the bench, there have
been at least twenty-one jury verdicts favorable to
discrimination plaintiffs in other federal courts in South
Carolina, yielding over $7 million in damages. Shedd's lack
of awareness of the outcome of these numerous cases evidences
a troubling indifference toward the type of civil rights
cases with which, by virtue of his docket, he should be the
most familiar.
Another area of grave concern to us is Judge Shedd's narrow
view of Congressional power to enact protective legislation.
We believe that Judge Shedd has the worst federalism record
of any nominee considered by the Judiciary Committee thus
far. At the same time, the Fourth Circuit has been the most
active federal circuit in curtailing federal power,
invalidating many portions of important federal legislation
in recent years. Judge Shedd's record in this area signals he
will join this Circuit's aggressive efforts to alter the
balance of federal and State power in a way that threatens
enforcement of our most cherished civil rights laws.
Judge Shedd authored the original district court opinion in
Condon v. Reno, striking down the Driver's Privacy Protection
Act based on his belief that the federal government did not
have the power to require States to ensure that State
driver's license records would remain private. Although the
Fourth Circuit affirmed Judge Shedd's decision, the Supreme
Court unanimously reversed the holding in a decision by Chief
Justice Rehnquist. In an unpublished opinion, which usually
signifies a routine decision, Judge Shedd struck down part of
the Family and Medical Leave Act, holding that the Eleventh
Amendment doctrine of state sovereign immunity prevents an
employee from suing a State agency for a violation of that
statute. This issue--because it calls into question
Congress's power to remedy sex discrimination in the
workplace--has profound implications for Congress's authority
under Section 5 of the 14th Amendment.
Judge Shedd has demonstrated a reluctance to sanction law
enforcement for crossing the line. In a recent criminal case,
a deputy sheriff and a State prosecutor videotaped a
constitutionally protected conversation between a lawyer
and a defendant charged with a capital crime. The
defendant was convicted in state court, but the South
Carolina Supreme Court overturned the conviction on the
basis of the videotape, calling it ``an affront to the
integrity of the judicial system,'' and stating that
``[t]he right to counsel would be meaningless without the
protection of free and open communication between client
and counsel.'' Judge Shedd presided over the federal cases
arising from a grand jury's investigation of the matter.
When the deputy offered a guilty plea, Judge Shedd
reportedly questioned it because he did not believe a
civil rights violation occurred. Judge Shedd imposed only
a $250 fine on the deputy and remarked at his sentencing
hearing that ``[the deputy] is caught up in a situation in
which there's at least part of the criminal defense bar
trying to get prosecutors and law enforcement punished.
That's what's going on in the law.'' In contrast, when the
defense attorney was convicted of perjury for denying he
leaked the videotape to the press after learning of its
existence before trial, Judge Shedd sentenced the lawyer
to prison and a $20,000 fine, accompanied by a lecture
about the serious consequences of committing perjury.
Judge Shedd has also exhibited a high level of
insensitivity on issues of race. Judge Shedd made several
insensitive comments as he dismissed a lawsuit aimed at
removing the Confederate battle flag from the South Carolina
statehouse dome. According to press accounts, Judge Shedd
suggested that South Carolinians--thirty percent of whom are
African-American--``don't care if that flag flies or not.''
(``Judge Dismisses Most Flag Defendants, The Greenville News,
June 11, 1994). He also analogized the Confederate battle
flag, to many a symbol of support for slavery and racist acts
of terror directed at African-Americans, to the Palmetto
tree, which is on the State flag: ``What about the Palmetto
tree?'' What if that reminds me that Palmetto trees were cut
down to make Fort Moultrie and that offends me?'' (``U.S.
Judge Dims Hope of Battle Flag's Foes,'' The State, June 11,
1994.) It is shocking that Judge Shedd, who was raised in
South Carolina during the 1950s and 1960s, could compare--
even hypothetically--being ``offended'' by the representation
of the Palmetto tree to the reaction of the African-American
community to the Confederate battle flag.
Dennis Shedd's opinions in his eleven years on the federal
bench reflect hostility toward plaintiffs in civil rights
cases, a desire to limit Congress's authority to enact
legislation that is applicable to the States, and a general
insensitivity on issues of race. The Fourth Circuit
desperately requires a voice of moderation and commitment to
core civil and human rights values. We believe that Judge
Shedd is not that voice and that the Committee should
therefore reject his nomination to this important court.
Sincerely,
Eddie Bernice Johnson, Chair;
John Conyers;
E. Towns;
Stephanie Tubbs Jones;
James E. Clyburn;
Albert R. Wynn;
Corrine Brown;
Barbara Lee;
Sheila Jackson-Lee;
Bobby L. Rush;
Elijah E. Cummings;
Melvin L. Watt;
Earl F. Hilliard;
Danny K. Davis;
Eva M. Clayton;
Julia Carson;
William J. Jefferson;
Gregory W. Meeks;
Donald M. Payne;
John Lewis;
Sanford D. Bishop, Jr.;
Benny G. Thompson;
Carrie P. Meek;
Alcee L. Hastings;
Diane E. Watson;
Chaka Fattah;
Wm. Lacy Clay;
Major R. Owens;
Carolyn C. Kilpatrick;
Maxine Waters;
Juanita Millender-McDonald;
Jesse Jackson, Jr.;
Harold E. Ford, Jr.;
Cynthia McKinney;
C.B. Rangel.
Mr. LEAHY. We received a letter from the Mexican American Legal
Defense and Educational Fund, in the interest of many Latinos in the
Fourth Circuit, expressing opposition to Judge Shedd as well as
correspondence from others expressing concern.
I ask unanimous consent that these be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Mexican American Legal
Defense and Educational Fund,
Washington, DC, September 30, 2002.
Dear Senate Judiciary Committee Member: On behalf of the
Mexican American Legal Defense and Educational Fund (MALDEF),
I urge you to oppose the nomination of Dennis Shedd to the
4th Circuit Court of Appeals. MALDEF is a Latino civil rights
organization that was founded in Texas in 1968. Since that
time, we have expanded our work across the nation and
represent all Latinos. In our more recent history, we opened
a community outreach office on the census in Atlanta, Georgia
prior to the 2000 census. Due to the growth of the Latino
community in the Southeast and the pressing legal needs of
our community in that region, we expanded our office this
year into a full regional office handling litigation,
advocacy and community education within the 4th Circuit
states of Maryland, North Carolina, South Carolina, Virginia,
and West Virginia.
Many people still are not aware of the rapid growth of the
Latino community in this region of the country. The following
is a sample of the Latino growth rates over that the last
decade in 4th Circuit states. In Maryland, Howard County's
Latino population grew at a rate of 104%, Anne Arundel County
saw its Latino population grow at a rate of 76%, Baltimore
County's Latino population grew by 65%, and Prince George's
County experienced 37% growth of Latinos. In Virginia, Prince
William County's Latino population grew by 94%, Fairfax
County experienced 71% growth of the Latino population,
Virginia Beach City's Latino population grew by 65%, and
Arlington county experienced 46% Latino growth. In North
Carolina, Wake County's Latino population grew by 190%,
Mecklenburg County saw its Latino population grow by 163%,
and Cumberland County experienced Latino growth at a rate of
97% in the last decade. In South Carolina, Richland County
saw its Latino population grow at a rate of 66%.
In addition, much of the Latino growth in these states is
being driven by the movement of Latino immigrants. What many
of these Latino immigrants face in these southeastern states
are barriers to housing, jobs, education, and health, as well
as targeting by local law enforcement similar to what many
Latino immigrants faced decades ago in states like
California, Texas and New York. While barriers and improper
law enforcement tactics still occur in states like California
and New York, these traditionally high-immigrant states also
now have a built-in infrastructure to serve the needs of
immigrants and help them find recourse if their rights are
trampled upon. Unfortunately, similar infrastructures do not
exist in most of the region covered by the 4th Circuit. As
such, ensuring that only nominees who will be fair to the new
Latino community in the southeast is particularly important.
MALDEF's evaluation of Dennis Shedd uncovered a
demonstrated lack of commitment
[[Page S11256]]
to protect the civil rights of ordinary residents of the
United States and to preserve and expand the progress that
has been made on civil rights and individual liberties. In
every respect, Dennis Shedd has demonstrated that he would
likely decide cases in a manner that run counter to the
core principles and rights we believe are necessary to
protect Latinos, particularly the most vulnerable who live
within the 4th Circuit.
Throughout his eleven years on the federal district court,
Judge Shedd has dismissed almost all of the civil rights
cases that have come before him; thus, preventing the merits
of these cases to be heard by a jury. Based on his handling
of race, gender, age, and disability claims, we conclude that
Judge Shedd would not give Latino plaintiffs seeking legal
remedies for civil rights violations a fair day in court.
In the area of upholding federal statutes, Judge Shedd's
rulings regarding federalism are also troubling and follow
the Fourth Circuit's bold attempts to narrow the powers of
Congress in its protection of the rights of all Americans. We
conclude that Judge Shedd, as a judge on the circuit court,
would continue attempts to limit the powers of Congress to
pass legislation that protects the rights of Latinos and
other protected groups.
Judge Shedd has also exhibited a high level of
insensitivity or poor judgment in commenting on issues about
race--while serving as a federal district judge in a state
with a population that is 30% African-American. For example,
in a recent unpublished case, Judge Shedd was reported in the
press as making several insensitive comments as he dismissed
a lawsuit aimed at removing the Confederate battle flag from
the South Carolina statehouse dome.
Dennis Shedd's eleven-year record as a federal district
judge reflects hostility towards plaintiffs in civil rights
cases, a desire to limit authority to enact legislation that
is applicable to states, and insensitivity to issues of
discrimination. Further, Judge Shedd's extremist views on
these issues render him unsuitable to serve on the Fourth
Circuit. For these reasons, we urge you to oppose his
nomination to the Fourth Circuit Court of Appeals.
Sincerely,
Antonia Hernandez,
President and General Counsel.
Mr. LEAHY. Mr. President, hundreds, probably thousands, of letters
from South Carolina citizens arrived in my office urging a closer look
at Judge Shedd's nomination to serve in the Fourth Circuit.
So we don't have a Congressional Record tomorrow morning that will be
several hundred pages long, I will not include all of them with my
remarks today. However, I ask unanimous consent that a list of the
letters of opposition to the nomination of Dennis Shedd to the Fourth
Circuit Court of Appeals be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Letters of Opposition to the Nomination of Dennis Shedd to the 4th
Circuit Court of Appeals
Local Civil Rights Groups
NAACP of South Carolina State Conference, June 24, 2002;
May 21, 2002.
NAACP of Andrews Branch, August 7, 2002.
NAACP of Eutawville, South Carolina, August 7, 2002.
NAACP of Newberry, South Carolina, August 7, 2002.
NAACP of Hilton Head Island/Bluffton, South Carolina,
NAACP, August 24, 2002.
NAACP of Moncks Corner, South Carolina, August 7, 2002.
NAACP of Kershaw, South Carolina, September 17, 2002.
NAACP of Clarendon County Branch, August 12, 2002.
Urban League of the Upstate, Inc., South Carolina,
September 24, 2002.
NAACP of North Carolina, June 24, 2002; June 26, 2002.
NAACP of Maryland State Conference, September 4, 2002.
Progressive Maryland, August 8, 2002.
NAACP of California State Conference, September 9, 2002.
NAACP of Mississippi State Conference, August 24, 2002.
NAACP of Delaware State Conference, August 14, 2002.
Public Justice Center, October 7, 2002.
NAACP of West Virginia State Conference, August 14, 2002.
Quad County (IL) Urban League, September 27, 2002.
Birmingham Urban League, Inc., September 24, 2002.
Advocates for Ohioans with Disabilities, August 31, 2002.
National Organization for Women, Western Wayne County (MI),
October 8, 2002.
national civil rights groups
Black Leadership Forum, September 16, 2002, November 12,
2002 (Dr. Joseph E. Lowery).
NAACP, September 17, 2002 (Kweisi Mfume).
Mexican American Legal Defense and Educational Fund, Sept.
30, 2002 (Antonia Hernandez).
People for the American Way, June 24, 2002; September 4,
2002.
American Association of University Women, June 20, 2002;
November 14, 2002.
National Council of Jewish Women, August 15, 2002.
Rainbow/Push Coalition, August 24, 2002 (Reverend Jesse L.
Jackson, Sr.).
Alliance for Justice, November 15, 2002 (Nan Aron).
People for the American Way, November 15, 2002 (Ralph
Neas).
Leadership Conference on Civil Rights & Alliance for
Justice, July 11, 2002, coalition letter signed by the
following groups: Alliance for Justice and Leadership
Conference on Civil Rights August 30, 2002, NARAL, NAACP
Legal Defense and Educational Fund, NAACP, American
Association of University Women, ADA Watch, National Council
of Jewish Women, AFL-CIO, NOW Legal Defense and Education
Fund, People for the American Way, Feminist Majority,
National Partnership for Women and Families, National
Organization for Women, and Disability Rights Education and
Defense Fund.
Alliance for Justice and Leadership Conference on Civil
Rights, September 18, 2002, coalition letter signed by the
following groups: Leadership Conference on Civil Rights,
Alliance for Justice, People for the American Way, NARAL,
Planned Parenthood Federation of American, Human Rights
Campaign, National Organization for Women, American
Association of University Women, NOW Legal Defense and
Education Fund, National Family Planning and Reproductive
Health Association, National Council of Jewish Women,
National Abortion Federation, and The Feminist Majority.
Alliance for Justice and Leadership Conferee on Civil
Rights, November 15, 2002, coalition letter signed by the
following groups: Leadership Conference on Civil Rights,
Alliance for Justice, NARAL, NAACP Legal Defense and
Educational Fund, NAACP, People for the American Way,
American Association of University Women, Feminist Majority,
ADA Watch, National Partnership for Women and Families,
National Council of Jewish Women, National Organization for
Women, AFL-CIO, NOW Legal Defense and Education Fund, and
Disability Rights Education and Defense Fund.
elected officials
National Black Caucus of State Legislators, September 25,
2002.
South Carolina Legislative Black Caucus, September 4, 2002.
North Carolina Legislative Black Caucus, September 26,
2002.
Legislative Black Caucus of Maryland, Inc., September 9,
2002.
Wisconsin Legislative Black & Hispanic Caucus, August 21,
2002.
Margaret Rose Henry, State Senator, State of Delaware,
September 19, 2002, November 12, 2002.
Maryland State Delegate Howard ``Pete'' Rawlings, August
21, 2002.
Congressional Black Caucus, July 26, 2002, October 2, 2002.
bar associations
National Bar Association, September 4, 2002.
Old Dominion Bar Association, September 11, 2002.
North Carolina Association of Black Lawyers, August 30,
2002.
Alliance of Black Women Attorneys of Maryland, Inc., August
30, 2002.
National Employment Lawyers Association, September 17,
2002, November 15, 2002.
North Carolina Academy of Trial Lawyers, September 26,
2002.
law professors
UNC--Chapel Hill School of Law: John Carles Boger, Lissa L.
Broome, Kenneth S. Broun, John O. Calmore, Charles E. Daye,
Eugene Gressman, Ann Hubbard, Daniel H. Pollitt, and Marilyn
V. Yarbrough.
Duke University School of Law: Christopher H. Schroeder and
Jerome Culp.
North Carolina Central University School of Law: Renee F.
Hill, David A. Green, Irving Joyner, Nichelle J. Perry, and
Fred J. Williams.
Law School Students
Howard University School of Law Students, September 11,
2002, signed by 58 Howard University Law Students.
Attorneys
Tom Turnipseed, Columbia, South Carolina, June 26, 2002.
Walt Auvil, Attorney, Parkersburg, West Virginia, June 19,
2002.
Neil Bonney, Attorney, Virginia Beach, Virginia, June 20,
2002.
Timothy E. Cupp, Attorney, Harrisonburg, Virginia, June 21,
2002.
Devarieste Curry, August 31, 2002.
Joseph D. Garrison, Attorney, New Haven, Connecticut, June
18, 2002.
Stephen B. Lebau, Richard P. Neuworth, Anna L. Jefferson,
Carrie D. Huggins, Attorneys, Baltimore, MD, June 20, 2002.
David M. Melnick, Attorney, Rockville, MD, June 20, 2002.
Gabriel A. Terrasa, Attorney, Owings Mills, MD, June 20,
2002.
Cathy Ventrell-Monsees, Attorney, Chevy Chase, MD, June 20,
2002.
Salb, Shannon, Attorney, Washington, DC, September 19,
2002.
Religious Leaders
South Carolinians, September 30, 2002.
Ms. Elvira Faulkner--McIlwain, Lancaster District Pee Dee
Conf. AME Zion Church.
Rev. Dr. Lloyd Snipes, Presiding Elder, Lancaster District
Pee Dee Conf. AME Zion Church.
[[Page S11257]]
Rev. Matthew L. Browning, Pastor, David Stand AME Zion
Church.
Rev. Dr. Reid R. White, Paster, El Bethel AME Zion Church.
Rev. Harold Jones, White Oak AME Zion Church.
Rev. Dr. Marion Wilson, Steele Hill AME Zion Church.
Rev. R.A. Morrison, Pastor, Salem AME Zion Church.
Rev. Albert Young, Pastor, Mt. Zion AME Zion Church.
Rev. Theodis Ingram, Pastor, Warner Temple AME Zion Church.
Rev. Henry I. Dale, Pastor, North Corner AME Zion Church.
Rev. Eldren D. Morrison, Pastor, Pleasant Hill AME Zion
Church.
Rev. Beatrice H. Massey, Pastor, Mt. Nebo AME Zion Church.
Rev. Dorothy N. Wallace, Pastor, New United AME Zion
Church.
Rev. Deborah Waddell, Pastor, Gold Hill AME Zion Church.
Rev. Thomas R. Moore, Mt Carmel, AME Zion Church.
Rev. Gloria Stover, Pastor, Greater Frazier AME Zion
Church.
Rev. Toby L. Johnson, Pastor, Clinton Chapel AME Zion
Church.
Rev. Len Clark, Pastor, Bingham Chapel AME Zion Church.
Rev. James R. Thomas Jr., Pastor, Camp Creek AME Zion
Church.
Rev. James E. Gordon, Pastor, St. Paul AME Zion Church.
Rev. Dr. Roy H. Brice, Pastor, Mt. Moriah AME Zion Church.
Rev. Albert Tucker, Pastor, Centennial AME Zion Church.
Rev. Roosevelt Alexander, Mt. Tabor, AME Zion Church.
Citizens
Marlin Maddoux, Host, Point of View Radio Talk Show.
Gladys W. Wallace, Elgin, SC, April 1, 2002.
Kathy Moore, Charleston, SC, June 24, 2002.
Salvador V. Acosta, Jr., North Charleston, SC, June 21,
2002.
Henderson and Gwen Beavers, Charlottesville, VA, August 29,
2002.
Florence Brandenburg, Shedrick Knox, Birmingham, AL August
1, 2002.
Barbara Burgess, Marshall, Virginia, November 14, 2002.
James T. McLawhorn, October 2, 2002.
Judith Polson, New York, NY, September 14, 2002.
Gloria Washington, Stone Mountain, GA, September 11, 2002.
Keith Washington, Stone Mountain, GA, September 11, 2002.
And letters from more than 1,200 other citizens.
Mr. LEAHY. Mr. President, there is a reason, when you look at Judge
Shedd's record, that many believe he has a reputation for assisting the
defense in civil cases and for ruling for the defense in employment
civil rights cases, for example. His holding in Condon v. Reno shows
that his view of the constitutional allocation of powers between the
States and the, Federal Government goes even beyond what we have seen
from a very conservative activist Supreme Court across the street. They
are busily rewriting the law in this fundamental area. And Judge Shedd
goes beyond the U.S. Supreme Court. His actions in a case involving
serious prosecutorial and police misconduct also raise serious
questions about his fairness in criminal cases.
His record as a whole raises serious concerns about whether he should
be elevated to a court that is only one step below the U.S. Supreme
Court and whether he should be entrusted with deciding appeals there.
Every litigant, every defendant, every person, every plaintiff who
comes before a judge in the Federal courts must be assured that the
judge will give a fair and unbiased hearing to the case at hand. The
test of a judge, especially a lifetime appointment, goes beyond just
the question of competence. When we are talking about our Federal
courts--remember, our Federal courts are admired around the world for
their independence and their fairness, but that means that whether you
or I, or anybody else walks into a Federal court, no matter what our
case is, whether we are plaintiff or a defendant, whether we are the
Government or one responding to the Government, whether we are rich or
poor, no matter what our political background is, when we walk into the
courtroom door, we have to be able to have confidence that this judge,
this Federal judge, will hear our case--he or she will hear it fairly.
Litigants in our federal courts should be able to have confidence to
say and believe that it makes no difference what my political
background is, what the color of my skin is, where I am from, or
anything else. I will win or I will lose based on the merits of the
case, not based on the individual prejudices of the judge.
Unfortunately, when one looks at Judge Shedd's record, one has to say
that somebody coming in to his court could not have that assurance. One
has to say unless they fit into a narrow category that Judge Shedd has
routinely favored in his cases, you are probably pretty unlucky to be
before his court.
Let me go through these concerns in a little more detail. First,
Judge Shedd has a reputation for assisting in the defense in civil
cases, raising issues sua sponte (on his own motion, without a motion
from the lawyers for the litigants), in essence making himself the
third litigator and not leaving it up to the parties--the plaintiff or
defendant--to litigate the case, but actually stepping in and taking
sides and making it very clear to the people in the courtroom that he
is taking sides.
He has ordered defendants to make motions for summary judgment
whether they wanted or planned to or not. He has resolved issues before
they are even raised and fully briefed, having made up his mind before
the case is even heard, having made up his mind on behalf of one of the
litigants. This shows a pattern of a judge injecting himself into
litigation, particularly in the shoes of corporations and others if
they are being sued, if they are defendants in civil litigation. Here
are some specific cases that illustrate these interventions by Judge
Shedd to the benefit of one of the parties.
In McCarter v. RHNB, a case alleging gender discrimination, Judge
Shedd granted summary judgment. He did not even wait for the company to
raise these grounds. He raised it for them and summarily ruled in their
behalf on an issue they had not even raised.
In Shults v. Denny's Restaurant, a case involving a claims of
employment discrimination under the Americans with Disabilties Act,
Judge Shedd raised an issue on his own, saying he was doing it ``for
possible resolution by summary judgment.'' In other words, putting
himself on the side of Denny's and in essence advocating for their
interests.
Again, deciding how best the defense should execute their litigation
strategy, he noted that three of the defenses asserted are potentially
dispositive of certain claims--in other words, three of the defenses
could settle the case right there--and said ``these issues do not
appear to necessitate much, if any, discovery on the part of the
plaintiff.'' He mentioned, almost as an afterthought at the close of
his order, that defendants ``may also file a memorandum'' if they want.
It does not help when you are litigating a case if you know the judge
has already made up his mind for the other side. It helps even less if,
having made it clear he has made up his mind for the other side, he
actually steps in and helps the other side.
What kind of an image does that give to people who are expecting
fairness and impartiality in our Federal courts? What does that say to
people who are being told by all of us, as we always are, that our
Federal courts are impartial? What does it say when they watch cases
being tried by a judge who takes sides openly and clearly and
continuously in his courtroom?
In Lowery v. Seamless Sensations, a case where an African American
woman brought claims under Title VII for employment discrimination on
the basis of race, Judge Shedd turned to the person she was suing and
said: Make a motion to dismiss. Then he quickly granted it. I bet you
that woman walked out of there wondering why she ever even bothered
coming into court when it was so obvious the judge made up his mind.
Take Coker v. Wal-Mart, in which it appears the judge wanted to get
rid of this case. He wanted to make a motion on his own to send it back
to the State court, but he did ask Wal-Mart: Give me a memo to show me
I can really do that which, of course, is what Wal-Mart wanted.
In Gilmore v. Ford Motor Company, a product liability case, Judge
Shedd outlined four factors he must consider before dismissing an
action for failure to prosecute. He found that the defendants had not
set forth evidence addressing these four factors, but nevertheless went
on to ``glean certain pertinent information from the record.''
In other words, he said: Here is what you need to win this case. You
have not raised these issues yourself. I have gleaned them from
somewhere in the record. So do not worry, buddies, I
[[Page S11258]]
have taken care of you; I am on your side. I will argue your case for
you and, in doing this, I can dismiss the case against you.
You almost wonder if the winning side feels they should pay their
attorneys when the judge has stepped in to help them win the case.
In Simmons v. Coastal Contractors, both parties were appearing
without a lawyer, or pro se. Judge Shedd noted that ``this civil action
. . . is before the court sua sponte.'' While he must have meant the
motion itself was before him sua sponte, or on his own motion, he
brought up deficiencies in the plaintiff's complaint and ordered that
an amended complaint be filed or the action would be dismissed on the
judge's own motion. In other words, he essentially indicated I am going
to decide the case. You litigants go have coffee if you want, but I am
going to make up my mind, make your arguments for you, and settle the
case for you.
In another substitution for his strategic litigation judgment for
that of the defendants, Tessman v. Island Ford-Lincoln-Mercury, Judge
Shedd threatened to dismiss the plaintiff's Title VII action on his own
unless the plaintiff could show cause why he should not. He said the
plaintiff had not alleged that she had presented her claim to, or
received a right-to-sue letter from the EEOC and decided that rather
than letting the defense move for dismissal, he would do so on his own.
In other words: I am going to make the arguments on the other side and
get rid of the case.
Additionally, of the 11 cases relating to employment discrimination
available in the public record, Judge Shedd held for the employer in
every single one, including one case where he sat by designation on the
Fourth Circuit. Judge Shedd granted summary judgment after summary
judgment and found for the employer and against the employee in a wide
range of employment discrimination claims.
Of the 54 fair employment cases included in the unpublished opinions
he provided to the Committee, more than 80 percent of them grant
summary judgment to the defendants. That does not appear to be a fair
record. It strongly indicates plaintiffs are not receiving fair
hearings. Employment cases are often fact-specific disputes that would
not seem likely to result in an overwhelming majority of summary
judgment decisions for defendants because under the summary judgment
standard, the evidence must be viewed in the light most favorable to
the non-movant--the plaintiff under these circumstances--and the judge
must find that there are no disputes about material facts and that
judgment as a matter of law is warranted for the moving party the
defendants.
Certainly when I look at the mail I get from South Carolina and from
litigants and others there, there is a pervasive feeling that unless
you fit the right category when you come before that court, you are not
going to get a hearing favorable to you--actually, an overwhelming
feeling that the hearings will not be fair. They will be slanted to one
side. That is not how we maintain the integrity and independence of the
Federal bench. For example, the National Employment Lawyers Association
reviewed Judge Shedd's public record. They sent a letter opposing his
confirmation. I ask unanimous consent that the letter be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Employment
Lawyers Association,
September 17, 2002.
Re Dennis Sheed--Appointee for United States Court of
Appeals.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Senator Leahy: On behalf of the National Employment
Lawyers Association (NELA), I am writing you to express our
organization's strong opposition to the nomination of Judge
Dennis Shedd to the Fourth Circuit Court of Appeals. We urge
the members of the Senate Judiciary Committee to vote against
his nomination. We further urge the Administration to
nominate a person for that seat who will apply federal
employment and labor laws in a fair and even-handed manner,
and who will interpret those laws in keeping with the intent
of Congress.
during his hearing, judge shedd offered misleading information
Judge Shedd's employment law decisions have been, almost
without exception, in favor of employers. At his Committee
hearing earlier this year, Judge Shedd claimed that was
unable to recall any employment case in his courtroom that
had gone to trial resulted in a verdict or judgment in favor
of the plaintiff. By way of explanation, Judge Shedd told the
Committee that no judge in his district had an employment
case where the employee had won at trial. This statement was
untrue, and several other judges in the district presided
over trials which were won by the plaintiffs. Shedd's
statement is not only indicative of his anti-employee bias,
but also demonstrates a cavalier attitude toward the truth
and a willingness to offer erroneous information to the
Committee.
In addition, NELA is concerned that Judge Shedd may not
have opened his entire judicial record for scrutiny by the
Senate Judiciary Committee and the public. Shedd turned over
unpublished opinions only after his hearing, and never
provided the Committee with a full docket of his cases.
Without a full docket, it is impossible to determine whether
all of Judge Shedd's unpublished opinions have been released.
Your Committee is considering Judge Shedd's lifetime
appointment to a court where his rulings would carry enormous
precedential force. In light of the importance of this
appointment, the Committee and the full Senate should not
be forced to make a decision based on a record that may be
incomplete.
judge shedd's employment decisions reveal a strong anti-employee bias
NELA has analyzed dozens of Judge Shedd's unpublished and
published decisions in employment cases. These decisions
reveal a willingness to bend the law and ignore precedent in
order to reach results-oriented rulings.
judge shedd frequently ignored the findings of his own magistrate judge
in order to rule against employees
In the federal district courts, Magistrate Judges often
evaluate a case and recommend to the judge whether the
plaintiff has presented sufficient evidence for the case to
go to trial. The decisions of Magistrate Judges are typically
affirmed, as the Magistrate Judge usually has had an
opportunity to fully review the facts of the case. Judge
Shedd has frequently ignored uncontradicted evidence and
overruled the recommendations of Magistrate Judges.
In Cleary v. Nationwide Mutual Insurance Co., the
Magistrate Judge has found that there was sufficient evidence
for a trial where a female employee was fired in retaliation
for filing a sexual harassment case. The employer forced the
female employee to take administrative leave and then fired
her after she filed a sexual harassment claim, but the
harasser was allowed to keep working. Judge Shedd rejected
the Magistrate Judge's recommendation, and refused to let the
case go to trial. By viewing each of the seven or eight
incidents of harassment as a separate incident rather than as
a whole, Judge Shedd concluded that there was no evidence
that the female employee was forced to take leave and then
terminated for retaliatory reasons (contrary to the
Magistrate Judge's findings). Judge Shedd's analysis--viewing
each incident in isolation--is contrary to established
Supreme Court precedent. Judge Shedd also excused some of the
defendant's acts as mere ``mistakes.''
In Dinkins v. Blackman, Judge Shedd rejected a magistrate
Judge's recommendation and granted summary judgment on a
sexual harassment claim and other claims by the employee,
even though Judge Shedd found that the sexual harassment was
``gross behavior.'' Judge Shedd refused to give the employee
the opportunity to seek further information for her case in
discovery, ignoring a new Supreme Court case which was
decided after Dinkins filed her case.
In Ellis v. Speaks Oil Co., Judge Shedd granted summary
judgment in favor of the employer on an age discrimination
claim, contrary to the Magistrate Judge's recommendation,
because he concluded that the plaintiff, a truck driver, was
not performing his duties up to his employer's expectations
of driving two trips per day. He disregarded evidence found
by the Magistrate Judge which showed that the plaintiff, who
was 62 years old, was driving two trips per day until the
company let him go.
In Roberts v. Defender Services, Judge Shedd ignored the
Magistrate Judge's recommendation to deny the employer's
motion for summary judgment in a sexual harassment case.
Judge Shedd agreed that the harassment in this case was
severe, but ruled that the woman did not prove that she was
really upset by the harassment, which should have been a
question for the jury to decide.
judge shedd ignored clear and established precedent in order to rule in
favor of corporate employers against individual employees
In Ephraim v. Paul Harris Stores, Inc., Judge Shedd held
that a claim of invasion of privacy (false light) was not
cognizable under South Carolina law, despite two South
Caroline Supreme Court decisions that had recognized this as
a valid claim under state law.
In Rector v. Rainbow Shops, Inc., Judge Shedd disregarded
South Carolina state-court decisions that had held that a
mere insinuation is actionable in a defamation case if it is
false and malicious and the meaning is plain. Instead, he
decided that employee's termination while the store was
experiencing cash shortages was not reasonably capable of
[[Page S11259]]
a defamatory meaning. Judge Shedd also allowed the employer
to read and sign the form, even though the employer offered
no reason for doing this. Judge Shedd did not even require
the employer to explain why it was necessary for the
termination meeting to occur in public, in the presence of
other store employees.
In Storms v. Goodyear Tire & Rubber Co., Judge Shedd held
that an employee could not bring a claim for breach of
contract based on language contained in the company's own
personnel documents because there was no evidence of ``mutual
assent'' to those documents. He did not explain why the
company had not assented to the promises contained in its own
documents. He refused to follow precedent by the South
Carolina Supreme Court on this and related issues. Later, in
Truesdale v. Dana Corp., Judge Shedd cited his own opinion in
Storms and again failed to follow precedent. In this case, an
employee was fired in violation of the company's own
disciplinary policies and procedures. By interpreting the
employer's personnel documents in a selective, extremely pro-
employer manner, Judge Shedd determined that the employer's
policies did not protect the employee.
judge shedd disregarded or misconstrued evidence to the benefit of
employers
In English v. Kennecott Ridgeway Mining Co., an injured
employee claimed that he was fired in retaliation for filing
a workers' compensation claim. Judge Shedd dismissed the
retaliatory discharge claim despite uncontradicted evidence
(summarized in his own opinion) which demonstrated the
employer's hostility toward the injured worker because of his
workers' compensation claim. In fact, while the plaintiff
``was still under the care of the company's physician,
coworkers informed English that his superiors were
complaining that English was milking the system, that he was
not really hurt, and that he should be returned to full
duty.''
In Givens v. South Carolina Health Insurance Pool, Judge
Shedd allowed the state insurance pool to exclude AIDS/HIV
from health insurance coverage. Judge Shedd held that the
Sec. 501(c) insurance underwriting exclusion (safe harbor
provision) of the Americans with Disabilities Act (``ADA'')
exempted the Insurance pool from coverage under that statute,
even though the State did not do any of its own actuarial
studies or underwriting studies to evaluate the expensive and
risks of insuring persons with AIDS/HIV. Since the State
failed to do any of its own studies, it should have been
barred from being able to claim the Sec. 501(c) exemption.
In Gregory v. Chester County Sheriff's Dept., Judge Shedd
accepted a poorly reasoned recommendation from a Magistrate
Judge against an employee. The Magistrate Judge had found
that the employee could not prove that her demotion was an
``adverse action'' by the employer. This ruling is contrary
to precedent that demotions are adverse job actions. Gurganus
v. Beneficial North Carolina, Inc., 2001 U.S. App. LEXIS
26943 (4th Cir. 2000). Although Judge Shedd stated that he
was supposed to review the Magistrate Judge's recommendation
de novo, he issued only a one-page summary order.
In Richberg v. Glaston Copper Recycling, Judge Shedd
refused to consider evidence presented by the plaintiff that
showed the existence of genuine issues of material fact when
he granted summary judgment for the employer. For example, he
claimed that the plaintiff had failed to challenge the
employer's affirmative defense that the plaintiff was
terminated for failing to meet ``established work
standards,'' although the plaintiff had submitted a positive
performance evaluation from his personnel file. Judge Shedd
also refused to follow a state court decision that had held
that a sixteen-day proximity in time between a workers'
compensation filing and a drug screen was prima facie
retaliation, on the grounds that the drug screen in the
Richberg case was ordered 50 days after the filing.
judge shedd's appointment to the fourth circuit would stack the court
with pro-employer judges
NELA members who practice in the states within the Fourth
Circuit repeatedly have reported that they do everything they
can to avoid filing employment cases in federal court and
avoid filing federal claims in state court, for fear of
removal. As a result, federal statutes prohibiting
discrimination in employment--Title VII, the ADA, the Age
Discrimination in Employment Act, the Reconstruction-era
civil rights acts--are largely not enforced in those states
because the Fourth Circuit has created a hostile environment
for those claims. As Committee members are aware, the Fourth
Circuit has been reversed even by the current Supreme Court
on a number of occasions, in cases involving employment and
other matters. See, e.g., EEOC v. Waffle House, Inc., 534
U.S. 279 (2002) (reversing the Fourth Circuit decision by a
6-3 vote, and holding that the EEOC is not bound by
arbitration agreements between an employee and employer);
Ferguson v. City of Charleston, 531 U.S. 67 (2001) (by a 6-3
vote, holding that coerced drug testing of pregnant women is
unconstitutional); Dickerson v. United States, 530 U.S. 428
(2000) (by a 7-2 vote, the Court refused to overrule Miranda
v. Arizona).
nela strongly opposes the confirmation of judge shedd
Judge Shedd's record shows a cavalier attitude toward
evidence, legal precedent, and an alarming tendency to deny
working men and women who appear before him their day in
court. Judge Shedd is dismissive toward the rights of workers
who face harassment and mistreatment by their employers.
Unlike his colleagues in the District of South Carolina,
there has never been a pro-employee verdict in any civil
rights trial in Judge Shedd's courtroom. If fairness and a
commitment to equal justice are expected of appointees to the
United States Court of Appeals, then Judge Shedd has proven
that he cannot satisfy these expectations. For these reasons,
NELA urges you to oppose the confirmation of Judge Dennis
Shedd.
Very truly yours,
Frederick M. Gittes,
President, National Employment Lawyers Association.
Mr. LEAHY. Mr. President, I mentioned that Judge Shedd tends to go
even beyond where an activist U.S. Supreme Court has gone. In a 1997
case challenging the constitutionality of the Driver's Privacy
Protection Act, Judge Shedd made a federalism ruling that went way
beyond even the extreme federalism rulings of the U.S. Supreme Court,
and it was so bad that the U.S. Supreme Court in a 9-to-0 opinion
reversed Judge Shedd's ruling.
In Condon v. Reno, Judge Shedd ruled on the constitutionality of the
Driver's Privacy Act, which essentially prohibited States from selling
and sharing personal information gleaned as they were picking up
driver's license information. He said that the Act violated the 10th
Amendment as interpreted by the courts in New York v. United States and
Printz v. United States. Three years later, Chief Justice Rehnquist
wrote for the Court explaining that, to the contrary, neither of the
cases applied. He did not get just one of them wrong, he got them both
wrong. The Chief Justice wrote that because the Act did not require the
States in their sovereign capacity to regulate their own citizens, but
instead regulates the States as the owners of the databases. Therefore,
the Act was consistent with the constitutional principles enunciated in
New York v. Printz.
In Crosby v. South Carolina, he found the Family and Medical Leave
Act unconstitutional on the grounds that it was not properly enacted
under Congress's power. I mention this case because it is the second
time Judge Shedd ruled in such a way in an important federalism case.
He also ruled this way because he just took a magistrate judge's very
brief report and did not put in any significant analysis of his own.
In this case, it is almost impossible to figure out his reasoning for
why this important law with bipartisan support would be
unconstitutional, especially when acts of Congress are entitled to a
presumption of constitutionality. One would think if somebody really
cared about the courts of appeal and the Supreme Court, they would have
at least given us rigorous analysis instead of making what appears to
be a somewhat arbitrary ruling.
In addition, he issued several opinions relating to a murder case
where a privileged conversation between the defendant and his attorney
was monitored and recorded on videotape by the county sheriff's
department. Present in the room where the conversation was being
monitored were several of the sheriff's deputies and the county
prosecutor who subsequently handled the case. The defendant was
convicted and sentenced to death but the Supreme Court of South
Carolina reversed because of the nature of the videotaping. In its
opinion, the Supreme Court of South Carolina--not one considered the
most liberal of courts--used very strong language that condemned the
failure to disqualify the local prosecutor's office. They cited the
prosecutor's special responsibilities to do justice. And the South
Carolina Supreme Court said it would not tolerate deliberate
prosecutorial misconduct which threatens rights fundamental to liberty
and justice. That is about as strong a condemnation by any state
Supreme Court of a prosecutor's actions as I have ever heard.
So the federal prosecutions relating to the videotaping were then
brought to Judge Shedd's courtroom. Both the prosecutor, Fran
Humphries, and the defense attorney, Jack Duncan, were brought before a
federal grand jury investigating these constitutional violations.
Mr. Duncan testified that he had not given a copy of the tape to a
television reporter, while Mr. Humphries testified he had not
immediately known the taping was taking place. Now each of them
[[Page S11260]]
was charged with perjury based on these statements. As I mentioned, the
prosecutor and several of the sheriffs, were there watching the taping.
So it was obvious he was not telling the truth.
Mr. Duncan, the defense attorney, was found guilty and sentenced to 4
months in prison. Even though the information seemed overwhelming
against the prosecutor, Judge Shedd dismissed those charges.
This is enlightening because if anybody was hurt by the improper
taping, it was the defendant and the defense attorney. If anybody truly
committed a wrongdoing, as the South Carolina Supreme Court said in the
strongest language against a prosecutor I can remember, it was the
prosecutor. But having them both before his court, Judge Shedd in
effect exonerated the prosecutor and sentenced the defense attorney to
4 months.
Think of yourself as the litigant before his court. Look at all of
these cases I have talked about, and so many others. I do not fall in
the category of the sides he tends to rule with. I am on the other
side. It would be an awful sinking feeling to go in there knowing how
good your case is but you are probably going to lose.
This particular decision shows disregard for the rights of Americans
who, no matter what they have been accused of, should be able to expect
privacy and not to be videotaped by the government when they are
talking to their attorneys. The law is settled in this country that
with attorney-client privilege you can sit down and talk with your
attorney without the prosecutor videotaping what you are saying,
without them listening to or eavesdropping on you.
There are a couple of people you are able to talk to with a
reasonable expectation of privacy. You are able to talk to your spouse.
You are able to talk to your attorney. You are able to talk to your
priest in a penitent relationship. Here, the prosecutor violated that--
something that every prosecutor's handbook in America says is wrong,
something that hornbook law says is wrong, every ethics course says is
wrong, and every bar association says is wrong. The Supreme Court of
South Carolina unanimously said it was wrong but Judge Shedd said to
the prosecutor: It is okay; we will get the other guy. Well, that calls
into question his ability to be fair in criminal cases.
So I am concerned when I see his record as a Federal district judge,
and I ask myself: If this is his record as a Federal district judge,
how is he going to be as a circuit judge on the court of appeals? So I
share some of the same concerns about his fairness that we have heard
expressed from South Carolina and from throughout the Fourth Circuit.
I know arguments will be made on the other side, and this will be
disposed of however the Senate decides to vote, but for me, I could not
in good conscience vote aye on this nomination. I will vote no.
I ask unanimous consent that letters from the Leadership Conference
on Civil Rights, Alliance for Justice, and others be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Leadership Conference on Civil Rights and Alliance for
Justice,
Washington, DC, August 30, 2002.
Hon. Patrick J. Leahy,
Chair, Senate Judiciary Committee, Washington, DC.
Dear Senator Leahy: We, the undersigned civil and human
rights organizations, write to express our strong opposition
to the confirmation of Dennis Shedd to the United States
Court of Appeals for the Fourth Circuit.
First, we want to comment on the Judiciary Committee's
level of review of this particular nomination. On July 11, we
sent a letter expressing concern that the Committee had not
received all of the information required to make a fully
informed decision about whether to elevate Judge Shedd to the
Fourth Circuit. We urged the Committee to take steps to
complete the record on this nominee, and to hold another
hearing to allow the Committee to fully examine the complete
record.
It now appears as if the Committee has declined to ensure
that it has obtained the complete judicial record and has
decided not to hold a second hearing on the nomination. We
are deeply troubled that the Committee may vote on the Shedd
nomination without first obtaining a complete record and then
providing an opportunity to publicly explore that record. The
many concerns that we have identified in Judge Shedd's record
produced thus far and which give rise to our opposition only
strengthen our conviction that a vote on the nomination
should occur only after a full record is obtained and
examined.
We strongly believe that the composition of the federal
judiciary is a civil rights issue of profound importance to
all Americans, because the individuals charged with
dispensing justice in our society have a direct impact on
civil rights protections for us all. As you know, the role of
the federal judiciary in protecting the rights of the
powerless is particularly acute in the Fourth Circuit, which
has the highest percentage of African-Americans of any
federal circuit in the nation.
The Fourth Circuit is also arguably the most conservative
of the federal circuits. Several of its most conservative
decisions have been subsequently reversed by the Supreme
Court as too extreme, including Condon v. Reno, a challenge
to Congress's power to protect the privacy of drivers'
license information; an attempt to overrule the Miranda rule;
and Virginia's attempt to limit the right of reproductive
choice. Because of the high percentage of minority citizens
in the circuit and the very conservative nature of the court,
it is imperative that any new appointment to this court be a
person of moderate views who is wholly committed to the goals
of equality and equal opportunity for all Americans. After an
extensive review of Judge Shedd's record, it has become clear
that he is not that nominee.
We are deeply concerned about Judge Shedd's reluctance to
follow the law in support of vigorous enforcement of legal
protections against discrimination for women and minorities.
During Judge Shedd's time on the bench, at least forty
African-Americans have filed employment discrimination cases
that were assigned to Judge Shedd's court. Of those, Judge
Shedd granted summary judgment for the employer in whole or
in part in almost every case. In one case, Bailey v. South
Carolina Dep't of Social Services, Judge Shedd granted
summary judgment to the employer, even though the EEOC had
determine there was reasonable cause to believe that the
plaintiff was not promoted due to his race. In another case,
McMillan v. Department of Corrections, the plaintiff alleged
discrimination in the denial of a pay increase by the
Department of Corrections. The plaintiff's supervisor had
requested a pay increase for the plaintiff. At the same time,
another State agency conducted an investigation into racially
discriminatory employment practices within the Department of
Corrections and concluded that White employees tended to do
significantly better than Black employees in performance pay
increases. Nevertheless, Judge Shedd refused to let this case
go to trial. In contrast to cases involving African-American
plaintiffs, in four out of five discrimination cases filed by
White male plaintiffs, Judge Shedd has denied summary
judgment and paved the way for trial.
Judge Shedd has an equally poor record in cases involving
gender discrimination. In one case, Roberts v. Defender
Services, Inc., he granted summary judgment to an employer in
a sexual harassment case, even after concluding that the
supervisor's conduct ``clearly was, from an objective
standpoint, sufficiently severe and pervasive to constitute a
hostile and abusive work environment.'' Despite that finding,
Judge Shedd concluded that the plaintiff had not provided any
evidence that she ``subjectively perceived the environment to
be abusive,'' reaching this conclusion despite the fact that
the record contained evidence that the plaintiff's supervisor
made sexual comments to her on a daily basis, that she told
him these comments were offensive, that she and a female
manager took steps to report the conduct to corporate
headquarters, and that she resigned from her job.
Judge Shedd has also exhibited a disturbing tendency to
resolve cases on summary judgment in favor of defendants,
even where genuine issues of material fact were clearly
presented. For example, in Alston v. Ruston, Judge Shedd
granted summary judgment on a Section 1983 complaint after
concluding, as a matter of law, that a prison guard had not
used excessive force--despite an affidavit and a well-pleaded
complaint from the plaintiff alleging that the officer had
sprayed him in the face with tear gas without justification,
advanced toward him ``swinging his fists and punching
[plaintiff] in the mouth,'' and wielded a broomstick until
another officer intervened. Given the evidence presented,
there was no room for Judge Shedd to conclude that excessive
force had not taken place as a matter of law. Nevertheless,
Judge Shedd made such a ruling and dismissed the plaintiff's
case.
In other cases, Judge Shedd has exhibited hostility toward
plaintiffs in civil rights claims involving allegations of
misconduct by law enforcement officers. For example, in Joye
v. Richland Co. Sheriff's Dep't., Judge Shedd dismissed a
Section 1983 claim brought by a person wrongfully arrested by
sheriff's deputies under a bench warrant issued for his son.
Despite the fact that the arrest warrant described a 31 year
old man, standing 5' 11'', the officers arrested the
plaintiff who was 61 years old and stood 5' 7'' tall. The
plaintiff argued that the officers had acted unreasonably in
arresting him, in violation of his 4th Amendment rights.
Judge Shedd, however, concluded that the plaintiff had not
stated a valid 1983 claim because the officers had a
``reasonable, good
[[Page S11261]]
faith, belief, that they were arresting the correct person.''
He therefore rejected, as a matter of law, the contrary
conclusion of the magistrate that the officers were not
entitled to a ``good faith'' defense on these facts.
Judge Shedd's record also displays a consistent disregard
for the rights of people with disabilities. He has ruled
against disability rights plaintiffs in almost every
instance, departing from settled law and adopting tortured
interpretations of disability rights laws. In one case, Judge
Shedd approved a state health insurance pool's complete
exclusion from coverage of a man who was HIV positive. The
plaintiff who filed the case sought to have it decided on an
expedited basis, but died eight months later before any
decision was rendered. In another case, a magistrate had
found no evidence that the plaintiff's disability interfered
with his ability to do his job and recommended that the
plaintiff be permitted to proceed with the claim.
Nevertheless, Judge Shedd dismissed the plaintiff's claim,
concluding, without citing any evidence, that the disability
rendered the plaintiff unable to do his job.
We are also very concerned about Judge Shedd's views on
``state's rights'' which would limit Congress's power to pass
laws that are applicable to the States. Shedd authored the
original district court opinion in Condon v. Reno, striking
down the Driver's Privacy Protection Act based on his belief
that the federal government did not have the power to require
States to ensure that State driver's license records would
remain private. Although the Fourth Circuit affirmed Judge
Shedd's decision, the Supreme Court unanimously reversed the
holding in a decision by Chief Justice Rehnquist. We are
unaware of any other instance in the last 50 years where a
district court judge has struck down an act of Congress on
federalism grounds only to be unanimously reversed by the
Supreme Court. Judge Shedd also struck down part of the
Family and Medical Leave Act (FMLA), in Crosby v. South
Carolina Dep't of Health and Envtl. Control, holding that the
11th Amendment doctrine of state sovereign immunity prevents
an employee from suing a State agency for violation of the
FMLA. This issue--because it calls into question Congress's
power to remedy sex discrimination in the workplace--has
profound implications for Congress's authority under Section
5 of the 14th Amendment.
Judge Shedd has also exhibited a high level of
insensitivity on issues of race. In a recent case, Judge
Shedd made several insensitive comments as he dismissed a
lawsuit aimed at removing the Confederate battle flag from
the South Carolina statehouse dome. According to press
accounts, Judge Shedd suggested that South Carolina, 30% of
whom are African-American, ``don't care if that flag flies or
not.'' He also analogized the Confederate battle flag, to
many a symbol of support for slavery and racist acts of
terror directed at African-Americans, to the Palmetto tree,
which is on the State flag, stating: ``What about the
Palmetto tree? What if that reminds me that Palmetto trees
were cut down to make Fort Moultrie and that offends me?''
Judge Shedd's hostility to the lawsuit in open court provides
strong evidence of a poor judicial temperament. His attempt
to minimize the symbolism of the Confederate flag to the
African American community and suggest it is comparable to an
image of the Palmetto tree reflects a stunning insensitivity
to the injurious impact this particular symbol still has on
many of our citizens.
In sum, Dennis Shedd's eleven-year record on the federal
district bench reflects hostility towards plaintiffs in civil
rights cases, including minorities, women and persons with
disabilities, a desire to limit Congress's authority to enact
protective legislation that is applicable to the states, and
insensitive to issues of race. Judge Shedd's view on these
issues render him a poor choice for the Fourth Circuit and we
therefore urge you to oppose his confirmation.
Sincerely,
Wade Henderson, Executive Director, Leadership Conference
on Civil Rights; Nan Aron, President, Alliance for
Justice; Kate Michelman, President, NARAL; Elaine R.
Jones, President and Director-Counsel, NAACP Legal
Defense and Educational Fund; Hilary Shelton,
Director--Washington Bureau, NAACP; Ralph Neas,
President, People for the American Way; Nancy Zirkin,
Director of Public Policy, American Association of
University Women; Eleanor Smeal, President, Feminist
Majority; Jim Ward, Executive Director, ADA Watch;
Judith L. Lichtman, President, National Partnership for
Women and Families; Marsha Atkind, National President,
National Council of Jewish Women; Kim Gandy, President,
National Organization for Women (NOW); William Samuel,
Director--Department of Legislation, AFL-CIO; Patrishia
Wright, Director of Government Affairs, Disability
Rights Education and Defense Fund; Liza M. Maatz, Vice
President of Government Relations, NOW Legal Defense
and Education Fund.
____
People for the American Way,
Washington, DC, September 4, 2002.
Hon. Patrick J. Leahy,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Leahy: On behalf of the more than 500,000
members and supporters of People For the American Way (PFAW),
we write to express our strong opposition to the elevation of
Judge Dennis Shedd to the United States Court of Appeals for
the Fourth Circuit.
Judge Shedd's views on federalism are of grave concern.
Judge Shedd authored the original district court opinion in
Condon v. Reno, which struck down the Driver's Privacy
Protection Act based on his analysis that the federal
government did not have the power to require states to ensure
that driver's license records remain private. Although the
Fourth Circuit Court of Appeals agreed, an a unanimous
decision authored by Justice Rehnquist, the Supreme Court
unanimously reversed. PFAW is unaware of any other instance
in the last 50 years where a district court judge has struck
down an act of Congress on federalism grounds only to be
unanimously reversed by the Supreme Court.
In Crosby v. South Carolina Dept. of Health and Envtl.
Control, Judge Shedd also struck down part of the Family and
Medical Leave Act (FMLA), holding that the 11th Amendment
doctrine of state sovereign immunity prevents an employee
from suing a State agency for violation of the FMLA. This
issue--because it calls into question Congress's power to
remedy sex discrimination in the workplace--has profound
implications for Congress's authority under Section 5 of the
14th Amendment.
Judge Shedd has a troubling record on civil rights
enforcement. Throughout his eleven years as a federal
district court judge, Judge Shedd has dismissed almost every
civil rights case on behalf of minority claimants that has
come before him, thereby preventing the merits of these cases
from being heard by a jury.
For example, in Bailey v. South Carolina Dept. of Social
Services, Judge Shedd granted summary judgment to the
employer, even though the Equal Employment Opportunity
Commission (EEOC) had determined there was reasonable cause
to believe that the African American plaintiff was not
promoted because of his race. In McMillan v. South Carolina
Dept. of Corrections, a case involving allegations of race
discrimination, Judge Shedd refused to allow the plaintiff's
claim to go to trial, despite a finding by another state
agency that Caucasian employees tended to receive higher
performance pay increases than African-American employees.
In contrast, in four of the five cases filed in his court
by Caucasian plaintiffs alleging ``reverse discrimination''
in employment, Judge Shedd denied summary judgment and
allowed the case to proceed to a jury trial.
Judge Shedd's record also reflects insensitivity in civil
rights cases alleging discrimination based on gender. For
example, in Roberts v. Defender Services, Inc., a
recommendation of the federal magistrate and granted summary
judgment to the defendant. In Roberts, the record contained
evidence that the plaintiff's supervisor made sexual comments
to her on a daily basis, that she told him these comments
were offensive, that she and a female manager took steps to
report the conduct to corporate headquarters, and that she
resigned from her job. Despite this evidence, Judge Shedd
stated that while the supervisor's conduct ``clearly was,
from an objective standpoint, sufficiently severe and
pervasive to constitute a hostile and abusive work
environment,'' the plaintiff had not provided any evidence
that she ``subjectively perceived the environment to be
abusive.''
A number of Judge Shedd's opinions reflect a disregard for
laws protecting the disabled. For example, in Payette v.
Westinghouse Electric Corp., Judge Shedd effectively read the
right of employees to ``reassignment,'' a crucial protection
for those with disabilities, out of the Americans with
Disabilities Act (ADA). Congress explicitly included
reassignment to a vacant position, when the person is no
longer able to do his or her job, as one type of
accommodation required by the ADA. In Givens v. South
Carolina Health Insurance Pool, Judge Shedd ignored the plain
meaning of the ADA when he approved a state health insurance
pool's refusal of coverage for a man who was HIV positive. No
other medical condition was excluded, and the state had done
no actuarial analysis to justify the exclusion of individuals
with HIV/AIDS. While many courts have held that the ADA does
not prevent insurance plans from providing lesser benefits
for treatment of particular types of disabilities, this
ruling goes beyond those decisions.
Judge Shedd has exhibited a high level of insensitivity on
issues of race. In a recent case, Judge Shedd made several
insensitive comments as he dismissed a lawsuit aimed at
removing the Confederate battle flag from the South Carolina
statehouse dome. According to press accounts, Judge Shedd
suggested that South Carolinians, 30% of whom are African-
American, ``don't care if that flag flies or not.'' He also
analogized the Confederate battle flag, to many a symbol of
support for slavery and racist acts of terror directed at
African-Americans, to the Palmetto tree, which is on the
South Carolina State flag, stating: ``What about the Palmetto
tree? What if that reminds me that Palmetto trees were cut
down to make Fort Moultrie and that offends me?''
Given the importance of the Fourth Circuit and the current
ideological imbalance on the court, it is imperative that any
nominee to this court be a jurist of more moderate views who
will protect the civil and constitutional rights of all
Americans. Judge Shedd's record demonstrates that he is not
[[Page S11262]]
the nominee. PFAW urges the Judiciary committee to reject his
nomination.
Sincerely,
Ralph G. Neas,
President.
____
National Headquarters,
Chicago, IL, August 24, 2002.
Senator Patrick Leahy,
Member, U.S. Senate,
Washington, DC
Dear Senator Leahy: Let me lend my voice of opposition to
the chorus of discontent surrounding the nomination of Judge
Dennis Shedd to the Fourth Circuit Court of Appeals. I urge
you to oppose the Shedd nomination, based on the merits, and
the merits alone. A seat on the Fourth Circuit is too
important to the nation's judiciary not to be heavily
scrutinized.
As a native of South Carolina, I am deeply disturbed by the
direction taken by the Fourth Circuit in recent years. As a
Judicial Circuit with considerable influence on the Supreme
Court, those elevated to the Court should reflect the highest
American ideals of inclusion and equal protection under the
law. Moreover, the states included in the Fourth Circuit are
comprised of the highest percentage of African Americans,
than any other Circuit, thus judges on the Court must be
sensitive and respectful for the civil rights laws for which
we fought so hard.
Currently, the Fourth Circuit is the most extremist court
in the nation on civil rights issues, criminal justice
issues, and those involving the power of the federal
government, to enact legislation, which holds States
accountable for civil rights violations. The nomination of
Dennis Shedd threatens to take the Court in a further
extremist direction. For example, Judge Shedd's opinion in
the Condon v. Reno case suggests that he favors disempowering
Congress. American judges, and their rulings should protect
rights, rather than restrict the balance of power.
To preserve this nation's ideals of inclusion, and to
ensure equal protection under the law for all Americans, I
urge you, and other members of the members of the Senate
Judiciary Committee to vote ``No'' on the nomination of
Dennis Shedd.
Sincerely,
Reverend Jesse L. Jackson, Sr.
____
South Carolina Legislative
Black Caucus,
Columbia, SC, September 4, 2002.
Re Fourth Circuit Nomination of Judge Shedd.
Hon. Patrick J. Leahy,
Chair, Senate Judiciary Committee,
Washington, DC.
Dear Senator Leahy: The South Carolina Legislative Black
Caucus (SCLBC) was formed in 1975 soon after the Civil Rights
Movement in the 1960's. Presently, the SCLBC has 31 members;
seven senators and 24 representatives, including four women.
The SCLBC is dedicated to the struggle for fairness, equality
and justice for all South Carolinians, and to the civic and
political involvement of African-Americans, women and other
racial and ethnic minorities.
We seek to preserve the civil rights strides that occurred
in South Carolina over the decades, and we fight to prevent
any regressive step that threatens to rollback civil rights
and constitutional rights of African-Americans, women and
other racial and ethnic minorities. The nomination of U.S.
District Judge Dennis W. Shedd to the U.S. Court of Appeals
for the Fourth Circuit represents such a regressive step, and
accordingly, we strongly oppose the nomination.
African-Americans constitute a full one-third of South
Carolina's population, yet there is only one active African-
American federal judge in the state. And, there are only two
South Carolinian female federal judges, one on the federal
District Court and the other on the Fourth Circuit. This is
unfair and unjustified because there are many well-qualified
African-American and woman jurists and lawyers who deserve an
opportunity to serve this nation on the federal judiciary.
Because African-Americans are one-third of South Carolina's
population and the Fourth Circuit has a greater number of
African-Americans than any circuit, it is critical that any
nominee, especially one from South Carolina, be an unabashed
champion of civil rights. The appointee should have a record
that demonstrates fairness and justice to all people. Based
on our careful review of Judge Dennis Shedd's performance on
the U.S. District Court for the District of South Carolina,
we have concluded that his record shows a serious hostility
to civil rights and constitutional protections.
Since his appointment to the federal bench in South
Carolina, Judge Shedd has engaged in right-wing judicial
activism by imposing strict and exacting standards when
reviewing employment discrimination cases brought by African
Americans and women. He has dismissed almost every employment
discrimination, sexual harassment, civil rights and
disability case that has come before him. Judge Shedd seems
to believe that discrimination is not an actionable offense
even when the Equal Employment Opportunity Commission has
found ``reasonable cause'' that discrimination has occurred.
Judge Shedd, however seems to apply a more lenient standard
in reviewing discrimination cases brought by white men. Judge
Shedd has allowed four out of five ``reverse'' discrimination
cases to proceed beyond the summary judgment phase of
litigation.
This record shows that Judge Shedd does not have an abiding
concern for civil rights and fairness. It further shows that
Shedd lacks the requisite moderate reasoning to bring balance
to the Fourth Circuit. In fact, his membership to the Fourth
Circuit would push it further beyond the mainstream of
American values and would subject South Carolinians and
residents of other states within the Fourth Circuit to an
extreme right-wing interpretation of the nation's civil
rights laws and constitutional protections.
Accordingly we oppose Judge Shedd's nomination without
reservations. Hi values represents the Old South, where
African Americans and women were judged by different and
unequal standards.
We appreciate your attention. If you have any questions,
please contact me at the address and telephone number above.
Sincerely
Joseph H. Neal,
Chairman.
____
National Association for the
Advancement of Colored People,
Baltimore, MD, September 17, 2002.
Re Fourth Circuit Nomination of Judge Shedd.
U.S. Senate, Washington, DC.
Dear Senator: On behalf of the NAACP, the nation's oldest,
largest and most widely-recognized grass roots civil rights
organization, I am writing to let you know of the
Association's strong opposition to the nomination of District
Court Judge Dennis W. Shedd to the Fourth Circuit Court of
Appeals. Delegates from every state in the nation, including
the five states comprising the Fourth Circuit, unanimously
passed a resolution from the South Carolina State Conference
in opposition to the nomination at the NAACP's annual
convention in Houston in early July.
Members of the NAACP believe that the Federal judiciary, as
the final arbiter of the U.S. Constitution, is the branch of
government primarily charged with protecting the rights and
liberties of all Americans. In many instances in our nation's
history, the courts have been the only institution willing to
enforce the rights of minority Americans. We cannot afford to
permit the Federal judiciary to retreat from its
constitutional obligation and resort to the type of judicial
activism that threatens civil rights and civil liberties.
No other federal circuit reflects this extreme right-wing
activism more than the Fourth Circuit Court of Appeal, which
is home to more African Americans than any other circuit. The
Fourth Circuit Court of Appeals' hostility to civil rights,
affirmative action, women's rights, voting rights and fair
employment is unrivalled. Its decisions are so far out the
mainstream that the Supreme Court has reversed the Fourth
Circuit on basic constitutional protections such as Miranda
warnings.
Judge Shedd's addition to the Fourth Circuit would further
relegate that court to the periphery of judicial mainstream.
His judicial record and testimony before the Judiciary
Committee reflect a disposition to rule against the plaintiff
in employment and discrimination cases. Moreover, his
restrictive view of federal legislative authority, as
indicated in Condon v. Reno, 972 F. Supp. 977 (D.S.C. 1997),
which struck down the Driver's Privacy Protection Act of
1994, 18 U.S.C. Sec. Sec. 2721-25 and was later overturned in
a 9-to-0 decision by the Supreme Court, confirms our
perspective that Judge Shedd's judicial philosophy and
temperament would further push the Fourth Circuit to the
right-wing.
Accordingly, as unanimously passed by the over 1,200
delegates to the 2002 NAACP National Convention, I ask that
you oppose the nomination and that you use your influence to
encourage the Senate Judiciary Committee to not vote him out
of Committee. However, if the nomination makes it to the
Senate floor, we ask you to vote against it.
I appreciate your attention and interest in this important
matter. Please do not hesitate to contact me or Hilary
Shelton, Director of the NAACP Washington Bureau at (202)
638-2269, if we can be of assistance.
Sincerely,
Kwesi Mfume,
President & CEO.
____
South Carolina State Conference, National Association for
the Advancement of Colored People,
Columbia, SC, June 24, 2002.
Senator Patrick Leahy,
Chairman, Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Dear Chairman Leahy: We write to oppose the nomination of
Dennis Shedd to the Fourth Circuit Court of Appeals.
By now, you must be familiar with the importance of the
Fourth Circuit to the African American Community. Almost a
quarter of the Fourth Circuit's residents are African
American. The Fourth Circuit, with over 6 million African
Americans in the five states, has the greatest number of
African Americans of any Circuit Court in the country. The
Latino population within the Fourth circuit now at more than
one million persons, has nearly tripled in the last decade.
Based on these demographics, more may be at stake here for
the future of civil rights than in any other Circuit Court in
the country.
The Fourth Circuit is already an extremely conservative
Court on civil rights and Constitutional issues. This Circuit
ruled that
[[Page S11263]]
federal law-enforcement officials need not follow the Miranda
decision, only to be reversed by the Supreme Court. This
Circuit authorized drug testing for pregnant women without
their consent which was reversed by the Supreme Court. This
Circuit ruled that the Equal Employment Opportunity
Commission was limited to remedies contained in employee
arbitration agreements, and again, was reversed by the
Supreme Court. The Circuit also has been reversed recently in
capital habeas corpus cases and citizen suits under
environmental. laws. The Fourth Circuit has issued numerous
other opinions that are hostile to affirmative action,
women's rights, fair employment, and voting rights.
This is also the Court to which moderate African American
nominees were repeatedly denied membership. No fewer than
four African Americans were nominated to this Court by
President Clinton, only to have their nominations languish
for years due to Senatorial obstruction. Thus, if a nominee
is to be confirmed to this Court, the nominee must be a
jurist who will bring moderation and ideological balance to
this Court. It is our strongly held view that this nominee is
not Dennis Shedd.
Judge Shedd's judicial record reveals a deep and abiding
hostility to civil rights cases. A review of Shedd's
unpublished opinions reveals that Judge Shedd has dismissed
all but very few of the civil rights cases coming before him.
In nearly thirty case involving racial discrimination in
employment, he granted summary judgment for the employer in
whole or in part in all but one case; most of the cases were
dismissed altogether. Many of these cases were strong cases
with compelling evidence an litigated by experienced civil
right lawyers.
Gender and disability discrimination cases before Judge
Shedd fare no better. He has granted summary judgment on
every sexual harassment claim on which summary judgment was
requested. Collectively, these ruling leave us with the
distinct impression that, in Dennis Shedd's view of the
world, discrimination does not exist, and just as
importantly, a jury should never be asked even to decide that
question.
We are profoundly disturbed by the mounting evidence of
Judge Shedd's zealous efforts to assist the defense in civil
rights cases. There are repeated instances of Judge Shedd's
intervention in civil rights cases--without prompting by the
defendant--in ways that are detrimental to the plaintiff's
case. In a number of cases, Judge Shedd, on his own motion,
has questioned whether he should dismiss civil rights claims
outright or grant summary judgment. He has invited defendants
to file for attorney's fees and costs against civil rights
plaintiffs. These are not the actions of an impartial
decision-maker.
We are extremely concerned about Judge Shedd's rulings
promoting ``States' rights,'' and view these as a fundamental
encroachment on Congress's ability to enact civil rights and
other legislation. Judge Shedd has a very restrictive view of
Congressional power. He struck down the Driver's Privacy
Protection act of 1994 as legislation beyond Congress's
power, although this legislation was an ``anti-stalking''
measures designed to prohibit public disclosure of drivers'
license information. In an opinion authored by Chief Justice
Rehnquist, the Supreme Court unanimously overturned Judge
Shedd's ruling and refuted his reasoning. This stand as one
of the few occasions in which the Supreme Court rejected
unanimously a holding that Congress exceeded its power in
enacting a statute.
The question of judicial temperament is raised by Judge
Shedd's offensive remarks during a judicial proceeding about
an issue that strikes at the heart of many--the Confederate
flag. Judge Shedd presided over a federal lawsuit seeking the
removal of the Confederate flag from the dome of the South
Carolina Statehouse. According to press accounts of a hearing
held in the case. Judge Shedd made several derogatory
comments about opposition to the flag. First, he attempted to
marginalize opponents to the flag by questioning whether the
flag matters to most South Carolinians. (It does, and thirty
percent of South Carolina's population is African American.)
He also minimized the deep racial symbolism of the flag by
comparing it to the Palmetto tree, which appears in South
Carolina's State flag.
Our membership in South Carolina, deserves to be
represented on the Circuit by a nominee who has a record of
judicial impartiality, is committed to the progress made on
civil rights and individuals liberties, and has a deep
respect for the responsibility of the federal judiciary to
uphold that progress. Dennis Shedd is not that nominee. We
urge you and the Senate Judiciary Committee to vote against
his nomination.
Sincerely,
James Gallman,
President.
____
The National Black Caucus
of State Legislators,
Washington, DC, September 19, 2002.
Hon. Patrick J. Leahy,
U.S. Senate, Chair, Committee on the Judiciary, Dirksen
Senate Office Building, Washington, DC.
Re Fourth Circuit Nomination of Judge Shedd.
Dear Senator Leahy: The National Black Caucus of State
Legislators (NBCSL) is the body that represents some 60
African American state legislators in 44 states, the District
of Columbia and the U.S. Virgin Islands. Last year, we
celebrated our 25th year of involvement and dedication to
many of the most pressing social issues and policies that
impact our legislators' districts and the nation at large.
Our commitment is to our constituents as well as the national
agenda. Our dedicated work is to maintain the highest values
of civil and human rights insuring that African Americans are
a fair and representative part of the political and social
equations of this great nation.
In their letter to you, dated September 4, 2002, members of
the South Carolina Legislative Black Caucus have spoken
clearly and definitively in opposing the nomination of Judge
Dennis Shedd to the Fourth Circuit. In reviewing the
information presented therein and having also researched the
history and record of Judge Shedd, we find it woefully
deficient regarding the issues of fairness, equality and
justice. Moreover, as has been pointed out by our colleagues
in South Carolina ``African Americans constitute a full one-
third of South Carolina's population yet there is only one
active African American federal judge in the state.'' In that
there are unquestionably ``many, well-qualified African
American . . . jurists'' in South Carolina, this is rightly
seen as an unfair and unequal treatment in the sight of fair
representation. Further, considering the existent
disproportionate representation of jurists of Color,
certainly an effort must be made to insure that any South
Carolina nominee be a strong advocate of civil and human
rights. Rather, Judge Shedd's performance on the U.S.
District Court for the District of South Carolina
demonstrates what could be construed as hostile to civil and
constitutional rights.
We have learned that Judge Shedd's insensitivity to
fairness has been demonstrated in his review of employment
discrimination cases brought by African Americans and in
fact, women, even in such cases when the Equal Opportunity
Commission has found ``reasonable cause.'' But, we have also
found that in furtherance of this questionable action, when
white men bring cases of ``reverse'' discrimination, those
cases proceed. We also note that there have been concerns
raised about the number of unpublished opinions issued by the
Judge and further that such concerns regarding the decisions
were reversed or vacated by the Fourth Circuit Court of
Appeals.
The Fourth Circuit must have a judge who is mindful of the
rightful place that African Americans have in this nation,
and be a strong advocate of civil rights, human rights and
constitutional rights. Any nominee should have demonstrated
his dedication to such virtues and ideals. No other
individuals should be considered for this important position.
For these reasons among others raised by our South Carolina
Legislative Black Caucus, we cannot support the nomination of
Judge Dennis Shedd for the Fourth Circuit and would ask that
the opinion of our body be strongly considered in this
matter. Should you have any questions, or require additional
comment, please contact me.
Very truly yours,
James L. Thomas,
President.
Mr. LEAHY. Before yielding the remainder of my time, I first say to
my friend from Utah, he has been very patient but then he has told us
before he is a patient man.
I yield the floor.
Mr. HATCH. I thank my colleague.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I have been listening to this recitation of
various cases involving Judge Shedd, and I have to say I certainly have
a different viewpoint. Let me go through those cases in approximately
the order that the distinguished Senator from Vermont listed them.
My colleague referred to Shults v. Denny's Restaurant. This was an
Americans with Disability Act and slander case where Judge Shedd sua
sponte considered summary judgment and ordered the plaintiff to file a
memorandum in opposition to the court's sua sponte motion for summary
judgment. This action by Judge Shedd was again based on jurisdictional
defenses raised in the defendant's answer: Failure to file within the
2-year statute of limitations and failure to exhaust the administrative
Equal Employment Opportunity Commission review.
In the order, requesting the plaintiff to file a memorandum, Judge
Shedd wrote:
Although the express language of rule 56 provides only for
the parties to move for summary judgment, Federal district
judges possess the inherent power to raise, sua sponte, an
issue for possible resolution by summary judgment.
Therefore, Judge Shedd had the right to bring this motion under the
Rules of Civil Procedure.
My colleague refers to Lowery v. Seamless Sensations. This was a
title VII case in which the defendant raised the defense that the
plaintiff failed to timely file both a charge of discrimination with
the EEOC and the lawsuit.
[[Page S11264]]
Both are jurisdictional prerequisites to any Federal court action.
Since that defense called into question the court's subject matter
jurisdiction, Judge Shedd expedited consideration of those defenses.
Remember, it would serve no purpose for the court to proceed on the
merits where the court had no jurisdiction. In order to expedite
consideration of the issues, Judge Shedd ordered the defendant to file
a motion to dismiss based on those defenses. Judge Shedd further
ordered that motion should be filed in his court instead of the
magistrate court assigned to the case. Ultimately, the defendant was
granted summary judgment on the grounds that the plaintiff could not
establish a prima facie case. Therefore, the case survived the above-
discussed motion to dismiss, evidencing that although he raised the
issue, Judge Shedd fairly evaluated the merits of the case.
In another matter, my colleague makes a special mention of Coker v.
Wal-Mart. Let's look at this case to see where again my colleague gets
it wrong. In this case, the defendant removed the case from State to
Federal court. Judge Shedd sua sponte questioned whether removal was
appropriate, as it appears the motion for removal had been filed
outside the 30-day time limitation established in 28 U.S.C. section
1446(b). Doubting whether he had the authority to remand the case sua
sponte, Judge Shedd stated he would permit the defendant to file a
brief addressing whether removal was timely and whether the court had
authority to remand.
Rather than assisting the defense, Judge Shedd raised the issue of
remand, and held the defendant to the proper burden of showing that
removal was proper. He aided the plaintiff, who had apparently failed
to raise the issue, this is exactly the opposite of what the
distinguished Senator from Vermont has said. Judge Shedd had a duty to
raise the removal issue, a purely jurisdictional matter, and he gave
the defendant the opportunity to challenge his sua sponte action, which
is what a good judge would do.
My colleague also refers to Gilmore v. Ford Motor Company, a product
liability case. In that case, Judge Shedd sanctioned the plaintiff for
failure to prosecute the action by dismissing the case. He made that
determination after he properly evaluated each of the factors
established by the Fourth Circuit in Ballard v. Carson. Indeed, my
colleague in the Senate worries more about this case than did the
plaintiff. The plaintiff failed to respond to this motion to dismiss
for failure to prosecute after earlier failing to respond to the
defendant's motion to compel discovery.
Notably, my colleague did refer to Simmons v. Coastal Contractors,
Inc., a discrimination and retaliation employment case in which both
parties represented themselves pro se. Judge Shedd sua sponte brought
the petitioners before the court and ordered the plaintiff to cure
specific deficiencies in his complaint or face dismissal. This decision
was an attempt to aid the plaintiff in properly drafting his complaint.
My colleague refers to Tessman v. Island Ford-Lincoln-Mercury, a
title VII case, where Judge Shedd sua sponte challenged the court's
subject matter jurisdiction, given the plaintiff's apparent failure to
allege that she had first presented her claim to the EEOC and received
a right-to-sue letter. He ordered the action dismissed unless the
plaintiff could show cause why that action should not be taken by the
court. This is a wholly appropriate approach and probably the only
approach that could have been taken by any good judge.
My colleague refers to Smith v. Beck, a 1983 gender discrimination
case in which several women alleged discrimination when they were not
admitted, without male escorts to a nightclub featuring nude female
dancers. Judge Shedd sua sponte questioned whether the plaintiffs'
allegation sufficed to establish the defendant private club's actions
were under color of State law. Based on his conclusion that merely
operating an establishment that has a State liquor license does not
transform a club into a State actor, Judge Shedd dismissed the case. In
other words, he analyzed the law, as he should.
In short, my colleague has suggested that Judge Shedd ``assists the
defense.'' That is so highly misleading a charge it is hard to take it
seriously. But I suppose I must since it has been raised. The truth is
that a judge's discretion in assisting either side to get their case
right is fairly wide, but within bounds that Judge Shedd has not
crossed. The Supreme Court of the United States has written:
[D]istrict courts are widely acknowledged to possess the
power to enter summary judgments sua sponte, so long as the
losing party was on notice that she had to come forward with
all of her evidence.
The Fourth Circuit Court of Appeals held that:
It is a fundamental precept that Federal courts are courts
of limited jurisdiction, constrained to exercise only the
authority confirmed by Article III of the Constitution and
affirmatively granted by Federal statute. A primary incident
of that precept is our duty to inquire, sua sponte, whether a
valid basis for jurisdiction exists, and to dismiss the
action if no such ground appears.
The truth is that in each of the cases in which Judge Shedd acted sua
sponte, he provided the proper notice and opportunity to respond to the
plaintiff.
Perhaps my colleague will be less troubled than he appears to be when
he learns that none of the cases he refers to where Judge Shedd
supposedly assisted the defense were reversed on appeal. Not one. It
seems it would be best to leave the litigation of cases to the parties,
lawyers, and judge involved rather than second-guess them on the floor
of the Senate.
I, for one, am getting a little tired of some of our colleagues on
the other side acting as if every plaintiff's case has to be won no
matter what the facts and the law support. Actually, some of those
cases have to be lost because they are not good cases.
Now let's just be honest about it. Cases are decided by judges and
jurors--judges in nonjury cases and juries in jury cases. I have seen a
lot of cases where plaintiffs have not won because they should not have
won. To criticize judicial nominees for ruling against plaintiffs is
nonsensical because every judge should decide against plaintiffs when
they are wrong. It does not take brains to figure that out. But I guess
for some on the other side, unless the plaintiff wins there is an
injustice.
My colleague criticizes Judge Shedd's ruling in Condon v. Reno with
the aim of characterizing his judicial ideology in the process.
I was shocked to learn by one of Judge Shedd's detractors that he is
a ``sympathetic participant in [a] judicial campaign to disempower
Congress,'' and that he is a judge who ``resort[s] to outdated and
reactionary views of federal power.''
I am sure this came as a surprise to Judge Shedd as well.
Condon v. Reno concerned the Driver's Privacy Protection Act. Judge
Shedd held in Condon that the Act violated the Tenth Amendment in that
it improperly commanded states to implement federal policy.
The 4th Circuit affirmed Judge Shedd's ruling, while the Supreme
Court ultimately reversed it. But this was clearly a difficult call to
make; in fact, the lower federal courts that addressed the issue split
evenly before the Supreme Court ruling, eight finding the Act
constitutional and eight finding it unconstitutional.
Those finding the Act unconstitutional together with Judge Shedd
included Judge Barbara Crabb, Chief Judge of the Western District of
Wisconsin, a Carter appointee, and Judge John Gobold of the 11th
Circuit, a Johnson appointee. Several Democrat Governors across the
nation, including Democrats Jim Hunt of North Carolina, Jeanne Shaheen
of New Hampshire and Don Siegelman of Alabama permitted their
respective State Attorneys General to sign onto an amicus brief urging
the Supreme Court to find the Act unconstitutional.
In addition, the Democrat Attorney General of Wisconsin also signed
the amicus brief. So, reasonable minds can differ on these matters.
It seems to me that either the vast right wing campaign to
``disempower'' Congress is either much larger than previously supposed,
or that this was a case in which thoughtful, and respected judges
could, and indeed did, disagree.
Of course, my colleagues ignore another federalism case of Judge
Shedd's United States v. Brown. That case involved the Gun Free School
Zones Act.
The defendant challenged the constitutionality of the Act on
federalism
[[Page S11265]]
grounds. Judge Shedd allowed the prosecutor to prove facts at trial
that the Act was a valid exercise of Congressional power.
The Supreme Court later invalidated the Gun Free Zones Act in United
States v. Lopez. Unlike the Condon v. Reno, Judge Shedd upheld the
exercise of federal power, yet not surprisingly, his critics point us
to the Condon case but not to the Brown case.
That is amazing to me.
My colleague again comments on Judge Shedd's ruling in Crosby v.
South Carolina Department of Health.
Interestingly he did not raise the same objections to Judge Roger
Gregory who ruled to uphold Judge Shedd's ruling when he was before us
last year. One wonders why?
Judge Shedd is criticized for adopting a magistrate report striking
down as unconstitutional part of the Family Medical Leave Act after a
state agency cited 11th amendment sovereign immunity against an
employee lawsuit.
Of course, the fact that eight of nine Circuit Courts have agreed
with his ruling seems not to concern my colleagues, including the
First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Eleventh
Circuits.
In fact, numerous Democrat-appointed judges agreed with Judge Shedd,
including Carter appointees Amalya Kearse of the First Circuit, Richard
Arnold of the Eighth, and Robert Anderson of the Eleventh; and Clinton
nominees Sandra Lynch and Kermit Lipez of The First Circuit, Theodore
McKee of the Fourth, Kermit Bye of the Eighth, Jose Cabranes of the
Second Circuit, and Roger Gregory of the Fourth Circuit. Those are
able, distinguished judges.
It should not come as any surprise that the Ninth Circuit is the only
Circuit Court which has ruled the other way.
One would think from this near universal agreement that Judge Shedd's
ruling in Crosby would seem reasonable one, one well within the
judicial mainstream, no matter how we look at it. And yet he is
criticized for it here on the floor.
In the area of Criminal Justice, my colleague makes special mention
of the Quattlebaum murder case. Let's look at that case to see where my
colleague gets it all wrong.
In that case, officers took into custody a murder suspect, Mr.
Quattlebaum. During police questioning of Quattlebaum, which
Quattlebaum was informed was being videotaped, the deputy sheriff left
the room. Soon after the deputy sheriff left the room, he went to the
room where the videotaping was being done and noticed that an attorney
was now in the room with Quattlebaum, despite the fact that no one was
to have access to that room other than law enforcement. The deputy
sheriff immediately consulted with superiors and legal advisors as to
what to do about the running videotape, but the damage--i.e., recording
an attorney-client conversation--had already been done.
In response to the videotaping, prosecutors indicted the deputy
sheriff for a civil rights violation. Mr. Quattlebaum's attorney, on
the other hand, about whom my colleague appears concerned, ended up
being indicted for perjury based on his grand jury testimony that he
had not released the protected videotape to the media, and spent 4
months in prison.
The deputy sheriff pled guilty to charges based on the videotaping of
the attorney-client conversations.
My colleague has expressed concern that the deputy sheriff who
conducted the improper videotaping was not more heavily penalized by
comparison to the defendant's attorney who perjured himself after
releasing the protected tape to the media.
That concern is easily assuaged. The sentencing range in the
guidelines for the offense to which the deputy sheriff pled guilty was
zero to six months imprisonment, one year of supervised release, and a
fine of $1,000 to $10,000. The Government moved for a downward
departure of the zero to six months jail time for the police officer
based on his assistance in the prosecution of related matters.
As Judge Shedd acknowledged during the sentencing hearing, in order
to depart downward, he had to issue a sentence that was less than the
minimum in the guidelines range, i.e., since less than zero time in
prison is not possible, Judge Shedd, in accepting the downward
departure request had to impose a fine that was less than $1,000 and
could not impose any jail time on Mr. Grice.
Judge Shedd's sentencing decisions were controlled by the crimes
charged and the related sentencing guidelines enacted by Congress.
Judge Shedd's sentence of a fine without jail time was mandated by the
guidelines once the government's request for downward departure was
accepted.
My colleague's concern for the trail lawyer who served 4 months for
perjury, after releasing a privileged videotape to the media, is not
altogether clear to me, especially since that unethical conduct caused
a convicted murderer to escape his sentence.
The concern is also strange given that my colleague expressed the
opposite concern with regard to Judge Charles Pickering for questioning
the inequitable result of mandatory sentencing guidelines.
Look, let me just bring this to an end by reading a letter of one of
the attorneys involved in that case. This is a letter to me by E. Bart
Daniel, attorney at law in Charleston, SC. It is regarding the
nomination of Dennis W. Shedd to the Fourth Circuit Court of Appeals.
Dear Senator Hatch: I have been a practicing attorney in
South Carolina for over 22 years. During my career, I have
served as an Assistant State Attorney General, an Assistant
U.S. Attorney, a United States Attorney under the previous
President Bush and an active federal trial attorney. My
practice over the years has developed into primarily a
``white collar'' criminal defense practice. I have appeared
many times in court before Judge Shedd and found him to be
courteous and fair. He has exhibited great integrity and a
strong character while on the bench.
One of the most difficult cases in which I appeared before
Judge Shedd was in United States v. John Earl Duncan (3:99-
638-001). Mr. Duncan was a practicing attorney who was
convicted of perjury. Judge Shedd sentenced him to four
months in a federal penitentiary and four months in a
community confinement center (halfway house). He fined him
$33,386.92. Judge Shedd's decision was a difficult one, but
fair. As his counsel, we recognized that Judge Shedd would be
compelled to sentence Mr. Duncan to an active term of
incarceration since he was a practicing attorney who had been
convicted of lying to a federal grand jury.
During the sentencing phase of the Duncan case, Judge Shedd
was courteous and patient and listened intently to the many
people who spoke on our client's behalf including my co-
counsel Dale L. DuTremble and me.
I know of no judge more qualified for the position than
Judge Shedd. If you have any questions or I can be of any
further support, please do not hesitate to call.
That ought to put that to bed.
In all honesty, the charges against Judge Shedd that have been raised
are shameful; absolutely shameful. It makes you wonder. Why? Why are we
putting a really fine Federal district court judge who served almost 13
years on the bench with a distinguished record through this type of
bitter and I think shameless set of accusations?
We had originally agreed with the Democrat leadership to confirm
Judge Shedd late last week along with other judicial nominees by
unanimous consent, but instead, base politics appears to have
intervened. I am hopeful we can get this done tomorrow.
According to an article by Byron York in National Review Online on
Friday afternoon, it is clear what happened. He writes that, after the
Shedd vote in the Judiciary Committee on Thursday, the usual left-wing
groups, including, he writes, People for the American Way, Leadership
Conference on Civil Rights, Alliance for Justice, and the National
Abortion Rights Action League, all urged Democrat Senators ``to
continue the fight against Dennis Shedd in the full Senate.'' He quotes
one leader as warning that, ``controversy will follow these nominations
to the Senate floor.''
Here we are about to engage in the longest debate on a Senate nominee
on the Senate floor this year. The special interest groups said jump,
and so today we will jump high, and I guess tomorrow as well.
I am not complaining entirely. I am grateful to the distinguished
chairman. I know it is a tough job to be chairman of the Judiciary
Committee, and I hope this is not his fault. I am not shy of any debate
on the President's superbly qualified judicial nominees.
But I do fear that, once again the American people will roll their
eyes that, when we have as much to do in the Senate that is still
undone, the leadership would think that a divisive
[[Page S11266]]
and lengthy debate on a judicial nominee is a good idea.
But I understand why it is happening. I am not a newcomer here. It
appears to be happening because of the Louisiana Senate election.
It has been rumored and reported that the Northern liberals who hold
the money strings and the liberal special interest groups here in
Washington who claim to represent African American interests--have said
that the money won't flow and folks won't help get out the vote in
Louisiana unless Judge Dennis Shedd, Senator Thurmond's former counsel
gets slowed down yet again.
(Mr. ROCKEFELLER assumed the Chair.)
Mr. HATCH. Now, look, most of us who have served on the Judiciary
Committee for a number of years have known Judge Dennis Shedd. He was
chief of staff to Senator Thurmond when he was chairman of the
committee, and his chief counsel when he was not chairman.
I have known him for most of my time in the Senate. He is one of the
finest people I have ever known. He is also one of the better Federal
district court judges in the country. Judge Shedd is a decent man. I
resent his being dragged through this process for months, as he has
been. Senator Thurmond's last request has gotten slowed down again.
Now, I am grateful we are going to have a vote on him tomorrow, up or
down. I surely hope my colleagues will look at his record, and not look
at the distortions of his record, and will vote for him and will
support Senator Thurmond and those of us who know him, and know him
well.
I think some have trouble getting the message. The message I got from
the recent election is perhaps different than what my colleagues across
the aisle received. As far as I see it, the President took three issues
to the American people: his Iraq policy, homeland security, and his
judicial nominees. Of course, he had other issues, but those were the
three primary issues.
The election showed that Americans trust this President, including in
his selection of judicial nominees. The election indicated voters
rejected the obstruction in the Senate we experienced this last year,
including on judicial nominees. Voters especially rejected the
shrillness and the distortions of reputations they read and heard about
in hundreds of news stories, scores of editorials, and dozens of op-
eds, and those they saw on TV. Voters sent us a clear message, it seems
to me, that we should end the obstruction and maltreatment of judicial
nominees, and yet here we are about to engage in hours of debate that
will largely see the race card played, and the role of judges--and one
judge, in particular--distorted and mischaracterized.
Today, at the behest of the so-called Washington civil rights lobby,
now a wholly owned subsidiary of plaintiffs' trial lawyers, my friends
on the other side will spend a business day describing an experienced
judge as biased, as pro this and anti that, and now I am afraid some of
my Democratic colleagues can no longer evaluate judges as unbiased
umpires who call the balls and strikes as they are, not as they alone
see them, and not as they want them to be.
Now, it is silly to suggest an umpire is pro bat or pro ball or pro
batter or pro pitcher, but, of course, trial lawyers, and those who
shill for them, have an interest in exactly such scorekeeping. To say
all plaintiffs have to win all cases is just nuts, but yet that is what
we have been getting lately.
But even this is not what bothers me the most about the debate that
has been scheduled today. I am reminded of what my friend Senator
Kennedy said in 1982 about those who opposed extending the Voting
Rights Act. Senator Kennedy lamented in 1982 that ``there are those
among us who would open old wounds . . . [and] refight old battles.''
Mr. President, they say the more things change, the more they stay
the same--well, almost the same.
Now, with that regret expressed, I wish to express my
great satisfaction that the Judiciary Committee has favorably
recommended the nomination of Judge Dennis Shedd of South Carolina for
a vote of the full Senate.
Mr. President, Senators feel very strongly about their staffs. Our
legal counsels make uncounted sacrifices to work for us and for the
American people. We are surrounded by very talented lawyers who forego
larger salaries for the sake of public service. Sometimes they put
their personal opinions aside to advocate ours.
We Senators take it very personally when they are nominated and given
the opportunity for yet higher public service. It has been the
tradition of the Judiciary Committee to give great courtesy to former
staffers. I certainly take it very personally, and know Senator
Thurmond does, too, that we have not done so in the case of Dennis
Shedd, who has served with distinction for the last 12 years as a
Federal district court judge in South Carolina.
When Judge Shedd was nominated to the Federal trial bench, Chairman
Biden had this to say to him:
I have worked with you for so long that I believe I am
fully qualified to make an independent judgment about your
working habits, your integrity, your honesty, and your
temperament. On all these scores, I have found you to be
beyond reproach.
Now, this is high praise indeed from a colleague on the other side of
the aisle for whom we all have the greatest respect. Judge Shedd has
strong bipartisan support in his home State as well, and not only from
Senator Thurmond and Senator Hollings--a Republican and a Democrat--he
is also strongly supported by Dick Harpootlian, South Carolina State
chairman of the Democratic Party, and himself a trial lawyer.
Let me just say that again. Judge Shedd is not only supported by my
distinguished Democrat colleague, Senator Hollings, but also by the
Democratic Party chairman in South Carolina. This suggests a reality
far from the slogans and distortions launched against President Bush's
nominees, and in particular Judge Shedd.
First, it has been suggested that Judge Shedd will add to what
liberals and plaintiffs' trial lawyers perceive as conservative appeals
court--or at least on the issues that profit them. But contrary to the
divisiveness card that his detractors are playing, Judge Shedd will add
diversity to that Court.
Mr. President, Dennis Shedd has served as a federal jurist for more
than a decade following nearly twenty years of public service and legal
practice. While serving the Judiciary Committee, Judge Shedd worked,
among many other matters, on the extension of the Voting Rights Act,
RICO reform, the Ethics in Post-Employment Act, and the 1984 and 1986
crime bills.
As Senator Biden put it: ``His hard work and intelligence helped the
Congress find areas of agreement and reach compromises.''
That leads me to address a few issues that have been raised by his
detractors.
Mr. President, the last five Fourth Circuit confirmations have all
been Democrats.
What seems to me more important to focus on--and what the American
people want us to focus on--is that when Judge Shedd joins the other
members of the Fourth Circuit, he will not only have unmatched
legislative experience, he will also have the longest trial bench
experience on the Fourth Circuit Court of Appeals.
Interestingly, by way of disproving some of my colleagues' diversity-
mania, the last Democrat confirmed to the Fourth Circuit Court of
Appeals, Judge Gregory, has affirmed Judge Shedd's rulings in 11
appeals. Notably, Judge Gregory agreed with Judge Shedd's ruling in the
Crosby case, which found that the Family and Medical Leave Act was
improperly adopted by Congress, a case which the liberal groups seem
worked up about when it comes to Shedd but not when it came to Judge
Gregory. No one asked Judge Gregory about his ruling in Crosby when he
was before the Judiciary Committee last year. But may Democrat
colleagues drilled Judge Shedd on it. Talk about discrimination.
Mr. President, Judge Dennis Shedd has heard more than 5,000 civil
cases, reviewed more than 1,400 reports and recommendations of
magistrates, and has had before him nearly 1,000 criminal defendants.
Judge Shedd's record demonstrates that he is a mainstream judge with
a law reversal rate. In the more than 5,000 cases Judge Shedd has
handled during his 12 years on the bench, he has been reversed fewer
than 40 times--less than 1 percent.
[[Page S11267]]
Detractors have made much of the fact that he has relatively few
decisions he has chosen to publish. But, in fact, he falls in the
middle of the average for published opinions in the Fourth Circuit. One
Carter appointee has published all of 7 cases, one Clinton appointee
has published only 3, and another Carter appointee has published 51,
only one more than Judge Shedd, despite being on the court for 10 years
longer.
Judge Shedd is known for his fairness, for his total preparation, and
for showing no personal bias in his courtroom. This is not just my
opinion; this reflects the opinions of lawyers who practice before him.
Judge Shedd is well-respected by members of the bench and bar in South
Carolina. According to the Alamanc of the Federal Judiciary, attorneys
said that Judge Shedd has outstanding legal skills and an excellent
judicial temperament.
Here are a few comments from South Carolina lawyers: ``You are not
going to find a better judge on the bench or one that works harder,''
``He's the best federal judge we've got.'' ``He gets an A all around.''
``It's a great experience trying cases before him.'' ``He is polite and
businesslike.''
Let me take a moment also to address one of the more ludicrous
attempts to discredit Judge Shedd that has been raised: that when he
was confirmed to the District Court bench he had little experience in
the practice of law.
I have to say that to ignore the remarkable experience Dennis Shedd
had in legislation practice crafting historic laws while serving the
Judiciary Committee is some chutzpah. To raise an objection like that
almost 13 years after the fact is just plain silly. But it goes to show
what we have to put up with in the obstruction and distortions of this
past year.
Let's be clear, when Judge Shedd joins the other members of the
Fourth Circuit, he will not only have unmatched legislative experience,
he will also have the longest trial bench experience on the Fourth
Circuit. He will also add some diversity to that court. The last five
Fourth Circuit confirmations have all been Democrats.
I have to say that the most misleading criticism raised about Judge
Shedd involves his employment cases.
Downright deceptive is that Judge Shedd's detractors, the outside
liberal groups, have now taken to grouping and describing employment
cases as civil rights cases.
They want us to believe that every quarrel between an employee and
her employer rises to a Rosa Parks significance. No doubt every
plaintiff's trial lawyer would like to think of themselves as a
Thurgood Marshall. But this deception is unfortunate and a disservice
to the cause of civil rights that I have longed championed in this
Chamber.
Cloaking every small, perhaps even frivolous, employment case with
the mantle of the civil rights movement, Washington's professional
nominee detractors have been particularly misleading on Judge Shedd's
employment cases.
They have misleadingly pointed out that the Judge seldom grants
summary judgment in employment cases in favor of the employee. Of
course, they fail to point out that few judges do. Any good lawyer
knows that. Summary judgment is a judgment without a jury, and every
good lawyer knows that employment cases are inherently fact-laden and
go to trial by a jury or more often they settle. Or in many cases, the
employee fails to state a claim and the case has to be dismissed.
Of course, Judge Shed's detractors could have noticed that he has
only twice been reversed in his decisions in employment cases. But of
course, they did not notice that.
They might have pointed out that in one of the appeals that he was
invited to hear for the Fourth Circuit, he reversed a summary judgment
and remanded for trial a political discrimination case against a worker
who was a Democrat. But they did not do that either.
Judge Shedd's detractors have also made irresponsible claims as to
the Judge's criminal case record.
In fact, in criminal cases, Judge Shedd has strongly defended
citizens due process rights from violation by the state. He has
frequently chastised law enforcement for errors in search warrants an
the questionable use of seized property. In fact, he has sanctioned the
State for discovery problems. He is known for aggressively informing
defendants and witnesses of their fifth amendment rights.
Remarkably, Judge Shedd has never been reversed on any ruling
considered before or during trial, or on the taking of guilty pleas.
His detractors have somehow failed to note this.
The cases that come before a judge are often difficult. Judge Shedd
has not been exempted. In one prisoner's case, Judge Shedd allowed a
detainee to engage in a hunger strike and ruled against government's
attempt to force feed him.
Although some would seek to question Judge Shedd's respect for
privacy in criminal cases, into cases he protected HIV blood
donor's confidentiality. In another case, he ordered special
accommodations to an HIV positive defendant to ensure his continued
clinical treatment.
These are not the rulings of a judge who is insensitive to prisoners
and criminals, but this is the record of a judge who works hard to get
the work of law enforcement right.
Of course, no smear campaign against a Bush judicial nominee, paid
for plaintiffs' trial lawyers, and carried out by their left-wing
lobbyists, is complete without the suggestion that the nominee is foe
of environmental rights.
Of course, in their paint-by-the-numbers attack, Judge Shedd's
detractors have ignored the wetlands protection case where he handed
down tough sanctions against a violator and ordered expensive wetlands
restoration.
The left-wing detractors skipped over Judge Shedd's decision in favor
of National Campaign to Save the Environment.
They missed his ruling to grant standing to a plaintiff challenging a
road construction project on its environmental impact.
They missed his ruling in favor of a woman protesting possible waste
dumping in her community.
The well-paid, left-wing lobbyists who have turned attacking
President Bush's judicial nominees into a small cottage industry see
only what they want to see and not what the truth would show them.
The most breathtaking charge against Judge Shedd was first made by
the NAACP that Judge Shedd has--``a deep and abiding hostility to civil
rights.''
I must admit that was outraged by this when I first read it, and I
still am. It is a distortion far beyond the pale of decency, and I call
on my colleagues once again to repudiate such rabid practices.
In part, I am outraged because there are some who would profile Judge
Shedd as merely a white male from the South and start from there to
give him a certain treatment.
If Judge Shedd's record working for civil rights legislation on the
Judiciary Committee were not enough of an accomplishment for one
lifetime for any man or woman, the truth is that in each of the cases
that have come before Judge Shedd involving the Voting Rights Act of
1965, plaintiffs have won their claims.
In the Dooley case, a one person/one vote case, Judge Shedd gave the
plaintiff a clear and strong decision. In another political rights
case, he ruled to protect the plaintiff's right to make door-to-door
political solicitations.
Of course, Mr. President, you know a lot about a judge by how they
conduct their courtroom. As you know, I have been a strong advocate for
the protection of religious practices in the public square. It says a
lot about Judge Shedd, especially in these times, that he has allowed
religious headdress in his courtroom.
Judge Shedd also led efforts to appoint the first African American
woman ever to serve as a magistrate judge in South Carolina and has
sought the Selection Committee to conduct outreach to women and people
of color in filling such positions. He pushed for an African American
woman to be chief of pretrial services. He has actively recruited
persons of color to be his law clerks.
And because of Judge Shedd's work in an award-winning drug program
that aims to reverse stereotypes amount 4,000 to 5,000 school children,
he was chosen as the United Way's School Volunteer of the Year.
[[Page S11268]]
The Judiciary Committee received a very touching letter from one of
Judge Shedd's former law clerks, Thomas Jones, that we have blown up
here. Perhaps the Presiding Officer will be able to read it from the
chair.
The letter says:
Dear Senator Leahy: My name is Thomas W. Jones, Jr. I am an
African American attorney currently practicing as a
litigation associate in Baltimore, MD. Upon my graduation
from the University of Maryland School of Law, I had the
distinct pleasure of serving as a judicial clerk for the
Honorable Dennis W. Shedd on the U.S. District Court for the
District of South Carolina. During my 18 months of working
with Judge Shedd, I never encountered a hint of bias, in any
form or fashion, regarding any aspect of Judge Shedd's
jurisprudence or daily activities. It is apparent to me that
the allegations regarding Judge Shedd's alleged biases have
been propagated by individuals without the benefit of any
real, meaningful interaction with Judge Shedd, his friends or
family members. I trust the accusations of bias levied
against Judge Shedd will be given the short shrift they are
due, and trust further that this honorable committee will act
favorably upon the pending nomination of Judge Shedd for the
United States Court of Appeals for the Fourth Circuit. Thank
you for your attention regarding this matter. Respectfully,
Thomas W. Jones, Jr.
That was written on June 25 of this year to Senator Leahy.
I will read another letter into the Record as well. This is a letter
from Phyllis Berry Myers, President and CFO of the Center for New Black
Leadership. I believe we received it today. It reads as follows:
Dear Senator Hatch: The Centre for New York Leadership
(CNBL) believes the Senate's judicial nomination system is
broken and needs repairing.
We have watched with great trepidation as the Senate's role
of ``advise and consent'' for Presidential nominations,
especially judicial nominations, has become increasingly,
``search and destroy,'' ``slander and defame.'' It is a
wonder that reasonable, decent people agree to go through the
confirmation process at all.
The confirmation process has become particularly brutal if
the nominee is labeled ``conservative.'' Traditional civil
rights groups mass to castigate and intimidate, as they do
now, attempting to thwart the confirmation of Judge Dennis W.
Shedd to the U.S. Fourth Circuit Court of Appeals.
Once again, we are witnessing the new depth to which public
discourse and debate has sunk when fabrications, statements
taken out of context, misinformation and disinformation can
pass as serious political deliberation and debate. The
vitally needed discussion about continued civil rights
progress in a 21st Century world gets lost in the cacophony.
Our nation and true civil rights advocates are poorer because
of this.
The Senate can restore to itself, at least a modicum, a
sense of fair play, honor, and trust in its own policies and
procedures, a commitment to guarding the civil rights of all,
as well as advancing the rule of law by swiftly confirming
Judge Shedd.
Sincerely,
Phyllis Berry Myers,
President & CEO.
Of course, the liberal groups starkly ignore Judge Shedd's ruling in
the Vanderhoff case. In that case, Judge Shedd dismissed the claim of a
fired employee who repeatedly displayed the Confederate flag on his
toolbox in violation of company policy. Judge Shedd rejected the
plaintiff's contention that he was dismissed because of his national
origin as a ``Confederate Southern American.''
Perhaps my colleagues have sympathy for that plaintiff, too. After
all, the plaintiff was represented by a trial lawyer in this employment
case--or as they would like us to see it, a civil rights case--even
though it was brought on behalf of a true racist.
I looked at a letter that the NAACP sent to the Judiciary Committee,
a letter all the other copycat groups have repeated.
I ask unanimous consent that the letter be printed in the Record so
everybody can see how fake the Washington NAACP has become when they
carry the plaintiffs' trial lawyers' water.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Association for the
Advancement of Colored People,
Baltimore, MD, September 17, 2002.
Re Fourth Circuit nomination of Judge Shedd.
U.S. Senate,
Washington, DC.
Dear Senator: On behalf of the NAACP, the nation's oldest,
largest and most widely-recognized grass roots civil rights
organization, I am writing to let you know of the
Association's strong opposition to the nomination of District
Court Judge Dennis W. Shedd to the Fourth Circuit Court of
Appeals. Delegates from every state in the nation, including
the five states comprising the Fourth Circuit, unanimously
passed a resolution from the South Carolina State Conference
in opposition to the nomination at the NAACP's annual
convention in Houston early July.
Members of the NAACP believe that the federal judiciary, as
the final arbiter of the U.S. Constitution, is the branch of
government primarily charged with protecting the rights and
liberties of all Americans. In many instances in our nation's
history, the courts have been the only institution willing to
enforce the rights of minority Americans. We cannot afford to
permit the federal judiciary to retreat from its
constitutional obligation and resort to the type of judicial
activism that threatens civil rights and civil liberties.
No other federal circuit reflects this extreme right-wing
activism more than the Fourth Circuit Court of Appeal, which
is home to more African Americans than any other circuit. The
Fourth Circuit Court of Appeals' hostility to civil rights,
affirmative action, women's rights, voting rights and fair
employment is unrivalled. Its decisions are so far out the
mainstream that the Supreme Court has reversed the Fourth
Circuit on basic constitutional protections such the Miranda
warnings.
Judge Shedd's addition to the Fourth Circuit would further
relegate that court to the periphery of judicial mainstream.
His judicial record and testimony before the Judiciary
Committee reflect a disposition to rule against the plaintiff
in employment and discrimination cases. Moreover, his
restrictive view of federal legislation authority, as
indicated in Condon v. Reno, 972 F.Supp. 977 (D.S.C. 1997),
which struck down the Driver's Privacy Protection Act of
1994, 18 U.S.C. Sec. Sec. 2721-25 and was later overturned in
a 9-to-0 decision by the Supreme Court, confirms our
perspective that Judge Shedd's judicial philosophy and
temperament would further push the Fourth Circuit to the
right-wing.
Accordingly, as unanimously passed by the over 1,200
delegates to the 2002 NAACP National Convention, I ask that
you oppose the nomination and that you use your influence to
encourage the Senate Judiciary Committee to not vote him out
of Committee. However, if the nomination makes it to the
Senate floor, we ask you to vote against it.
I appreciate your attention and interest in this important
matter. Please do not hesitate to contact me or Hilary
Shelton, Director of the NAACP Washington Bureau at (202)
638-2269, if we can be of assistance.
Sincerely,
Kwesi, Mfume,
President & CEO.
Mr. HATCH. They describe their so-called civil rights complaint, and
it boiled down to something not having anything to do with Judge
Shedd's civil rights record. They project on to Judge Shedd their
complaints about the Fourth Circuit as it currently stands. Though
personally I believe that these charges are unfounded.
Well, Judge Shedd is not on the Fourth Circuit yet.
The NAACP's well-funded complaint is about appellate decisions Judge
Shedd has had nothing to do with. That is remarkably irresponsible for
an organization once so distinguished. Thurgood Marshall would be very
displeased with this sort of sloppy advocacy.
Then the NAACP got to the heart of the matter. In the letter signed
by Kwesi Mfume they show who is paying the bills. On behalf of
plaintiff's trial lawyers, the NAACP complains about Judge Shedd's
employment rulings--not his civil rights or voting rights rulings which
are unimpeachable, but employment rulings. As I have said before, we
know such a complaint has no basis in the reality of how employment
cases are litigated and resolved.
Of course they, too, fail to note that Judge Shedd has only been
reversed twice in employment cases during his 12-year career on the
Federal bench.
The truth is the so-called civil rights attack on Judge Shedd is
nothing but a campaign paid by and for the plaintiff's trial lawyers.
They stoop so low to get their profits that they have put the NAACP,
that once great organization, and other civil rights groups up to do
their dirty work. That bothers me a lot.
Just so I set the record straight, I know a lot of really good trial
lawyers in this country. I know a lot of them who fight for justice,
for rights for the oppressed and for those who are down trodden. I am
not referring to them. I am talking about those who are funding these
vicious left-wing attacks on President Bush's judicial nominees, and
there are plenty of them. They are loaded with dough, and they seem to
want to manipulate the Federal bench like they have some of the State
court benches. It is wrong.
Dennis Shedd is well qualified to serve on the Fourth Circuit Court
of
[[Page S11269]]
Appeals. I think so, and the American Bar Association, hardly a bastion
of conservative politics, has said so.
In supporting his confirmation, I for one express my gratitude on
behalf of the American people for an entire life spent in public
service.
One other letter I will read is a letter from the Congress of Racial
Equality. It is written to Senator Daschle as of today's date. It reads
as follows:
Dear Senator Daschle: This is an open letter in the
interest of justice. The Congress of Racial Equality, CORE,
enthusiastically endorses Judge Dennis Shedd for the Fourth
Circuit Court of Appeals. Despite a Democratic filibuster
against Judge Shedd--
And, of course, I am pleased there is not going to be a filibuster. I
think that is very unwise, and I hope we do not stoop to that level on
either side of the aisle. I thought we had overcome that propensity in
the last number of years. There have been so few in the history of this
body, I hope we do not stoop to that again.
The letter reads as follows:
Dear Senator Daschle: This is an open letter in the
interest of justice. The Congress of Racial Equality (CORE)
enthusiastically endorses Judge Dennis Shedd for the Fourth
Circuit Court of Appeals. Despite a Democratic filibuster
against Judge Shedd, it is the strong opinion of CORE that
Judge Shedd is a more than worthy candidate for the Fourth
Circuit Court of Appeals.
Judge Shedd's character has been under attack without merit
and without fair scrutiny of his service to the American
legal system.
Prior to serving the bench, Judge Shedd served faithfully
from 1988-1990 as Chairman of the South Carolina Advisory
Committee to the U.S. Commission on Civil Rights. A fair and
honest review of Judge Shedd's unpublished opinions would
show that he has sided numerous times with plaintiffs in
cases of race, gender and disability rights without falter or
hesitation. In each case, his decisions have allowed
employment discrimination lawsuits to go forward in the
interest of fairness and truth.
Judge Shedd has shown his commitment to employment rights
for minorities and women, particularly within the court. His
efforts have championed the efforts to recruit and elect the
first African-American U.S. Magistrate Judge in the South
Carolina District, Margaret Seymour. He was actively sought
minority and female candidates for other Magistrate Judge
positions, and has directed the Selected Commission in South
Carolina to bear in mind diversity in the selection of
candidates for these positions.
Judge Dennis Shedd's accomplishments and service have
transcended bi-partisan support even from his home state
Senators, notably, Senators Strom Thurmond and Senator Ernest
Hollings who wholly support his nomination.
In the interest of fairness, balance we ask you to look
past the unfounded partisan attacks of propaganda against
Judge Shedd and fairly examine his work for yourselves. We
strongly believe Judge Shedd's accomplishments and
contributions to justice and civil rights speaks for itself.
We hope that you would join CORE in our support of Judge
Dennis Shedd and urge Senate Democrats to end the unfair
filibuster against him. Let Judge Shedd have his day on the
Senate floor
Sincerely,
Niger Innis,
National Spokesman.
Again, I am pleased there will be no filibuster against this worthy
Federal district court judge who has served with distinction for the
last 12 years. I caution this body, I hope we do not resort to
filibusters on judicial nominees, as has been recommended by some
notable left-wing law professors. Filibustering judicial nominations
should not be done lightly, if at all. When we elect a President, we
elect a President who will have the power to choose his or her judicial
nominees. Senator's have a right to raise any issues against those
nominees, so long as they are honestly raised.
In Judge Dennis Shedd's case, the outside groups have raised a lot of
issues that are not honestly raised. I have not heard any criticisms
against him that are valid in my judgment, and I know Judge Shedd
personally and I have reviewed his complete record.
Just this morning, I received a letter from Joseph Anderson, chief
judge for the District of South Carolina. It is noteworthy that Chief
Judge Anderson was a Democratic member of the South Carolina
Legislature before his appointment to the Federal bench. He served as a
district court judge for 16 years and chief judge for the last 2 years.
He and Judge Shedd have been suite-mates in the Federal courthouse in
Columbia. For all of these reasons, he writes, he believes he is
qualified to comment on Judge Shedd's abilities, qualifications, and
reputation. Judge Anderson writes:
I can say without hesitation that Judge Shedd has a
reputation for fairness, both in his community and on our
court. As Chief Judge, I have received no complaints about
his courtroom demeanor, his decisions, or his procedures. It
is my considered opinion that all people who appear in his
court receive a fair hearing, regardless of the type of cases
involved, or the status of the parties in the case (plaintiff
or defendant.)
The letter continues:
Judge Shedd is scrupulous in his dealings on the court. If
there is any remote suggestion of the appearance of
impropriety, he will not hesitate, and has not hesitated, to
recuse himself and he is very consistent about this.
Chief Judge Anderson then addresses the quality of Judge Shedd's
decisions. He says:
I regularly review the advance sheets of the United States
Court of Appeal for the Fourth Circuit, and it would appear
to me that Judge Shedd has an extremely good affirmance rate
in that court.
He continues:
In regard to the issue of granting summary judgment or
otherwise dismissing cases short of trial, it appears to me
that Judge Shedd's record is no different from any other
judge in this district. That is to say, some of his cases are
ended by a ruling on summary judgment. Those that are not are
then set for trial, and a great number of those eventually
settle--which means that the plaintiff and defendant agree on
the outcome. In regard to summary judgment decisions,
settlements, and actual trials, Judge Shedd's statistics are
not significantly different from any other judge in this
district.
It is ridiculous to say that, because a judge has not granted summary
judgments for plaintiffs, that he was not fair. In employment cases,
often the entire contest is whether the plaintiff survives summary
judgment, after which the case settles. And that is true in Judge
Shedd's cases. Once a summary judgment is refused, that means the case
is going to be tried by a judge or jury, and then the parties settled.
I ask unanimous consent that the letter from Chief Judge Anderson be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. District Court,
District of South Carolina,
Columbia, S.C., November 18, 2002.
In re Dennis W. Shedd, Nominee to Fourth Circuit Court of
Appeals.
Senator Orrin Hatch,
Ranking Republican Member, Judiciary Committee, U.S. Senate,
Dirksen Senate Office Building, Washington, DC
Dear Senator Hatch: This in response to your request that I
provide information regarding Dennis W. Shedd, a judge on our
court, who has been nominated for a position on the United
States Court of Appeals for the Fourth Circuit. I have served
as a United States District Judge for 16 years, the last two
as Chief Judge for our district. I knew Judge Shedd prior to
his appointment as U.S. District Judge, and, subsequent to
his appointment, he and I have served as suite mates in the
courthouse here in Columbia. I therefore, feel that I am
qualified to comment on his abilities, qualifications, and
reputation.
In response to your specific inquiries, I can say without
hesitation that Judge Shedd has a reputation for fairness,
both in his community and on our court. As Chief Judge, I
have received no complaints about his courtroom demeanor, his
decisions, or his procedures. It is my considered opinion
that all people who appear in his court receive a fair
hearing, regardless of the type of cases involved, or the
status of the parties in the case (plaintiff or defendant).
Judge Shedd is scrupulous in his dealings on the court. If
there is any remote suggestion of the appearance of
impropriety, he will not hesitate, and has not hesitated, to
recuse himself and he is very consistent about this.
I regularly review the advance sheets of the United States
Court of Appeal for the Fourth Circuit, and it would appear
to me that Judge Shedd has an extremely good affirmance rate
in that court.
In regard to the issue of granting summary judgment or
otherwise dismissing case short of trail, it appears to me
that Judge Shedd's record is no different from any other
judge in this district. That is to say, some of his cases are
ended by a ruling on summary judgment. Those that are not are
then set for trial and a great number of those eventually
settle before the trial can be conducted. In regard to
summary judgment decisions, settlements, and actual trials,
Judge Shedd's statistics are not significantly different from
any other judge in this district.
I hope this letter is responsive to your inquiry and if you
need any additional information, please do not hesitate to
let me know.
With kind personal regards.
Joseph F. Anderson, Jr.,
Chief United States District Judge.
Mr. HATCH. I believe this letter speaks volumes about Judge Shedd's
fairness and dispels the completely unfounded criticism that Judge
Shedd's
[[Page S11270]]
reversal rate or dismissal rate is somehow out of sync or cause for
concern.
I have been on the Senate Judiciary Committee for 26 years. Most of
my colleagues will say I have acted with fairness, honesty, and candor
during those 26 years. Most would say I have done so as chairman of the
committee when I have been chairman. I know Dennis Shedd. I know him
very well. I worked closely with him and Senator Thurmond, as did many
on the committee. I saw in Dennis Shedd a very scrupulously honest and
decent man. I never saw one iota of evidence that he was anything but
an honest and decent, honorable human being, with the respect for all
people, regardless of race, religion, or origin--or any other reason. I
can say this man served the committee well. He was chief of staff for
the committee when Senator Thurmond was chairman. He got along well
with everyone. He did his job, and did it well.
He has had experience in private practice. He has had experience in
this legislative body that I don't think many staffers could match. He
has had 12 years of experience on the Federal district court bench in
South Carolina where the chief judge himself says he has distinguished
himself.
I have bitterly resented some of the outside attacks which have come
to be the norm in the case of President Bush's nominees. If a person is
considered moderate to conservative or conservative, then automatically
these groups start to attack some of these people. It is not right. I
have had respect for a number of these groups in the past, but I have
lost respect for them in the last couple of years with some of the
arguments they have made and some of the cases they have tried to make
and some of the distortions they have foisted upon the Senate Judiciary
Committee. It is time to quit doing that. I would like to see the
outside groups argue their cases well, argue their ideology well, do
what they are organized to do, but do it honestly, do it fairly; do not
destroy a person's reputation, as I think many have attempted to do
here, and especially a person against whom you can find no real fault.
I know Dennis Shedd. He is an honorable, honest, competent,
intelligent, former chief of staff of this committee but now Federal
district judge in South Carolina. He deserves some respect in this
body, and he deserves the vote of this body. I hope my colleagues will
look past some of these unfortunate criticisms that are, in my opinion,
dishonest, that we have shown to be distortions, and vote for Dennis
Shedd tomorrow so that he can bring a greater element of ability to the
circuit court of appeals.
Mr. President, contrary to some of the arguments made here today, it
is clear to me that this debate is not so much about Judge Shedd, as it
is about the purposeful delaying and denying of President Bush's
judicial nominations.
The delay and speechmaking about Judge Shedd fits right into the
pattern we have been seeing for almost two years.
Under Democrat control, the Senate has undertaken a systematic effort
to treat President Bush and his judicial nominees unfairly. Some have
attempted to justify this unfair treatment as tit-for-tat, or business
as usual, but the American people should not accept such a smokescreen.
What the Senate is doing is unprecedented.
Historically, a president can count on seeing all of his first 11
Circuit Court nominees confirmed. As you can see on this chart,
Presidents Reagan, Bush and Clinton all enjoyed a 100 percent
confirmation rate on their first 11 Circuit Court nominees. In stark
contrast, 7 of President Bush's first 11 nominations are still pending
at the close of President Bush's first Congress.
History also shows that Presidents can expect almost all of their
first 100 nominees to be confirmed swiftly. Presidents Reagan, Bush and
Clinton got 97, 95 and 97, respectively, of their first 100 judicial
nominations confirmed. But the Senate has confirmed only 83 of
President Bush's first 100 nominees.
Some try to blame Republicans for the current vacancy crisis. That is
bunk. In fact, the number of judicial vacancies decreased by three
during the 6 years of Republican leadership. There were 70 vacancies
when I became chairman of the Judiciary Committee in January 1995, and
there were 67 at the close of the 106th Congress in December 2000.
Some try to justify wholesale delays as payback for the past. That is
also untrue. Look at the facts: During President Clinton's 8 years in
office, the Senate confirmed 377 judges--essentially the same (5 fewer)
as for Reagan (382). This is an unassailable record of non-partisan
fairness, especially when you consider that President Reagan had 6
years of a Senate controlled by his own party, while President Clinton
had only 2.
Finally, some might suggest that the Republicans left an undue number
of nominees pending in Committee without hearings at the end of the
Clinton administration. Well, we left 41, which is 13 less that the
Democrats left without hearings in 1992 at the end of the Bush
Administration.
So you see, Mr. President, what is happening to Judge Shedd fits into
a pattern of unfairness that is not justified by any prior Republican
actions.
President Bush deserves to be treated as well as the last three
Presidents.
nominations record of the 107th Congress
My Democrat colleagues are apparently proud that in this Session, so
far, the Senate has confirmed 99 judges. There is much eagerness in
their voices in asserting that this number compares favorably to the
last three sessions of Congress during which Republicans were in
control of the Senate.
Although it is flattering that the Republican record under my
leadership is being used as the benchmark for fairness, I am afraid
that this does not make for a correct comparison because Republicans
were never in control during President Clinton's first 2 years in
office.
Let me repeat that, we were never in control during President
Clinton's first 2 years in office. The proper comparison is not to the
Republican record of the last 6 years of President Clinton, but to his
first 2 years.
Despite the numbers that my colleague throws out in their comparison
of apples to oranges.
Now, Mr. President I brought a visual. Here you see apples and
oranges. It is fair to say that they are difficult to compare and that
a comparison only leads the listener to conclude that they are both
fruit. But they are not at all the same kind.
The fact remains that the Democrat achievement in this Session fails
noticeably when properly compared, apples to apples.
During President Clinton's first Congress, when Senator Biden was the
Chairman of the Judiciary Committee, the Senate confirmed 127 judicial
nominees. And Senator Biden achieved this record despite not receiving
any nominees for the first 6 months--in fact, Senator Biden's first
hearing was held on July 20th of that year, more than a week later than
the first hearing of this Session, which occurred on July 11, 2001.
Clearly, getting started in July of Year One is no barrier to the
confirmation of 127 judges by the end of Year Two. But we have
confirmed only 99 nominees in this Session.
Senator Biden's track record during the first President Bush's first
2 years also demonstrates how a Democrat-led Senate treated a
Republican president. Then-Chairman Biden presided over the
confirmation of all but 5 of the first President Bush's 75 nominees in
that first two-year session. Chairman Thurmond's record is similar. The
contrast to the present could hardly be starker.
We are about to close President Bush's first 2 years in office,
having failed the standards set by Chairman Biden and Chairman
Thurmond. That is nothing over which to be proud.
Mr. HOLLINGS. Mr. President, in South Carolina, Senator Thurmond and
I have a long tradition of working cooperatively to nominate judges.
Senator Thurmond has made good choices in the past, and he has done so
again, with Judge Dennis Shedd, for elevation to the Court of Appeals
for the Fourth Circuit.
Judge Shedd is familiar to many Members, having staffed the Judiciary
Committee for several years, and of course serving as chief counsel and
administrative assistant to Senator Thurmond himself.
He is a very smart and capable man. For more than a decade, he has
been a
[[Page S11271]]
judge on the United States District Court for South Carolina, based in
Columbia. He has a reputation as a hard worker on the bench, as a
straight-shooter, and one who is up-to-date on the laws. By special
designation, he has sat on the Fourth Court on several occasions.
No judge now sitting on the Fourth Circuit has as much Federal trial
experience. On the bench, he has handled 5,000 cases, and he has been
reversed less than one percent in that entire time, an outstanding
record of sound judgment.
I can say he has the support of a wide array of lawyers in South
Carolina, and has received a well qualified rating by the American Bar
Association.
I have a letter from Joseph Anderson, chief United States District
Judge, who writes:
``I can say without hesitation that Judge Shedd has a
reputation for fairness, both in his community and on our
court. As Chief Judge, I have received no complaints about
his courtroom demeanor, his decisions, or his procedures. It
is my considered opinion that all people who appear in his
court receive a fair hearing, regardless of the type of cases
involved, or the status of the parties in the case.
And here is a letter from nine faculty members of the University of
South Carolina School of Law, from which Judge Shedd graduated. After
analyzing several of his cases they conclude: ``Judge Shedd's record on
the Federal bench demonstrates that he is fair and impartial in all
matters that come before him, including to plaintiffs in employment
discrimination and civil rights cases. . . . In our view he will make
an excellent addition to the Fourth Circuit.''
Let me acknowledge that the NAACP, and some others, have concerns
with him. But I have looked into those situations, and I find them
wanting with respect to specific inappropriate actions by Judge Shedd.
We in the law know that you never have a character witness come up
and tell what he knows of his own association, but rather you bring
witnesses who give testimony to his reputation in the particular
community.
In that regard, having checked it out, Judge Shedd is my kind of
judge. He is hard, he is tough, but he is hard and he is tough on both
sides.
We who have practiced law before the courts, and know the score, and
don't play games appreciate a judge who is not going to allow any games
to be played on you.
I have said often that as much as we need a balanced budget, we need
some balanced Senators, and some balanced judges.
I hope we can garner bipartisan support, and to see that this Judge
is confirmed.
I ask unanimous consent to print the letters in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. District Court,
District of South Carolina,
Columbia, SC, November 18, 2002.
In re Dennis W. Shedd, Nominee To Fourth Circuit Court of
Appeals.
Senator Orrin Hatch,
Ranking Republican Member, Judiciary Committee, U.S. Senate,
Washington, DC.
Dear Senator Hatch: This in response to your request that I
provide information regarding Dennis W. Shedd, a judge on our
court, who has been nominated for a position on the United
States Court of Appeals for the Fourth Circuit. I have served
as a United States District Judge for 16 years, the last two
as Chief Judge for our district. I knew Judge Shedd prior to
his appointment as U.S. District Judge, and, subsequent to
his appointment, he and I have served as suite mates in the
courthouse here in Columbia. I, therefore, feel that I am
qualified to comment on his abilities, qualifications, and
reputation.
In response to your specific inquires [I can say without
hesitation that Judge Shedd has a reputation for fairness,
both in his community and on our court. As Chief Judge, I
have received no complaints about his courtroom demeanor, his
decisions, or his procedures. It is my considered opinion
that all people who appear in his court receive a fair
hearing, regardless of the type of cases involved, or the
status of the parties in the case (plaintiff or defendant).]
Judge Shedd is scrupulous in his dealings on the court. If
there is any remote suggestion of the appearance of
impropriety, he will not hesitate, and has not hesitated, to
recuse himself and he is very consistent about this.
I regularly review the advance sheets of the United States
Court of Appeal for the Fourth Circuit, and it would appear
to me that Judge Shedd has an extremely good affirmance rate
in that court.
In regard to the issue of granting summary judgment or
otherwise dismissing cases short of trial it appears to me
that Judge Shedd's record is not different from any other
judge in this district. That is to say, some of his cases are
ended by a ruling on summary judgment. Those that are not are
then set for trial and a great number of those eventually
settle before the trial can be conducted. In regard to
summary judgment decisions, settlements, and actual trials,
Judge Shedd's statistics are not significantly different from
any other judge in this district.
I hope this letter is responsive to your inquiry and if you
need any additional information, please do not hesitate to
let me know.
With kind personal regards,
Joseph F. Anderson, Jr.,
Chief United States District Judge.
____
June 26,2002.
Hon. John R. Edwards,
U.S. Senate,
Washington, DC.
Dear Senator Edwards: We write to you as individual members
of the faculty at the University of South Carolina School of
Law. We are concerned that professors from law schools in
your state recently may have provided you with inaccurate
information regarding United States District Court Judge
Dennis Shedd, whose nomination to the Fourth Circuit Court of
Appeals is scheduled for a hearing in the Senate Judiciary
Committee this week. As members of the academic legal
community in South Carolina, we wish to set the record
straight on Judge Shedd's record on the bench, and to urge
your approval of this well-qualified nominee.
Contrary to claims made by his opponents, Judge Shedd's
record in cases involving state sovereignty and the scope of
congressional authority reflects that he has taken a fair and
balanced approach to these issues and is well within the
accepted mainstream among federal judges. On the difficult
issue of whether Congress had authority under the Commerce
Clause to enact the Driver's Privacy Protection Act (DPPA),
Judge Shedd concluded, after careful analysis of existing
case law, the DPPA violated the Tenth Amendment in that it
commanded states to implement federal policy in violation of
Supreme Court precedent, New York v. United States, 515 U.S.
144 (1992), and Printz v. United States, 521 U.S. 898 (1997).
See Condon v. Reno, 972 F.Supp. 977 (D.S.C. 1997).
While the Supreme Court ultimately ruled that DPPA
represented a valid exercise of Congress' Commerce Clause
power, 7 of the other 15 lower court judges to consider the
issue prior to the Court's decision agreed with Judge Shedd.
Among those were Judge Barbara Crabb, the Chief Judge of the
Western District of Wisconsin and an appointee of President
Jimmy Carter, and John Godbold of the 11th Circuit, a Johnson
appointee. In addition, several governors, including Governor
Jim Hunt of North Carolina, authorized their attorneys
general to file amicus briefs in Condon urging the Supreme
Court to uphold Judge Shedd's ruling and to declare the law
unconstitutional. To us, the disagreement among lawyers,
judges and scholars regarding whether DPPA was constitutional
in the wake of the Supreme Court's decisions in Printz and
other opinions reflects the difficult question presented
in this case. Judge Shedd's opinion represents a reasoned
(albeit later overruled) approach to that question.
On the issue of state immunity under the Eleventh
Amendment, opponents have cited Judge Shedd's opinion in the
case of Crosby v. South Carolina Dep't of Heath, C.A. No.
3:97-3588-19BD, as an example of his ``highly protective
views'' of state sovereignty. In Crosby, Judge Shedd in an
unpublished opinion found that the 11th Amendment protected
states from lawsuits in federal court under the Family and
Medical Leave Act (FMLA). Contrary to the claims of his
critics, Judge Shedd's opinion in Crosby is well within the
mainstream of recent Eleventh Amendment jurisprudence. In
fact, eight of the nine Circuit Courts of Appeals to decide
the issue of whether the FMLA applied to state agencies have
agreed with Judge Shedd's ruling in Crosby. See Laro v. New
Hampshire, 259 F.3d 1 (1st Cir 2001); Hale v. Mann, 219 F.3d
61 (2nd Cir 2000); Chittister v. Dept. Community and Econ.
Dev., 226 F.3d 223 (3rd Cir 2000); Lizz v. WMATA, 255 F.3d
128 (4th Cir 2001); Kazmier v. Widmann, 225 F.3d 519 (5th Cir
2000); Sims v. Cincinnati, 219 F.3d 559 (6th Cir 2000);
Townsell v. Missouri, 233 F.3d 1094 (8th Cir 2000); Garrett
v. UAB Board of Trustees, 193 F.3d 1214 (11th Cir 1999). In
fact, the Fourth Circuit opinion on this issue was joined by
recent Bush appointee Roger Gregory, who was unanimously
approved by the Judiciary Committee and unanimously confirmed
by the full Senate. See Lizzi v. WMATA, 255 F.3d 128 (4th Cir
2001).
Those less familiar with Judge Shedd's record also may not
be aware of his opinion in another case involving the scope
of Congress' authority under the Commerce Clause. In United
States v. Floyd Brown, Crim. No. 94-168-19, Judge Shedd in
an unpublished opinion rejected a criminal defendant's
constitutional challenge to the Gun Free School Zones Act,
finding that the prosecution could prove facts at trial that
would support some basis for federal jurisdiction under the
statute. Consequently, Judge Shedd found that the Act
represented a valid exercise of congressional authority under
the Commerce Clause. The Supreme Court later disagreed with
Judge Shedd and struck down the Act
[[Page S11272]]
in a controversial 5-4 decision. See United States v. Lopez,
514 U.S. 549 (1995). Nonetheless, Judge Shedd's opinion in
Brown demonstrates that he is far from the ``sympathetic
participant in the campaign to disempower Congress'' that his
detractors have alleged.
Even more disturbing than their criticism of Judge Shedd's
record on federalism issues is the North Carolina law
professors' distortion of his record in civil rights and
employment discrimination cases. While we will not address
each and every mischaracterization contained in their recent
letter to you, suffice it to say that those professors
clearly have not provided you with the full picture of Judge
Shedd's record.
For example, the assertion that Judge Shedd has never
granted relief in an employment discrimination case and that
he inappropriately uses Rule 56 summary judgment in these
cases in misleading and inaccurate. As you must know from
your career as a litigator, when a case proceeds beyond the
summary judgment stage, the likelihood of settlement in that
case increases exponentially. Moreover, an extremely high
percentage of employment discrimination cases around the
country are disposed of by summary judgment either because
the courts consider the claims not to be meritorious or
because the plaintiff failed to meet the minimal requirements
set by statute and judicial precedent. We understand that
Judge Shedd has repeatedly denied summary judgment to
defendants in employment discrimination and civil rights
cases. In addition, we are aware of only two instances in
which the Fourth Circuit has overturned Judge Shedd in
employment discrimination cases during his almost twelve-year
career on the bench.
For your information, we wanted you to be aware of a few of
the cases (among many) where Judge Shedd allowed plaintiffs
to proceed past the summary judgment stage in civil rights
and employment cases:
In Miles v. Blue Cross & Blue Shield, C.A. No. 3:94-2108-
19BD, Judge Shedd denied defendant Blue Cross & Blue Shield's
motion for summary judgment in a case brought under Title VII
of the Civil Rights Act, where an African-American employee
alleged that she was fired because of her race. The case
included allegations that the plaintiff's supervisor used
racially disparaging remarks on several occasions. The
supervisor also allegedly stated that he did not want an
African-American to hold the position held by the plaintiff.
In Davis v. South Carolina Department of Health, C.A. No.
3:96-1698-19BD, Judge Shedd refused to dismiss a Title VII
lawsuit by an African-American employee who claimed that she
was denied a promotion because of her race. The case involved
allegations that the company promoted an unqualified white
employee, and that a supervisor who participated in the
decision not to promote the plaintiff had made racially
disparaging remarks to her.
In Ruff v. Whiting Metals, C.A. No. 3:98-2627-19BD, Judge
Shedd refused to dismiss a Title VII race discrimination case
brought by an African-American welder after he was laid off.
The case involved allegations that supervisors repeatedly
made racial statements in the workplace, and that one
supervisor claimed that he was going to use the pending
layoffs to ``get rid of some'' African-American employees.
In Black v. Twin Lakes Mobile Homes, C.A. No. 0:97-3971-19,
Judge Shedd denied summary judgment for the defendant, an
owner of a mobile home park who sought to evict an HIV-
positive tenant because of his medical condition. Shedd's
ruling allowed the plaintiff's lawsuit alleging
discrimination under the Fair Housing Act to go forward.
In addition to the above cases, Judge Shedd also has
presided over three cases where the NAACP has alleged
violations of the Voting Rights Act in which the NAACP
prevailed. NAACP v. Lee County, C.A. No. 3:94-1575-17; NAACP
v. Holly Hill, C.A. No. 5:91-3034-19; NAACP v. Town of
Elloree, C.A. No. 5:91-3106-06. Far from displaying a
hostility to civil rights and employment discrimination
cases, Judge Shedd's record demonstrates that he is a judge
who keeps an open mind, applies the law to the facts, and
treats all parties fairly.
In sum, as members of the academic legal community in South
Carolina [we can unequivocally state that Judge Shedd's
record on the federal bench demonstrates that he is fair and
impartial in all matters that come before him, including to
plaintiffs in employment discrimination and civil rights
cases. In addition, his career on the bench and as a staff
member of the United States Senate shows that he has a clear
understanding of and appropriate deference to Congress'
legislative powers. In our view, he will make an excellent
addition to the Fourth Circuit, and we urge you to support
his nomination.
Sincerely,
F. Ladson Boyle; David G. Owen; S. Allen Medlin; Howard
B. Stravitz; William J. Quirk; Randall Bridwell; Ralph
C. McCullough II; Dennis R. Nolan; Robert M. Wilcox.
Mr. COCHRAN. Mr. President, I support the confirmation of Judge
Dennis W. Shedd of South Carolina as U.S. Circuit Judge for the Fourth
Circuit.
Judge Shedd has served more than 10 years as a United States District
Judge for the District of South Carolina where he has earned a
reputation for sound judgement and fairness. Prior to his appointment
to the Federal bench, Judge Shedd spent nearly 20 years in the practice
of law and public service, including ten years as a staff member of
U.S. Senator Strom Thurmond. During his tenure in the Senate, Judge
Shedd served as Counsel to the President Pro Tempore as well as Chief
Counsel and Staff Director of the Senate Judiciary Committee.
While serving on the Federal bench, Judge Shedd has been a member of
the Judicial Conference Committee on the Judicial Branch and its
subcommittee on Judicial Independence. He has also participated in
community activities where he has helped organize and promote drug
education programs in the Columbia, SC public schools.
Judge Shedd has handled more than 4,000 civil cases and over 900
criminal matters. No judge currently sitting on the Fourth Circuit has
as much Federal trial experience. In the thousands of cases Judge Shedd
has handled, he has been reversed fewer than 40 times--less than one
percent. In addition, a majority of the ABA's Standing Committee on the
Judiciary rated Judge Shedd ``Well Qualified.''
I believe Judge Shedd has demonstrated the character, wisdom, and
judicial temperament needed to be an outstanding judge on the Federal
appellant bench. I encourage my colleagues to support his nomination.
Mr. THURMOND. Mr. President I am greatly pleased that the full Senate
is considering the nomination of Judge Dennis Shedd to the United
States Court of Appeals for the Fourth Circuit. Judge Shedd is a man of
impeccable character who will make an outstanding addition to the
Federal appellate bench. He possesses the highest sense of integrity, a
thorough knowledge of the law, and a good judicial temperament. These
qualifications have earned Judge Shedd widespread respect and
bipartisan support in my home State of South Carolina. In addition to
Republican support, Senator Ernest Hollings and State Democratic Party
chairman Dick Harpootlian have endorsed his nomination.
I am exceedingly proud of Dennis Shedd. He was a loyal employee of
mine for 10 years and is very deserving of this high honor. Judge Shedd
has been successful at every stage of his professional life and has
dedicated most of his career to public service. Upon graduation from
the University of South Carolina School of Law, he joined my staff and
eventually served as administrative assistant. Thereafter, during my
tenures as chairman and ranking member of the Judiciary Committee, he
served as the committee's chief counsel and staff director. As a staff
member, he gained a well-deserved reputation for honesty and hard work.
Upon returning to South Carolina, Judge Shedd entered the private
practice of law and also served as an adjunct law professor at the
University of South Carolina. In 1990, President Bush nominated Dennis
Shedd to the United States District Court for the District of South
Carolina, and he has served ably for more than a decade. On numerous
occasions, Judge Shedd has been given the honor of sitting on the
Fourth Circuit by designation.
Judge Shedd's performance on the district court has been marked by
distinction. He has been assigned more than 5,000 cases during almost
12 years on the bench. Out of all these cases, he has only been
reversed 37 times, resulting in a reversal rate of less than 1 percent.
These numbers indicate both the skilled legal mind and the thorough
preparation that he will bring to the Fourth Circuit. Judge Shedd also
possesses a good judicial temperament, treating all litigants in his
courtroom with dignity and respect.
Unfortunately, some groups have portrayed Judge Shedd's judicial
career in a negative light. I would like to take a moment to address
these allegations and concerns. An examination of Judge Shedd's record
indicates that he is not only fair and impartial, but personally
dedicated to upholding the constitutional rights of all people.
Judge Shedd has been criticized for his handling of Alley v. South
Carolina, a lawsuit wherein the plaintiffs sought to remove the
Confederate flag from atop the statehouse dome in Columbia, SC. The
South Carolina NAACP has asserted that Judge Shedd ``made several
derogatory comments about those opposing the flag, and
[[Page S11273]]
minimized the deep racial symbolism of the Confederate flag by
comparing it to the Palmetto tree, which appears in South Carolina's
state flag.''
These allegations are misleading and inaccurate. A close look at the
transcript of the hearing reveals that Judge Shedd made a point of
saying that his comments were not meant to be disparaging. In fact, he
said, ``I'm not going to denigrate the constitutional claim abut the
Confederate flag.'' Furthermore, Judge Shedd never ruled on the merits
of the case. Rather, he abstained to allow a claim to go forward in
State court, arguably the forum better equipped to handle the issue.
Additionally, it is important to note that Judge Shedd's comments
about the Palmetto tree were made during his examination of the
lawyer's legal argument in the case. The argument hinged on the
offensive nature of the Confederate flag, and Judge Shedd pointed out
that many symbols could be perceived as offensive, such as the Palmetto
tree on the State flag. Judge Shedd then stated, ``I'm not determining
now on whether or not the flag should be there at all. I'm just doing
what--you lawyers have been with me before know, I'm exploring your
legal theory.'' In this case, Judge Shedd was simply engaging in the
Socratic method with the lawyers, and his words should not be twisted
to insinuate any personal feelings about the propriety of flying the
Confederate flag over the statehouse dome.
I would like to point out the case of Vanderhoff v. John Deere, the
one case involving the Confederate flag in which Judge Shedd did rule.
In that case, an employee was fired because he refused to comply with
company policy and remove the Confederate flag from his toolbox. The
employee sued under title VII, a statute designed to prohibit workplace
discrimination based on race, sex, religion, and national origin. He
argued that his national origin was a ``Confederate Southern American''
and that he had been the subject of discrimination. Judge Shedd
rejected this argument and dismissed the plaintiff's claim. Thus, on
the one Confederate flag case where he ruled on the merits, Judge
Shedd's decision went against a flag proponent.
In recent weeks, Judge Shedd has been the subject of vicious attacks
based on his handling of employment discrimination cases. Over and over
again, we have head the accusation that Judge Shedd shows a bias
towards defendants. A review of Judge Shedd's record indicates that he
has been fair to the civil rights claims of plaintiffs in his
courtroom. In fact, Judge Shedd has only been reversed two times in
employment discrimination cases. With such a low reversal rate, I am
disappointed that some groups have insisted on attacking this fine
judge.
One commonly cited case is Roberts v. Defender Services, in which
Judge Shedd dismissed a plaintiff's sexual harassment claim. In this
case, Judge Shedd merely followed the law as established by the Supreme
Court, which held in Faragher v. City of Boca Raton, 524 U.S. 775
(1998), that the work environment must be both objectively and
subjectively offensive. While the plaintiff had clearly shown that the
work environment was objectively offensive, Judge Shedd determined that
she had not made a showing that she perceived it to be offensive. He
based his determination on the fact that she had recommended the
position to someone else and stated that the employer was ``a nice
person'' who was ``pretty good to work for.'' These comments by the
plaintiff demonstrate that Judge Shedd's decision was reasonable under
the circumstances of this case.
The truth is that Judge Shedd has issued rulings that have benefitted
plaintiffs on numerous occasions. For example, in Miles v. Blue Cross &
Blue Shield, C.A. No. 3:94-2108-19BD, an action was brought under title
VII of the Civil Rights Act by an African-American employee who alleged
that she was fired because of her race. There was ample evidence that
the plaintiff had been subjected to racial slurs before being fired.
Judge Shedd appropriately denied the defendant employer's motion for
summary judgment.
In another case, Davis v. South Carolina Department of Health and
Environmental Control, C.A. No. 3:96-1698-19BD, an action was brought
under title VII by an African-American employee who alleged that she
was denied a promotion because of her race. There was evidence that an
unqualified white employee had been promoted and that racially
disparaging remarks had been made. Judge Shedd followed the law and
denied the defendant employer's motion for summary judgment. Again in
Ruff v. Whiting Metals, C.A. No. 3:98-2627-19BD and Williams v. South
Carolina Department of Public Safety, C.A. No. 3:99-976-19BC, Judge
Shedd denied a defendant's motion for summary judgment on race
discrimination claims.
In the case of Treacy v. Loftis, C.A. No. 3:92-3001-19BD, Judge
Shedd, overruling a magistrate judge's recommendation, declined to
grant summary judgment on a fired employee's claim of intentional
infliction of emotional distress. In that case, the plaintiff claimed
that her job was terminated due to her involvement in an interracial
relationship. Judge Shedd, in refusing to grant summary judgment,
allowed the case to go forward.
There are many other cases like these. Judge Shedd's record reveals
that he has upheld important rights protected by the Constitution. If
elevated to the Fourth Circuit, Judge Shedd will continue to protect
civil liberties.
In addition to Judge Shedd's proven record of protecting civil
rights, he has personally dedicated himself to providing equal
opportunities for women and minorities. As an example, Judge Shedd
served as chairman of the South Carolina Advisory Committee to the U.S.
Commission on Civil Rights. He also played an instrumental role in the
selection of Margaret Seymour as the first female African-American U.S.
magistrate judge in the district of South Carolina. When Judge Seymour
was nominated by President Clinton to the district court, Judge Shedd
fully supported her nomination. Furthermore, Judge Shedd has hired both
African-American and female law clerks.
I would like to turn to another accusation that has been leveled
against Judge Shedd. He has been accused of espousing an unreasonably
narrow interpretation of congressional power based on his decision in
Condon v. Reno, 972 F.Supp. 977 (1997), in which he struck down the
Driver's Privacy Protection Act. The act regulated the dissemination of
State motor vehicle record information, and the State of South Carolina
challenged its constitutionality. Judge Shedd ruled that under Supreme
Court precedent, the act violated the 10th amendment by impermissibly
commandeering State governments, forcing them to regulate in a specific
fashion. The Fourth Circuit upheld this decision, Condon v. Reno, 155
F.3d 453 (4th Cir. 1998), but the Supreme Court ultimately reversed.
Reno v. Condon, 120 S.Ct. 666 (2000).
I stress that this case was one of first impression. Given the U.S.
Supreme Court opinions in New York v. United States, 505 U.S. 144
(1992), and Printz v. United States, 521 U.S. 898 (1997), Judge Shedd's
ruling was entirely reasonable. In a very persuasive opinion, he
compared the Drivers Privacy Protection Act with those acts invalidated
in New York and Printz and found it to have similar constitutional
defects.
Judge Shedd was not alone in his analysis. At least one liberal
commentator, Erwin Chemerinsky, concluded that the Supreme Court's
distinction of the Drivers Privacy Protection Act from the statutes
struck down in New York and Printz was unconvincing. While Chemerinsky
agreed with the final outcome of the case, he has argued that the
Supreme Court should have overruled both New York and Printz in order
to reach its decision in Reno. Professor Chemerinsky's argument lends
support to the proposition that Judge Shedd, in striking down the
statute, was correct in his interpretation of the law at that time.
In addition, of the 16 lower Federal court judges who considered the
constitutionality of DPPA, 8 determined that the statute was
unconstitutional. In short, there is nothing to indicate that Judge
Shedd's decision in this case was out of the mainstream.
Another case that has been cited is Crosby v. U.S., in which Judge
Shedd held that the plaintiff's claim under the Family and Medical
Leave Act was barred by the 11th amendment to the Constitution. Judge
Shedd's detractors have argued that this case is another example of his
narrow view of congressional power. However, this accusation
[[Page S11274]]
is unfair and unwarranted. In this case, Judge Shedd sought to follow
the law as established by the Supreme Court. He was not attempting to
make new law, but was instead seeking to apply the law correctly.
Furthermore, Judge Shedd was not alone in his decision. Out of nine
circuit courts that have considered this same question, eight have
agreed with Judge Shedd. It is worth noting that Judge Roger Gregory,
originally appointed by President Clinton, joined the Fourth Circuit's
opinion that agreed with Judge Shedd's ruling.
Judge Shedd has also been criticized as being antiplaintiff for
disposing of matters sua sponte, or on his own motion. This charge is
without merit for a number of reasons. First, Federal judges face
enormous caseloads. If an area of the law is clear, it is completely
proper for the judge to act on his own motion, helping to move
litigation along and clear the dockets. Second, the law clearly allows
for district court judges to consider matters without prompting from
lawyers. The Supreme Court has acknowledged this, stating in Celotex
Corp. v. Catrett, 830 F.2d 1308 477 U.S. 317, 326 (1986), that district
courts may grant summary judgment sua sponte to a party that has not
moved for summary judgment. As long as a judge is acting properly,
which Judge Shedd has always done, sua sponte decisions are entirely
appropriate.
I have known Judge Dennis Shedd for over 24 years and can personally
vouch for his integrity and high moral character. He is truly a man of
knowledge, ability, and superior ethical standards. Judge Shedd will
bring a wealth of trial experience to the Fourth Circuit, having
handled more than 4,000 civil cases and over 900 criminal matters. In
addition, he possesses unmatched legislative experience. It is no
surprise that the American Bar Association gave Judge Shedd a rating of
``Well Qualified.'' I am proud to support my friend, Dennis Shedd, and
I hope to see him confirmed to the United States Court of Appeals for
the Fourth Circuit. I ask unanimous consent that the attached materials
be printed in the Record.
Dennis W. Shedd--Nominee to the Fourth Circuit Court of Appeals
Background. Appointed by President George H.W. Bush to the
United States District Court for South Carolina in 1990,
Dennis W. Shedd has served as a federal jurist for more than
a decade.
In addition to his service on the District Court, he sat by
designation on the Fourth Circuit Court of Appeals on several
occasions. Shedd also has served on the Judicial Conference
Committee of the Judicial Branch and its Subcommittee on
Judicial Independence.
From 1978 through 1988, Judge Shedd served in a number of
different capacities in the United States Senate, including
Counsel to the President Pro Tempore and Chief Counsel and
Staff Director for the Senate Judiciary Committee.
Judge Shedd is well-respected by members of the bench and
bar in South Carolina. According to South Carolina
plaintiffs' attorney Joseph Rice, ``Shedd--who came to the
bench with limited trial experience--has a good understanding
of day-to-day problems that affect lawyers in his courtroom.
. . . He's been a straight shooter.'' Legal Times, May 14,
2001.
According to the Almanac of the Federal Judiciary,
attorneys said that Shedd has outstanding legal skills and an
excellent judicial temperament. A few comments from South
Carolina lawyers; ``You are not going to find a better judge
on the bench or one that works harder.'' ``He's the best
federal judge we've got.'' He gets an A all around.'' It's a
great experience trying cases before him.'' ``He's polite and
businesslike.''
Plaintiff lawyers commended Shedd for being even-handed;
``He has always been fair.'' ``I have no complaints about
him. He's nothing if not fair.'' Almanac of the Federal
Judiciary, Vol. 1, 1999.
Judge Shedd would bring unmatched experience to the Fourth
Circuit. He has handled more than 4,000 civil cases since
taking the bench and over 900 criminal matters. In fact, no
judge currently sitting on the Fourth Circuit has as much
federal trial experience as Judge Shedd, and none can match
his ten years of experience in the legislative branch.
Shedd's record demonstrates that he is a mainstream judge
with a low reversal rate. In the more than 5,000 cases Judge
Shedd has handled during his twelve years on the bench, he
has been reversed fewer than 40 times less than one percent).
Since taking his seat on the Fourth Circuit in 2001, Judge
Roger Gregory (a Democrat appointed by President Bush) has
written opinions affirming several of Judge Shedd's rulings.
Judge Gregory also agreed with Judge Shedd's holding in
Crosby v. South Carolina Dep't of Health (case cited by Judge
Shedd's opponents) that Congress did not effectively abrogate
State sovereign immunity in the Family and Medical Leave Act.
See Lizzi v. WMATA, 255 F.3d 128 94th Cir. 2001.
Judge Shedd has been completely forthcoming with the Senate
Judiciary Committee's requests for information. Earlier this
year, Judge Shedd sent nearly one thousand unpublished
opinions to the Committee for review immediately after
Chairman Leahy requested them. Judge Shedd has continued to
provide additional unpublished opinions, as well as all other
information the Committee has requested regarding his
rulings, opinions and judicial record generally.
Judge Shedd has bi-partisan support from his home state
Senators; Senators Thurmond and Hollings support his
nomination.
A majority of the ABA's Standing Committee on the Judiciary
rated Judge Shedd ``Well Qualified.'' Democrats have called
the ABA rating the ``gold standard'' for judicial nominees.
Rosenberg Proutt Funk &
Greenberg, LLP,
Baltimore, MD, June 25, 2002.
Senator Patrick Leahy,
Chairman, U.S. Senate Judiciary Committee, the Dirksen
Building, Washington, DC.
Dear Senator Leahy: My name is Thomas W. Jones, Jr. I am an
African-American attorney currently practicing as a
litigation associate in Baltimore, Maryland.
Upon my graduation from the University of Maryland School
of Law, I had the distinct pleasure of serving as a judicial
clerk for the Honorable Dennis W. Shedd (``Judge Shedd'') on
the U.S. District Court for the District of South Carolina.
During my eighteen months of working with Judge Shedd, I
never encountered a hint of bias, in any form or fashion,
regarding any aspect of judge Shedd's jurisprudence or daily
activities.
It is apparent to me that the allegations regarding Judge
Shedd's alleged biases have been propagated by individuals
without the benefit of any real, meaningful interaction with
Judge Shedd, his friends or family members. I trust the
accusations of bias levied against Judge Shedd will be given
the short shrift they are due, and trust further that this
honorable Committee will act favorably upon the pending
nomination of Judge Shedd for the United States Court of
Appeals for the Fourth Circuit.
Thank you for your attention regarding this matter.
Respectfully,
Thomas W. Jones, Jr.
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC, September 13, 2002.
James Gallman,
President, SCNAACP,
Columbia, SC.
Dear President Gallman: Thank you very much for your
interest in the nomination of Judge Dennis Shedd to the
United States Court of Appeals for the Fourth Circuit. I want
to assure you that Judge Shedd is an outstanding Federal
Judge, and he is committed to upholding the rights of all
people under the Constitution. Rather than being hostile to
civil rights, as his detractors have claimed, Judge Shedd is
committed to the ideals of equal justice under the law. I am
confident that upon an examination of his record, you will
find that Dennis Shedd is eminently qualified, applies the
law fairly, and exhibits an appropriate judicial temperament.
I would like to address your concerns regarding Judge
Shedd's civil rights record. I believe that it is commendable
in all respects. First of all, Judge Shedd has been accused
of granting summary judgment for defendants in almost every
case. This accusation is false. A review of Judge Shedd's
record indicates that he has been fair to the civil rights
claims of plaintiffs in his courtroom. In fact, he has issued
rulings that have benefitted plaintiffs on numerous
occasions. For example, in Miles v. Blue Cross & Blue Shield,
C.A. No. 3:94-2108-19BD, an action was brought under Title
VII of the Civil Rights Act by an African-American employee
who alleged that she was fired because of her race. There was
ample evidence that the plaintiff had been subjected to
racial slurs before being fired. Judge Shedd appropriately
denied the defendant employer's motion for summary judgment.
In another case, Davis v. South Carolina Department of
Health and Environmental Control, C.A. No. 3:96-1698-19BD, an
action was brought under Title VII by an African-American
employee who alleged that she was denied a promotion because
of her race. There was evidence that an unqualified white
employee had been promoted and that racially disparaging
remarks had been made. Judge Shedd followed the law and
denied the defendant employer's motion for summary judgment.
Again in Ruff v. Whiting Metals, C.A. No. 3:98-2627-19BD and
Williams v. South Carolina Department of Public Safety, C.A.
No. 3:99-976-19BC, Judge Shedd denied a defendant's motion
for summary judgment on race discrimination claims.
In the case of Treacy v. Loftis, C.A. No. 3:92-3001-19BD,
Judge Shedd, overruling a magistrate judge's recommendation,
declined to grant summary judgment on a fired employee's
claim of intentional infliction of emotional distress. In
that case, the plaintiff claimed that her job was terminated
due to her involvement in an interracial relationship. Judge
Shedd, in refusing to grant summary judgment, allowed the
case to go forward.
Judge Shedd has also been accused of making insensitive
remarks about the Confederate flag during proceedings in the
case of
[[Page S11275]]
Alley v. South Carolina, C.A. No. 3:94-1196-19. a lawsuit in
which the plaintiffs sought to remove the Confederate flag
from atop the Statehouse dome. These allegations are
misleading and inaccurate. A close look at the transcript
reveals that Judge Shedd made a point of saying that his
comments were not meant to be disparaging. In fact, he said,
``I'm not going to denigrate the constitutional claim about
the Confederate flag.'' Judge Shedd went on to say, ``I'm not
determining now on whether or not the flag should be there at
all. I'm just doing what-you lawyers have been with me before
know, I'm exploring your legal theory.''. The transcript
clearly indicates that Judge Shedd was questioning the
lawyers about their arguments in this case, something that is
done every day in courtrooms across the nation. Furthermore,
Judge Shedd never ruled on the merits of the case. Rather, he
abstained to allow a claim to go forward in state court,
arguably the forum better equipped to handle the issue.
I would like to point out the case of Vanderhoff v. John
Deere, C.A. No 01-0406-19BD, the one case involving the
Confederate flag in which Judge Shedd did rule. In that case,
an employee was fired because he refused to comply with
company policy and remove the Confederate flag from his
toolbox. The employee sued under Title VII, a statute
designed to prohibit workplace discrimation based on race,
sex, religion, and national origin. He argued that his
national origin was a ``Confederate Southern American'' and
that he had been the subject of discrimination. Judge Shedd
rejected this argument and dismissed the plaintiff's claim.
Thus, in the one Confederate flag case where he ruled on the
merits, Judge Shedd's decision went against a flag proponent.
In addition to Judge Shedd's demonstrated fairness in the
civil rights arena, he has shown that he is personally
committed to ensuring equal opportunities for women and
minorities. He was instrumental in the selection of Judge
Margaret Seymour, now a Federal District Court Judge, as the
first African-American female magistrate judge in the
District of South Carolina. He has also made an effort to
hire African-American and female law clerks. In fact, Thomas
Jones, an African-American man who clerked for Judge Shedd,
wrote a letter to Senator Leahy in which he said that the
allegations made against Judge Shedd should ``be given the
short shrift they are due . . . .''
Next, I would like to address the concerns raised by the
case of Condon v. Reno, 972 F. Supp. 977 (D.S.C. 1997), in
which Judge Shedd held that the Driver's Privacy Protection
Act (DPPA) was unconstitutional. He was eventually reversed
by the Supreme Court. Reno v. Condon, 528 U.S. 141 (2000). It
is important to stress that this case was one of first
impression. Given the United States Supreme Court opinions in
New York v. United States, 505 U.S. 144 (1992), and Printz v.
United States, 521 U.S. 898 (1997), Judge Shedd's ruling was
entirely reasonable. In a very persuasive opinion, he
compared DPPA with those Acts invalidated in New York and
Printz and found it to have similar constitutional defects.
While the Supreme Court ultimately disagreed with Judge
Shedd, his opinion was not outside of the mainstream. Of the
16 lower Federal court judges who considered the
constitutionality of DPPA, 8 determined the statute
unconstitutional. Some of these judges, such as Judge Barbara
Crabb and Judge John Godbold, were nominated by Democratic
presidents.
In summary, I believe that Judge Shedd is a highly
qualified candidate who will make an excellent addition to
the United States Court of Appeals for the Fourth Circuit. It
is a shame that he has been characterized as a judge with an
agenda to curtail civil rights. On the contrary, Judge Shedd
has demonstrated that he will apply the law fairly to all
people. In addition, he has received a rating of ``Well
Qualified'' by the American Bar Association, and he has the
support of South Carolina Democrats, such as Senator Fritz
Hollings and state Democratic Party Chairman Dick
Harpootlian.
I hope that this information is helpful during your further
consideration of Judge Shedd, and I hope that you will join
me in support of this fine man. I have known Judge Shedd for
a long time, and he is in all respects an honorable public
servant. Again, thank you for your interest.
With kindest regards and best wishes,
Sincerely,
Strom Thurmond.
____
U.S. Senate
Committee on the Judiciary,
Washington, DC, July 30, 2002.
Letters to the Editor,
The New York Times,
New York, NY.
Dear Editor: This letter is in response to the editorial
that appeared in your paper on July 28, 2002, entitled ``The
Secret History of Judges.'' The piece questioned whether
Judge Dennis Shedd, whom President Bush nominated to the U.S.
Court of Appeals for the Fourth Circuit, has adequately
supplied the Senate Judiciary Committee with all relevant
information regarding his 11 years as a Federal District
Court Judge. I can assure you that Judge Shedd has been
thoroughly responsive to Committee requests and has provided
an extraordinary amount of material. In fact, to the best of
my knowledge, there is simply nothing left for him to hand
over. This tired call for more information is nothing more
than a delay tactic being utilized by political groups that
oppose most of President Bush's judicial nominees, even when
the nominees are, like Judge Shedd, extremely well-qualified.
All interested parties have had ample time to examine Judge
Shedd's record. On June 27, 2002, Judge Shedd testified
before the Committee for more than two hours, during which
time he answered all questions asked of him. After the
hearing, individual Senators had the opportunity to submit
questions, and Judge Shedd prepared written responses to
questions from six Senators.
Previously, on March 22, 2002, the Committee requested all
of Judge Shedd's ``unpublished'' opinions. To fulfill this
extremely broad request, as many as a dozen district court
employees were required to undertake an extensive and time-
consuming manual search of case files within the district as
well as an electronic search of available computer records.
Within 12 days, Judge Shedd provided a first set of documents
to the Committee. As Judge Shedd was able to secure
additional documents from out-of-state court storage, he
supplemented his initial response with a second set of
documents on May 20, 2002. In summary, Judge Shedd
expeditiously supplied the Committee with more than 13,000
pieces of paper. Therefore, all documents responsive to this
request have been available to Committee members for a
significant period of time.
Although it has been suggested that Judge Shedd had not
provided the appropriate documentation, the record will
reflect that Judge Shedd has diligently worked to produce all
documents, of which he and other court employees are aware,
that satisfy the Committee request. While Judge Shedd has
been assigned some 5,000 civil cases, many of these cases
included routine matters, such as foreclosures, and have
ended without any substantive ruling by Judge Shedd.
Likewise, cases are often referred to Federal magistrate
judges who make reports and recommendations to the District
Court Judge. While Judge Shedd has received some 1,400
reports from magistrate judges, many of these are on non-
substantive issues. I can assure you that the opinions Judge
Shedd has supplied represent, to the best of his knowledge,
all of his substantive ``unpublished'' opinions.
Your editorial asserts that civil rights groups have
identified ``important rulings by Judge Shedd that have not
been handed over.'' I have previously requested that these
groups identify the particular cases in which they are
interested, but they have yet to do so. I would once again
urge these groups to identify the cases that cause them
concern, and Judge Shedd will be happy to locate any
information on these cases that will assist Committee members
as they evaluate his nomination.
In short, Judge Shedd has acted promptly, professionally,
and in good faith in his dealings with the Senate Judiciary
Committee. His record is as complete as any other circuit
nominee we have ever had before the Committee. There simply
is no justifiable basis to clam that he has failed to respond
to Committee requests.
It is my sincere hope that Judge Dennis Shedd will soon be
confirmed as a Federal Circuit Court Judge. He is a fine man
who has performed ably on the Federal bench for more than a
decade. He has responsively provided the Senate Judiciary
committee with documentation that chronicles his career as a
distinguished jurist. Quite simply, Judge Shedd's record is
complete, and it proves that he is committed to upholding the
rights of all people under the Constitution.
Sincerely,
Strom Thurmond.
____
Fairness: Judge Shedd's ABA ``Well Qualified'' Rating--The ABA Rated
Judge Shedd ``Well Qualified'' for the Fourth Circuit
According to the ABA Standing Committee on Federal
Judiciary, a nominee is evaluated on ``integrity,
professional competence, and judicial temperament.''
``Integrity is self-defining. The prospective nominee's
character and general reputation in the legal community are
investigated, as are his or her industry and diligence.''
``In investigating judicial temperament, the Committee
considers the prospective nominee's compassion, decisiveness,
open-mindedness, courtesy, patience, freedom from bias, and
commitment to equal justice under the law.''
``To merit Well Qualified, the prospective nominee must be
at the top of the legal profession in his or her legal
community, have outstanding legal ability, wide experience,
the highest reputation for integrity and either have shown,
or have exhibited the capacity for, judicial temperament, and
have the committee's strongest affirmative endorsement.''
Source: The ABA Standing Committee on Federal Judiciary:
What It Is and How It Works, American Bar Association (July
1999) (pages 4 and 6).
____
[From the Post and Courier, Nov. 15, 2002]
Shedd's Advance a Welcome Sign
President Bush's nomination of U.S. District Court Judge
Dennis Shedd of Columbia to the 4th U.S. Circuit Court of
Appeals finally was sent to the full Senate by the Senate
Judiciary Committee Thursday. That overdue action represents
an important step forward in breaking the partisan logjam on
federal judicial appointments.
It also represents a potential step away from what Sen.
Strom Thurmond aptly described as ``destructive politics''
last month
[[Page S11276]]
after Judiciary Chairman Patrick Leahy, D-VT, reneged on his
promise to send Judge Shedd's nomination to the full Senate.
Sen. Thurmond, who's retiring after a long, distinguished
career in politics, vividly expressed his outrage at this
violation of personal trust, telling his colleagues: ``In 48
years in the Senate, I have never been treated in such a
manner.''
And the Judiciary Committee's growing habit of blocking
presidential appointments to the Federal bench has reached
critical mass over the last year and a half. Democrats'
protests that Senate Republicans had subjected President
Clinton to the same mistreatment don't hold up when the rates
of rejection are considered, particularly at the appeals
court level. That blatantly party-line obstruction of
judicial appointments became a campaign season liability for
the Democrats in some states, including South Carolina, where
Republican Lindsey Graham repeatedly stressed the need to
break that pattern by giving President Bush a GOP Senate--and
a GOP-controlled Judiciary Committee--in his winning campaign
to replace Sen. Thurmond.
Recognizing the incoming Senate's intentions on this issue,
and the voting public's message, Sen. Leahy didn't call for a
committee roll-call vote on the nominations of Judge Shedd
and Professor Michael McConnell to the appeals courts
Thursday, instead allowing them to advance.
And despite familiar objections from special-interest
groups that seem intent on branding any judge who has ever
issued a purportedly conservative ruling as a reckless
``extremist,'' Judge Shedd has the support of not just
leading Republicans, but of Sen. Ernest F. Hollings, D-SC.
The senator has been openly critical of the Judiciary
Committee's previous attempts to derail this nomination.
Thursday's Judiciary Committee decision was not merely a
victory for Judge Shedd, President Bush, Sen. Thurmond and
Sen. Hollings. It was a victory for fairer, more efficient
consideration and confirmation of presidential judicial
appointments by the Senate.
____
[From the Greenville News, Oct. 15, 2002]
Insulting Thurmond
Senate Judiciary Committee Chairman Patrick Leahy, a
Democrat from Vermont, did a number last week on retiring
South Carolina Sen. Strom Thurmond, and in the process
thumbed his nose at both the Constitution and any sense of
fair play. Highly partisan Democrats don't want Thurmond's
choice for the 4th U.S. Circuit Court of Appeals, U.S.
District Judge Dennis Shedd, to get a well-earned promotion
to the appeals court.
Shedd is eminently qualified, but he has been painted as an
opponent of civil rights, the disabled and common workers.
The case hasn't been made, but then, the Democrats who oppose
his nomination aren't interested in making the case with
facts. They have conveniently used Shedd as an election
issue.
With the U.S. Senate in the hands of Democrats, it has
become something of a sport in Washington to prevent
President Bush from getting his top choice for federal
judges. But Sen. Leahy sunk to a new low last seek by
refusing to allow a vote on the Shedd nomination, and in
doing so, it became obvious he had flat-out lied to Sen.
Thurmond. Leahy had promised South Carolina's 99-year-old
senior senator a Judiciary Committee vote on Shedd, but that
was before word leaked that a committee Democrat would vote
for Shedd. If his nomination got to the full Senate, he would
be approved, especially with South Carolina's Sen. Fritz
Hollings wholeheartedly supporting this nomination.
The Senate Judiciary Committee has become a graveyard for
Bush's top choices for seats on the federal appeals court.
The Democrats have flexed their muscles to prevent the
nomination of reputable choices--such as Charles Pickering
and Priscilla Owen--from making it to the Senate floor for a
vote they probably would win. But now the powerful Leahy has
proven he can go lower--by denying a vote, even after he made
a promise to allow one.
Thurmond was indignant last week, making a rare Senate
speech in which he said about Leahy, ``In my 48 years in the
United States Senate, I have never been treated in such a
manner.'' Thurmond is leaving a Senate in which a man's word
is no longer his honor.
____
[From the Orangeburg Times and Democrat, Oct. 13, 2002
Nomination of Shedd Held Hostage
The continuing battle over federal judgeships grows more
frustrating.
It's a partisan and philosophical battle that has gone
beyond what was ever intended by the framers of our
Constitution. The founders gave presidents appointment power
for judges, with the Senate's role being advice and consent.
Particularly since the Clinton years of the 1990s, the
process has been paralyzed by politics. A Republican Senate
left Clinton nominees hanging, never even giving them a
hearing and a vote. The Democratic Senate has been doing the
same thing with President Bush's nominees.
On Tuesday, partisanship got closer to home when Cordova
native and S.C. U.S. District Judge Dennis Shedd was denied a
vote by the Senate Judiciary Committee on his nomination to
the 4th Circuit Court of Appeals.
The decision to delay the vote prompted S.C. Republican
Sen. Strom Thurmond, for whom Shedd once served as a top
aide, to react angrily at the committee and its Democratic
leader, Sen. Patrick Leahy of Vermont. Leahy said the vote on
Shedd was too contentious for the session and would have
sparked a debate delaying action on other judicial
candidates.
That may be, but Thurmond was taking the rejection
personally, addressing the Senate Judiciary Committee himself
in a rare appearance.
``In my 48 years in the U.S. Senate, I have never been
treated in such a manner. You assured me on numerous
occasions that Judge Shedd would get a vote, and that is all
that I have ever asked of you. I have waited patiently for 17
months, and I have extended every courtesy to you,'' Thurmond
said to Leahy.
The judgeship battles are likely to trample on more Senate
decorum, particularly when judges meet vocal opposition as
has Shedd. Despite endorsements by the American Bar
Association and others, Shedd has faced criticism from the
NAACP and other organizations contending his record shows no
sympathy for those in discrimination cases. Sixth District
Congressman Jim Clyburn is among opponents.
But Shedd enjoys the support of both Republican Thurmond
and Democrat Ernest F. Hollings from South Carolina. And he
is former chief legal counsel to the Senate Judiciary
Committee, which Thurmond formerly chaired.
Thurmond's anger over the delay of Shedd's nomination
probably won't change the equation.
A vote probably will not come until next year--and may not
come then unless the Republicans regain control of the U.S.
Senate in November's election. That would mean that Thurmond,
who will soon turn 100 and is not seeking re-election, won't
be voting on a judicial candidate he recommended and
President Bush nominated way back on May 9, 2001.
In all, Bush has nominated 126 U.S. Appeals Court and U.S.
District Court nominees, and the senate has confirmed 80: 14
judges to appeals courts and 66 to district courts. Most of
the others haven't been put to a vote.
Shedd should not be one of them. His record is a good one,
and it is that record that should be the test of his
approval, not what others believe about his personal or
political philosophy.
Shedd is certainly not out of the judicial mainstream and
his opinions are not rooted in controversy.
Sen. Hollings is known for his candid if not controversial
assessment of people. The S.C. Democrat is solidly behind
Shedd, being the one to introduce him initially to the Senate
Judiciary Committee.
Saying Shedd ``has an outstanding record of sound
judgment,'' Hollings told the Judiciary Committee that Shedd
is ``my kind of judge--hard and tough, but hard and tough on
both sides.''
His nomination should be brought to a vote by the Senate
committee and then the full Senate, where we're confident he
will win approval.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I will speak today in morning business
briefly.
The PRESIDING OFFICER. The Senator may proceed.
Homeland Security
Mr. DORGAN. Mr. President, I rise to say a few words about the issue
of homeland security. I will not talk at the moment about the bill
itself, which we will vote on tomorrow, but a couple of issues dealing
with homeland security that are very important, that have been raised
in recent days and need to be discussed.
One issue deals with something that is happening in the Defense
Department. My colleague Senator Nelson from Florida spoke of it
earlier today. That is the creation of an Information Awareness Office
and the prospect of having an agency that would amass your most
personal information--credit card purchases, travels, medical
information, and so on--and put it into a single database. That
concerns me greatly. I will speak about that in a moment.
But first I will speak about another issue relating to homeland
security. This is an issue that was recently highlighted by a task
force headed by former Senator Warren Rudman and former Senator Gary
Hart.
That task force included former Secretaries of State Warren
Christopher and George Shultz, retired Admiral William Crowe, former
Chairman of the Joint Chiefs of Staff, and others. There is a very
significant blue ribbon task force.
They issued a report that was sponsored by the Council of Foreign
Relations. The report was titled ``America Still Unprepared, America
Still In Danger.''
[[Page S11277]]
The task force found that 1 year after the September 11 attacks,
America remains--according to them--dangerously unprepared for another
terrorist attack. At the top of the list of concerns in this task force
was this:
650,000 local and State police officials continue to
operate in a virtual intelligence vacuum without access to
terrorist watch lists that are provided by the United States
Department of State to immigration consular officials.
Why is this important? Well, consider that 36 hours before the
September 11 attack, one of the hijackers who piloted the plane that
crashed in Pennsylvania, named Ziad Jarrah, a 26-year-old Lebanese
national, was actually pulled over by the Maryland State Police for
driving 90 miles an hour on Interstate 95. If this fellow's name had
been on the State Department terrorist watch list--and it happens that
it was not--there would have been no way for that Maryland State
trooper to know it. That Maryland State trooper can type a name into
the system and go to the NCIC where they have the database of convicted
felons, but that trooper has no access to the watch list that the
Immigration Service has courtesy of the State Department.
You have all of these people around the country--law enforcement
officials--who are actually the first line of defense and the first
responders in the event something happens. And they are out there
stopping people with traffic stops and stopping suspicious people who
are driving automobiles without license tags, and so on. They don't
have any idea whether someone they have just stopped is a known
terrorist on a watch list prepared by the State Department and given to
the Immigration Service and given to the consular offices. Why? Because
they currently have no mechanism to access it.
Right now, a county sheriff somewhere in a northern county in North
Dakota is patrolling a road. If down that road for some reason would
come a terrorist who crossed over a remote section on the border
between the United States and Canada and a county sheriff stops that
known terrorist who is on the watch list for driving 90 miles an hour
on Highway 22, there isn't any way that county sheriff is going to be
able to access that watch list and know that he or she has pulled over
a known terrorist.
That is wrong.
Let me read an excerpt from the Hart-Rudman report, discussing what
they regard as a top concern:
With just 56 field offices around the nation, the burden of
identifying and intercepting terrorists in our midst is a
task well beyond the scope of the Federal Bureau of
Investigation. This burden can and should be shared with
650,000 local county and State law enforcement officers. But
they clearly cannot lend a hand in the counterterrorism
information void that now exists. When it comes to combating
terrorism, the police officers on the beat are effectively
operating deaf, dumb and blind.
That is from the report.
Again, quoting from the report:
Terrorist watch lists provided by the United States
Department of State to immigration and consular officials are
still out of bounds for State and local police. In the
interim period, as information sharing issues get worked out,
known terrorists will be free to move about to plan and
execute their attacks without any bother from local law
enforcement officials because they can't know their names
and they can't access the list.
My staff has been in contact with this task force. We have also been
in contact with the State Department and the White House, asking when
something is going to be done to connect the dots here. Since we made
these contacts, the administration is apparently looking for ways to
integrate that terrorist watch list--called the Tipoff database--with
the National Crime Information Center which is accessible by State and
local law enforcement officers. I call on the administration to
expedite, as much as is possible, the effort to make this happen. We
can't waste another day in this regard, as all of us know.
The head of the CIA said the other day that we are in as much risk
from a terrorist act as we were the day before September 11. If that is
the case, then we ought to expect that all law enforcement officials
around this country would have access to that terrorist watch list.
Let me go now to the second issue. I just spoke of the need for law
enforcement to have access to a list of known terrorists and those who
associate with known terrorists for purposes of protecting this
country.
Well, one can certainly go to the other extreme in gathering
information in the name of homeland security. And a good example of
that is a project that is being developed in the Department of Defense,
by the Information Awareness Office.
The Information Awareness Office is developing a long-term plan for
what is called data mining. A master plan would be developed by which
all of the information that moves around electronically in our
country--every purchase you make with a credit card, every magazine
subscription you buy, every medical prescription you fill, every Web
site you visit, every e-mail you send or receive, every academic grade
you ever received, every bank deposit you made, every trip you book -
would go into a massive database. And the Federal Government would use
the database to identify suspicious behavior.
That is not what we ought to be doing in this country. We ought to
have a war on terrorism. But we ought not, in our zeal to engage in
this war on terrorism, in any way break down the basic civil liberties
that exist in our Constitution. The right to privacy is one of the most
basic rights in America--the right to expect there is not a Big Brother
with a massive computer system gathering all the information about
everything everyone is doing in this country and evaluating it,
perusing it, and moving it back and forth to try to determine who might
or might not be doing something maybe suspicious.
That is not, in my judgment, in concert with the basic civil
liberties that we expect in this country and that are guaranteed to the
citizens in this country. We must stop this before it starts.
I understand that a change in law--specifically a change in the 1974
Privacy Act--would be required to implement this data mining program.
That, in my judgment, is not going to happen in the Congress. I would
not support such a change, and I think most of my colleagues would
oppose a change of that type.
(Mrs. MURRAY assumed the chair.)
Mr. BYRD. Will the Senator yield?
Mr. DORGAN. I am happy to yield.
Mr. BYRD. The Senator says he is confident that the Congress will do
no such thing? I say most respectfully to the Senator, I would not
count on what the next Congress might do. I am very much afraid of what
the next Congress might do in many areas. Doesn't the Senator share
that feeling?
Mr. DORGAN. Well, I happen to----
Mr. BYRD. I say, Congress normally would not do that. But I am not
too sure what the next Congress might do.
Mr. DORGAN. Madam President, I understand the concern expressed by my
colleague. Let me say, there is a great disinfectant in this country,
and that disinfectant is sunlight. If we can shed some light on these
kinds of proposals, I do not think there is any question the American
people will demand--will demand--of this Congress to preserve the basic
rights, and especially the basic right to privacy that exists and that
they expect to continue in the life of this country.
So I understand the point that the Senator from West Virginia makes,
but I believe the more we disclose the efforts of those who would
suggest that it is all right to snoop about everybody and everything
that goes on in this country, the more we will expose, in my judgment,
the great, great concern and anger of the American people to demand
their right to privacy and demand that we not amend the 1974 Privacy
Act in order to accommodate this kind of activity.
Mr. BYRD. Madam President, will the Senator yield?
Mr. DORGAN. Of course I will yield.
Mr. BYRD. I am not going to detain the Senator. My colleague here
wishes to get the floor, and I am not going to detain him, but I still
have to say that I am surprised at some of the things we do here.
The distinguished Senator from North Dakota is one of the brightest
Senators I have ever seen over my good many years in this institution.
But let's take the war, the resolution on a war with Iraq. I took the
position that if we are, indeed--I was against that resolution, but I
said, if, indeed, we are going to shift this kind of power to the
President, a power to declare war, then
[[Page S11278]]
shouldn't we put a sunset provision in, shouldn't we stop that, at
least give him 2 years, and then say that we have to take another look
at that?
Was the Senator surprised, as I was, to see this very body--and even
more surprisingly to see our own party--oppose that provision, a sunset
provision, when the Constitution says Congress shall have the power to
declare war, and we were shifting that power to the Chief Executive to
determine how and when our military forces would be used, for how long
and where? And he has that power in perpetuity. The next President
after him will have that same power.
I was surprised. I am surprised to see where this Senate, which has
been the great protector of the American people and the constitutional
system for over 200 years, is going of late. I have been very bitterly
disappointed in this Senate, of which I am a part, to see where it is
going. It seems to have lost its nerve, lost its way, lost its vision,
lost its understanding of its role under the Constitution.
Well, I thank the Senator and yield the floor.
Mr. DORGAN. Madam President, let me conclude by saying, I understand
the angst and the concern expressed by my colleague.
After September 11, a day that this country experienced a terrible,
terrible tragedy--we have come together and we have worked together to
try to protect our homeland. But there have also been, in this period,
instances where we have gone overboard. We should not sacrifice privacy
rights in the name of homeland security. We need to find an appropriate
balance between the two.
There is much we can do, and much we should do, and much we will do,
in my judgment, to improve law enforcement capabilities, but we can do
that without injuring the American people, without diminishing the
right to privacy.
I understand the point that the Senator from West Virginia makes. But
my point is, if someone is creating an office with the expectation that
Congress will amend the 1974 Privacy Act so that the Federal Government
can track where you shopped, where you spent money, where you traveled,
what airline you ride on, how much you owe, what kinds of grades you
received--if someone thinks that the Congress is going to allow that to
happen, that someone is sadly mistaken.
I do not think Congress is going to allow that to happen. I am not
going to allow that to happen. My colleague from Florida spoke on the
floor earlier today and it prompted me to want to come to say, as one
Member of the Senate, I think there will be many of us who come to the
floor of the Senate and say, this isn't something that will be allowed.
This is not something that Congress will entertain in any serious way.
The right to privacy is critical. It is important. And we must respect
it.
So I spoke about two things: One is the need for law enforcement
officials around the country to access the State Department terrorist
watch list. That is important, and it is necessary. I also spoke about
the prospect of gathering raw data about everybody in the country,
about everything they do, to identify ``suspicious'' behavior. That is
dangerous, and we ought not to consider it.
Madam President, others want to speak. I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent to speak in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Children's Health Insurance Program
Mr. ROCKEFELLER. Madam President, I rise today to ask unanimous
consent for a bill which has been hotlined on our side and which
relates to improved protection for children under the Children's Health
Insurance Program. And it is not a bill which I will hand to the clerk
at the time that I have completed my remarks, nor will I ask unanimous
consent that it be printed in the Record, although it is ready and
being hotlined, because we want to try to resolve a few remaining
problems from several States on our side, which I do not think we are
going to be able to do. We have tried in every way to do it.
Fundamentally, the Senator from West Virginia is on his feet trying
to convince those States, whether they are here or not, whether their
staff members perhaps are, not to try and do what has happened so often
before under the Children's Health Insurance Program, and that is a
State at the last moment using the leverage of the final seconds of
Congress to try to leverage a better deal for itself.
The House is coming back to pass homeland security. There was one
objection made on that side in the House. That person is being worked
with at this time. If that objection is not raised and there is not an
objection raised here, then the Children's Health Insurance Program
could get funding for another 2 years. If not, funds will be returned
to the Federal Government. Children will not get health insurance, and
there will be a very dramatic effect which this Senator does not want
to see happen.
This bill, which I will not ask unanimous consent to report, is very
much bipartisan. It has been worked on for a very long period of time.
It started back in 1992, something of that sort. It had a slow
evolution because Senator John Chafee and myself wanted very much for
the bill to be done under Medicaid. The Governors struggled strenuously
to have the entire matter handled on a State-by-State basis, which was
in effect a mistake because it meant some States that were very
aggressive picked it up, and in others that were not so aggressive--my
own being one of those--it took a number of years for the program to
get going. That was lost time, lost health care for children.
It is very much a bipartisan, bicameral agreement that we believe is
in the best interests of our constituents and that we can do it on the
Children's Health Insurance Program this year.
The budget situation clearly is going to get a lot worse, starting in
January. We need to protect the CHIPS funds before they are spent on
other matters, as indeed they will be because, as I indicated, the
money will be returned to the Federal Government. Don't expect that to
come back into children's health insurance.
It is my understanding there are a number of Senators who have
expressed concern and have stated their intention to hold up this bill
in an effort to get the best possible outcome for their State. I do
understand that. I have been through that a number of times even this
year with individual States, now two or three States, one or two
States, where they are trying to use a formula, which has been worked
out, which applies to all States equally, to increase that formula to
allow them to do other things which are outside of the Children's
Health Insurance Program.
The Children's Health Insurance Program is obviously larger than any
one State. My State does not get what it needs. There are only 20,000
children on a regular basis who are covered, although 55 have come in
and out of that program, but I cannot say in all conscience that 55 are
covered. The Children's Health Insurance Program is in a situation that
if we do not act now, this money will be lost from the Children's
Health Insurance Program for good.
It will happen. We have a new administration, new priorities, new
budget, and the same OMB director who has very firm views about this.
This is not, however, a permanent solution. I am trying to stanch the
drain, the bleeding for these next 2 years. I am trying my level best
to do that.
This bill actually has a chance to pass in the Senate and in the
House and to be taken up and passed in its entirety. I only ask with
all of my heart that Senators give it a chance, that Senators not try
to leverage the last possible variety or program outside of the CHIP
program or extension of or some particular addition which will bring
down, in fact, if an objection at this very late stage, with a day or
so remaining, which will obviously work, is held. If that objection is
held, then there will be no bill at all.
Earlier this year I worked in a bipartisan manner to develop a very
comprehensive proposal based on a basic and fundamental philosophy that
no child should go without needed health care. I was pleased at the
time to be joined by my good friend Senator Lincoln Chafee, Senator
Kennedy, and Senator Hatch to introduce the
[[Page S11279]]
Children's Health Insurance Improvement and Protection Act of 2002.
Unfortunately, no action has been taken on that proposal, and I am left
worrying that we will end this session in a day or two having forgotten
our children.
Therefore, I am introducing a proposal that will at least protect the
Children's Health Insurance Program for the next 2 years. This is not a
permanent solution. This can change. But it is a solution for the next
2 years so money does not have to be returned. Children will be left
behind.
The Children's Health Insurance Program, as the Presiding Officer
knows very well, has been an unqualified success. It has been an
amazing success. Last year 4.6 million children across America were
enrolled in the Children's Health Insurance Program and the percentage
of children without health insurance has declined in recent years by
reason of the Children's Health Insurance Program. In my State of West
Virginia, the CHIP program provides health coverage on a permanent
basis to over 20,000. And, of course, it needs to do much better than
that. As I indicated, we were slow in starting a number of years ago.
We have picked up our pace more recently.
Health insurance coverage is key to assuring children's access to all
kinds of health care. I need not go into this. Uninsured children who
are injured are 30 percent less likely than insured children to receive
medical treatment, 3 times more likely not to get a needed
prescription. Health outcomes are affected in all respects. As children
do eventually become adults, they carry with them the legacy of what
they didn't get as children in the way of health insurance.
However, the continued success of the CHIP program is now, as I have
indicated--I hope soberly enough--in very serious jeopardy. On
September 30 of this year, $1.2 billion in unspent children's health
insurance funds was sent back to the General Treasury. It is gone. In
addition, some $1.5 billion of these funds are projected to revert back
to the Treasury next September 30. If we do not act to protect this
money for children and send money to the States that can in fact use
it, we will have failed our children.
A 2-year fix is only a first step. There is much more that we need to
do. The Bush administration projects that 900,000 children will lose
their health insurance coverage between fiscal years 2003 and 2006 if
we do not take action this year.
The bill I am discussing, that I hope will not be blocked by any
individual Member, is tremendously important. It is called the CHIP
Dip. Federal CHIP funding has dropped by more than $1 billion this
year, and this reduction has no underlying health policy justification
whatsoever. I cannot honestly imagine that with so many children at
stake in so many different States, that one would look at the last
moment to leverage a particular advantage.
I have been through this before even this year with a Senator from
another State. And in formulas, there are various ways, technical ways,
of things happening. Those can be brought up in a very careful and
effective way at the last moment, and people can dig in their heels.
But I beg Senators to look at the overall results for our children.
If we do not get this bill, it will affect the next 2 years. All of
this, I might say, resulted in something that took place during the
budget compromises that we had in 1997. These programs all have sort of
obscure beginnings, but there are very large consequences.
As a result, a number of States will have insufficient Federal
funding to sustain their enrollment. They just won't have that money.
They will have no choice but to scale back or limit their Children's
Health Insurance Programs. I cannot imagine anything worse.
We have talked about judges this afternoon while I was presiding. We
talked about homeland security. I am talking about children's health
insurance. I would not put that second to either of the previous two
discussions. I care passionately about it. I remember precisely when
the Senate got together and asked all the staff to leave, and 20 of us
with very different points of view sat around a number of years ago and
we worked out a children's health insurance budget, which passed very
easily. Some people had never talked about health insurance at all, and
we said this cannot do for children. It passed and it has been moving
along ever since.
The biggest problem will result in enrollment cuts in the CHIP
Program and the future health problems, as I indicated, of adults who,
as children, could have received benefits under the CHIP Program but
who did not because we were unable to take action, or the program was
fundamentally insufficient.
We are trying to do the best we can. I am introducing this concept of
the bill. It is being hotlined on our side. It has not been hotlined on
the Republican side yet.
Again, it is only a first step that we need to take. We need a
comprehensive and reasonable approach to shore up CHIP financing and
avert a devastating enrollment. I cannot think of anything more
important that we can do as a nation.
I conclude by saying we need to put more money into this program.
However, this legislation--at least for the short period--will protect
$1.2 billion that should be spent on children's health insurance rather
than on roads or other matters, and will put money into States that can
use it now to cover children. It is the least we can do.
I urge my colleagues to support this legislation, and I urge my
colleagues on the other side to support it in the last days when it is
hotlined on their side of the aisle. I urge my colleagues on this side
of the aisle to support it for the protection of 4.6 million children
across America and giving us a chance to do more.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. BYRD. Madam President, I see two of my distinguished colleagues
on the floor of the Senate who want to speak. At this moment, I am in
no great hurry to get away. I am happy to accommodate both of them.
I ask unanimous consent that I may yield to either Senator Specter or
Senator Frist--Senator Frist first. How much time would the Senator
like?
Mr. FRIST. Less than 15 minutes.
Mr. SPECTER. I would like 10 minutes.
Mr. BYRD. For not to exceed 25 minutes--15 and 10--and that I then
regain my right to the floor, even though I may walk away from the
floor in the meantime.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. I thank our distinguished President pro tempore for
accommodating our schedules.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.
Mr. FRIST. Madam President, I ask unanimous consent to speak in
morning business, if that is necessary.
The PRESIDING OFFICER. Without objection, it is so ordered.
Homeland Security
Mr. FRIST. Madam President, I rise to address a homeland security
issue that we will be voting on tomorrow morning. Specifically, I would
like to discuss the Lieberman amendment. This amendment strips out
certain provisions which Senator Lieberman and other proponents of the
provision believe are unrelated to the underlying homeland security
bill.
More specifically, I want to address the issue of vaccines. There are
three claims that have been made by the proponents of the Lieberman
amendment, as they relate to the vaccine provisions. For my colleagues
who were not on the floor Friday, I refer them to some of my underlying
comments on the policy of the homeland security bill and the vaccine
provisions which I mentioned on the floor Friday.
This afternoon, what I would like to do specifically is examine these
three claims. First, the proponents of the Lieberman bill say that the
underlying vaccine provisions in the bill remove individual rights to
sue. Their second claim is that Thimerosal, contained in vaccines,
causes autism. The third claim I would like to refute is that these
vaccine provisions do not belong in the homeland security bill.
Claim No. 1: The proponents of the Lieberman amendment say the
vaccine provisions remove individual rights to sue. They are saying
these provisions are an example of Republicans fronting for special
interests; that they take away individual rights to sue and provide
legal immunity from liability for vaccine makers.
[[Page S11280]]
My response is that these provisions do nothing more than require
injuries that are related, or allegedly related, to a vaccine to first
proceed through the Vaccine Injury Compensation Program (VIC program).
The VIC program was very specifically established in the mid-1980s for
all injuries that are allegedly related to a vaccine.
Since the mid-1980s, all such injuries alleged to be caused by a
vaccine are collected and channeled quickly and appropriately first
through this Vaccine Injury Compensation Program. A no-fault, efficient
alternative to our tort system; very quickly.
That requirement is law today. The provisions that are in the
underlying homeland security bill simply restate and clarify what that
law is and what that law does. If there is an alleged vaccine-related
injury, you first go to the Vaccine Injury Compensation Program. After
a period of time, whether or not the program decides in your favor,
whether or not there is what you regard as adequate compensation, at
the end of that program, you can simply state that you still want to go
to court. Whatever that program decides, you are free to go to court.
You are free to sue, and there are no caps in terms of liability.
The provisions in this bill take away no one's right to sue. The
provisions in the underlying homeland security bill provide no immunity
from liability.
A little perspective: There are currently about 875 cases alleging
injury due to the presence of a preservative called Thimerosal that is
no longer used in vaccines. Right now, these 875 cases are in front of
the Vaccine Injury Compensation Program, consistent with the law since
the 1980s. These cases are in no way affected by the provisions in the
homeland security bill. I want to repeat that. These 875 cases that are
in the Vaccine Injury Compensation Program are being dealt with in an
orderly process that was outlined several months ago, and they are in
no way affected by the provisions in the underlying bill.
If individuals are unsatisfied with what the Vaccine Injury
Compensation Program decides, at the end of it, you can say: Forget
what you have concluded from me; I am going straight to court. Anyone
can do that today, and one can still do that with the provisions of
this bill.
The only people who are really affected by the language in this
underlying homeland security bill are the trial lawyers who are trying
to circumvent the very law this body passed in the mid-1980s--a law
which has worked very well since that point in time. The trial lawyers
basically are trying to create a loophole in the current law.
The provisions in the underlying homeland security bill state very
simply that you first go to the Vaccine Injury Compensation Program,
and for good reason. After which, you can still go to court and sue
with no caps or no limits.
Claim No. 2--and this one probably bothers me as much as any because
it is twisting medical science. I am not sure exactly what the reasons
are, but this claim is Thimerosal-containing vaccines cause autism.
Additionally, proponents claim that Thimerosal as an additive in a
vaccine has a causal relationship to the autism, a disease with
increasing incidence. The incidence of autism is increasing. We do not
know why, and that is why it is important for us to conduct the
appropriate research.
There has been a lot of misrepresentation about the various vaccine
provisions in the bill, but this one really irks me the most. It is
grandstanding which crosses the line because it is not what science
says. It is not what the medical community says. It is not what medical
science in the broadest sense says. In fact, it is the exact opposite
of what the Institute of Medicine has said.
Last week on the floor one of my colleagues said these provisions in
the underlying homeland security bill--saying why they must be
stricken--said specifically:
Liability protection for pharmaceutical companies that
actually make mercury-based vaccine preservatives that
actually have caused autism in children. . . .
That is scientifically wrong. Science does not validate it. Let me
tell you what science says. I quote the October 2001 Institute of
Medicine record. The report is called ``Thimerosal-Containing Vaccines
and Neurodevelopmental Disorders.'' That report concluded:
The hypothesis that Thimerosal exposure through the
recommended childhood immunization schedule has caused
neurodevelopmental disorders is not supported by clinical or
experimental evidence.
The argument that is being used in support of the Lieberman amendment
as the reason to support stripping these provisions is based on a false
premise, a totally false premise, according to medical science today.
What bothers me about it, and the reason this bothers me more than any
of the other three claims, is probably because it scares parents. It
says vaccines are going to hurt your children, and that demagoguery is
going to mean these parents are not going to let their children get
these childhood vaccines. These vaccines fight diseases that have
caused pandemics and epidemics, diseases that will kill children if we
do not make the vaccines available. Epidemics will occur, and death
will ensue.
I challenge my colleagues to go to the American Academy of Pediatrics
and to the Institute of Medicine and ask that question: Does
Thimerosal, according to the scientific literature, cause autism? The
answer is no.
A number of the people on the floor have also held up a New York
Times magazine article quoting it as further proof that the
preservative Thimerosal causes autism. I do not want to spend a lot of
time on it, but I do want to read what the people who are quoted in the
article are saying.
I ask unanimous consent that two letters be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Institute for Vaccine Safety, Johns Hopkins University,
Bloomberg School of Public Health,
November 11, 2002.
Proposed title: Misleading the public about autism and
vaccines.
To the editor: The unfortunate use of a sensationalized
title in the article published November 10, 2002 in the New
York Times Magazine ``The not so crackpot autism theory:
reports of autism seem to be on the rise. Anxious parents
have targeted vaccines as the culprit. One skeptical
researcher thinks it's an issue worth investigating,''
absolutely misrepresents my opinion on this issue. Also, the
caption under the photograph of me ``Neal Halsey says that
vaccinologists have no choice but to take the thimerosal
threat seriously'' is not a statement that I ever made. There
is no ``threat'' as thimerosal has been removed from vaccines
used in children. The headline, the press release issued
prior to publication, and the caption are inappropriate. I do
not (and never did) believe that any vaccine causes autism.
I stated to the author on at least two occasions that the
scientific evidence does not suggest any causal association
between vaccines and autism and he reaffirmed that the
article would reflect my opinion. Unfortunately, the title
implies the opposite opinion. A ``fact checker'' employed by
the New York Times asked me several questions and minor
corrections were made, but I was never shown the text of the
article and no questions were asked about the title that
implies a belief that I do not hold. It was my expectation
that the title would be about thimerosal and the difficult
decisions that were made during the past three years that
have resulted in the removal of thimerosal as a preservative
from vaccines administered to infants and young children.
Changes in the use of thimerosal were made by the Food and
Drug Administration and the vaccine industry with urging by
the American Academy of Pediatrics and the Public Health
Service in a concerted effort to make vaccines as safe as
possible.
The sensationalized title sets an inappropriate context for
everything in the article. Readers are led to incorrectly
believe that statement in the article refer to autism. I have
expressed concern about subtle learning disabilities from
exposure to mercury from environmental sources and possibly
from thimerosal when it was used in multiple vaccines.
However, this should not have been interpreted as a support
for theories that vaccines cause autism, a far more severe
and complex disorder. The studies of children exposed to
methylmercury from maternal fish and whale consumption and
the preliminary studies of children exposed to different
amounts of thimerosal have not revealed any increased risk of
autism.
Inappropriated reporting has contributed to public
misunderstanding of vaccines and other health care issues.
The use of deceptive title is one of the primary means that
newspapers have misled the public. The New York Times and
other newspapers need to conduct self-examinations into this
role in misleading the public and modify procedures
accordingly to help prevent future major misrepresentations
of scientific data and opinions. Another disserve to the
public comes
[[Page S11281]]
when scientists become reluctant to talk with the media for
fear of being misquoted or misrepresented. I have already
spent a great deal of time correcting the misinformation in
the Sunday's NYT Magazine article. Naturally, the next
reporter from the NYT who contacts me will be met with
skepticism and reluctance unless changes are made to prevent
recurrences of this debacles.
Apparently, editors, not authors, write most titles. To
avoid misinterpretations authors should propose titles and
assume responsibility for making certain that titles do not
misrepresent the opinions of individuals or information
presented in the article. Proposed titles and subtitles
should be included in the review by ``fact checkers''' when
interviewing people whose opinions are included in the title.
The best way to avoid these problems would be to permit
individuals referred to in articles an opportunity to read a
draft of the text before it is to late to correct mistakes or
misunderstandings.
The New York Times and other newspapers and magazines
should have policies requiring authors, editors and fact
checkers to disclose personal associations with issues
covered in articles they are involved in preparing and they
should be relieved from their responsibility for articles
where they have personal issues or conflicts of interest.
The general public and parents of children with autism have
been misled by the title of this article and the news
release. This is a disservice to the public and the value of
my opinion has been diminished in the eyes of physicians,
scientists, and informed members of the public. I encourage
interested readers to review my scientific publications and
to read objective reviews of this and under other vaccine
safety issues conducted by the Institute of Medicine
(www.iom. edu).
Neal Halsey, M.D.,
Director.
____
Department of Pediatrics, Duke University School of
Medicine,
Durham, NC.
Subject: Thimerosal issue.
To the Editor: As one of the two authors of the July 7,
joint PHS/AAP 1999 statement that you cite in your article on
``The Not-So-Crackpot Autism Theory'' it is appropriate that
several misconceptions in your article be rectified. The EPA
guidelines on mercury levels related to methyl mercury, a
very different compound from ethyl mercury which is the
metabolite of thimerosal. Three other guidelines issued by
federal and World Health Organization agencies were not
exceeded by the vaccine levels.
Nevertheless we chose to recommend the removal of
thimerosal, not because there was any evidence of its
toxicity to vaccine recipients, but to enhance public
confidence in vaccines. To the credit of the pharmaceutical
industry, within 1 year all vaccines for children were free
of thimerosal.
The only possible exception is influenza virus vaccine
which is not recommended for children less than 6 months of
age and for which a newly licensed product is now available
free of thimerosal. Despite the absence of thimerosal from
these products over the past two years, there has been no
decrease, in fact an alleged increase, in the incidence of
autism among our childhood population--strongly suggesting
other factors involved in its etiology. Regrettably this
exemplifies another issue where the best-intentioned actions
have served to benefit no one other than the liability
lawyers who feed on events of this sort as sharks in bloodied
waters.
Yours sincerely,
Samuel L. Katz, MD,
Wilburt C. Davison Professor
and Chairman Emeritus.
Mr. FRIST. Madam President, I will quote a couple paragraphs from
each.
The first is from Dr. Neal Halsey, who is profiled in the article in
the New York Times and who is characterized as being concerned about
the Thimerosal threat. Dr. Halsey heads up the Johns Hopkins University
Institute for Vaccine Safety, and he wrote saying that this story
absolutely misrepresents my opinion on this issue. . .
.There is no ``threat'' as thimerosal has been removed from
vaccines used in children. The headline, the press release
issued prior to publication, and the caption are
inappropriate. I do not (and never did) believe that any
vaccine causes autism.
He continues:
I stated to the author on at least two occasions that the
scientific evidence does not suggest--
Does not suggest--
any causal association between vaccines and autism and he
reaffirmed that the article would reflect my opinion.
Unfortunately, the title implies the opposite opinion.
He concludes:
The general public and parents of children with autism have
been misled by the title of this article and the news
release. . . .I encourage interested readers to review my
scientific publications and to read objective reviews of this
and other vaccine safety issues conducted by the Institute of
Medicine.
The second letter is from Dr. Samuel Katz, Professor and Chairman
Emeritus at the Department of Pediatrics at the Duke University School
of Medicine. Dr. Katz writes:
As one of the two authors of the July 7 joint PHS/AAP 1999
statement that you cite in your article . . . it is
appropriate that several misconceptions in your article be
rectified. . . .we chose to recommend the removal of
Thimerosal, not because there was any evidence of its
toxicity to vaccine recipients, but to enhance public
confidence in vaccines. To the credit of the pharmaceutical
industry, within 1 year all vaccines for children were free
of Thimerosal.
Dr. Katz concludes:
Despite the absence of Thimerosal from these products over
the past two years, there has been no decrease, in fact an
alleged increase, in the incidence of autism among our
childhood population--strongly suggesting other factors
involved in its ideology. Regrettably, this exemplifies
another issue where the best-intentioned actions have served
to benefit no one other than the liability lawyers who feed
on events of this sort as sharks in bloodied waters.
The final statement is from Every Child by Two, the Rosalynn Carter-
Betty Bumpers Campaign for Early Childhood Immunizations in a statement
released today:
Most importantly, we are concerned that the Senate may be
inadvertently fueling fears that vaccines cause autism. In
fact, well-respected studies concluded that the evidence is
inadequate. Much research is available to support these
conclusions.
Madam President, the third claim--and I will be brief on the third
claim--we have heard on the floor from the advocates of the Lieberman
amendment, which I encourage my colleagues to oppose, is that the
vaccine provisions do not belong in the homeland security bill. I would
argue just to the contrary. If we do not have a stable manufacturing
base for vaccines, there is absolutely no way we can prepare our
communities and our Nation in the event there is a biological warfare
attack on our soil.
We talk a lot about smallpox, and we all know today we are
inadequately protected because today we are inadequately vaccinated
against smallpox. We cannot destroy the manufacturing base for our
vaccines today. We started with 12 vaccine companies in this country,
companies that made vaccines. In large part because of the liability
issue, the number of companies making vaccines has decreased to four
vaccine manufacturers in the world. Only two vaccine manufacturers are
in this country, and at the same time, the National Institutes of
Health is embarking upon a new initiatives to develop a vaccine for
botulinum toxin, a major initiative on their part. If we vote to strike
these provisions, we are putting at risk our manufacturing base which
we absolutely must have to be a prepared Nation. Vaccine development
cannot be ramped up quickly because manufacturing is a highly complex
process. These important provisions further stabilize the vaccine
supply system, and thus, are key to our ability to establish
appropriate homeland security.
Those are the three claims we have heard over the last 2 to 3 days. I
encourage my colleagues to look at earlier statements on what the
vaccine provisions are specifically.
I urge my colleagues to vote against the Lieberman amendment tomorrow
and to move forward on this important homeland security bill.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. How much time remains of the 25 minutes identified by
the Senator from West Virginia?
The PRESIDING OFFICER. The Senator from West Virginia has 10 minutes.
Mr. SPECTER. I thank the Chair.
Nomination of Dennis Shedd
Madam President, I will briefly comment on two matters: First on the
confirmation of Judge Shedd, and second on the pending Lieberman
amendment to the homeland security bill.
I support confirmation of Judge Shedd for a number of reasons. First,
he has been found well qualified by the American Bar Association, the
highest rating which can be given. I knew Judge Shedd when he served as
chief counsel, chief of staff, to the Judiciary Committee from 1981,
when I came to the Senate and started to serve on the Judiciary
Committee, until 1988. I believe he is a fair, equitable, and competent
jurist. I know Judge Shedd's record on the U.S. district court where he
has served since 1991. I asked Judge Shedd some questions, and he
responded in some detail.
[[Page S11282]]
I ask unanimous consent that Judge Shedd's written response be
included at the conclusion of my comments.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. SPECTER. In those written comments he pointed out that in civil
demonstration cases he has been fair and equitable: One bench trial
verdict of over $2 million and another over $1 million; he has employed
both female and African-American law clerks; and, in general, set forth
the specifics to show that he has not been discriminatory in his
judicial practices. These comments have been checked out by staff and
found to be accurate.
Judge Shedd has been criticized for circumventing the authority of
Congress under the commerce clause in a very celebrated case, United
States v. Brown, involving the Gun-free School Zones Act. Judge Shedd
found that it was constitutional and was later reversed by the Supreme
Court of the United States under United States v. Lopez. In brief, it
is a complicated subject, but Lopez, the Supreme Court decision of
1995, curtailed the authority of Congress under the commerce clause.
Judge Shedd has been said to have limited what Congress can do on
States' rights. Here is a case where he found congressional authority.
It was a close case. He was reversed--or later the Supreme Court
decided he was in error. But I think it illustrates the point that
Judge Shedd did give latitude for congressional enactments.
It is my hope that Judge Shedd will not be part of the so-called
payback theory. I did not like what happened to President Clinton's
nominations when Republicans controlled the Senate. As the Record will
show, I supported Judge Roger Gregory for the Fourth Circuit. We have
had some of the payback consideration on the Fifth Circuit I think
fairly stated with Judge Pickering, and I hope that will not occur with
Judge Shedd. It is my hope we will soon have a protocol which will take
politicization out of judicial selections when there is a Democratic
President, such as President Clinton, with a Republican Senate. Now the
shoe is on the other foot, and we have a Republican President,
President Bush, and a Senate controlled by the Democrats. We ought to
move away from that.
As the Record will show, I have supported qualified nominees
submitted by President Clinton and was pleased to note that there was
reciprocity. All 11 of Pennsylvania's district court judges have been
confirmed, as has Judge Brooks Smith, the one contested circuit judge.
Exhibit 1
Response of Judge Dennis Shedd to Senator Specter's Question
During my June 27, 2002, hearing before the Senate
Judiciary Committee, Senator Specter asked me if I believed
that the NAACP's opposition to my nomination was fair. I
responded that I do not think it is fair. Senator Specter
then asked me to provide a written answer explaining my
position. I trust that this will be responsive to the
Senator's request.
In lodging its opposition to me, as I understand it, the
NAACP has focused on a relatively small number of cases--
primarily employment discrimination cases--in which the
plaintiffs did not prevail. Relying on these cases, and
ignoring my complete record, the NAACP has attempted to
create the impression that I do not treat civil rights
plaintiffs fairly. However, this is a complete
mischaracterization of my record as a district judge, and it
is based on a very limited--and misleadingly selective--
sampling of my casework. My complete record as a district
judge demonstrates that the charge is not accurate.
I do not wish to belabor this response with a case-buy-case
rebuttal of the employment cases for which, to my knowledge,
I have been criticized. Of course, people are entitled to
disagree bout the outcome of a particular case depending on
their viewpoint. However, as an initial matter, I would note
that I have not been made aware of any criticism which
suggests that my decisions in these cases are legally
incorrect or improper. I do not claim to have been correct on
every issue that has come before me, but I can tell you that
I have conscientiously endeavored to be correct.
Moreover, contrary to the misimpression that the NAACP has
attempted to create, I have on many occasions denied
defendants' motions for summary judgment (or to dismiss) in
employment cases. I have done so when a magistrate judge has
recommended that I grant the motion, and I have done so over
the defendant's vigorous objection. Typically, once a
plaintiff defeats a summary judgment motion in this type of
case, the case settles, and that has happened often in my
cases. However, I have also had employment cases, in which I
denied the defendant's motion, thereafter process to verdict.
Further, sitting by designation with the Fourth Circuit, I
joined with Judge Sam Ervin in reversing a summary judgment
and remanding a case in order to allow the employment
discrimination plaintiffs to proceed to trial. I believe
these examples alone refute the NAACP's criticism of me.
As I am sure you are aware, an individual's civil rights
may be implicated in federal litigation in many contexts
outside the realm of employment discrimination. I have been
presented with countless cases of various types in which an
individual's civil rights were implicated, including (but not
limited to) criminal cases, voting rights cases, habeas
corpus cases, and cases involving allegations of governmental
misconduct of some type. My complete record in these types of
cases further reflects the fact that I do not have any type
of anti-civil rights bias.
For example, I have presided over trials in which civil
rights plaintiffs have won jury verdicts or gained a
settlement at trial. I have granted relief in at least five
habeas corpus cases. I ruled in favor of the plaintiff and
upheld the one-person/one-vote principle in a case in which
the plaintiff challenged the method of electing members to a
local school board, and I have handled a number of Voting
Rights Act cases in which (to my recollection) the plaintiffs
in each case succeeded on their claim of a violation.
I have always endeavored to be vigilant in ensuring the
protection of civil rights in criminal cases as well. I have,
for example, granted judgment of acquittal on numerous
occasions to defendants where I believed, as a matter of law,
that the government failed to meet its burden of proof. I
have also disallowed the government from using evidence at
trial when I thought that its use would improperly
disadvantage the defendant. It is also my practice during
trial to ensure very specifically that defendants are aware
of their constitutional right to testify or not to testify.
Similarly, it is my practice to ensure that witnesses who I
believe may incriminate themselves by their testimony are
aware of their rights, and I have appointed counsel in some
instances to advise these witnesses before they testify.
I would also note that my overall record in civil cases
demonstrates that I do not have any bias against plaintiffs.
I have, for example, awarded a bench trial verdict of over
$2,000,000 in one case, and over $1,000,000 in another case.
In addition, I have presided over jury trials which led to
substantial verdicts in a plaintiff's favor, and I have on at
least one occasion directed a verdict of liability in a
plaintiff's favor. I have also raised, sua sponte, the
propriety of the removal of cases from state court, thereby
setting in motion the procedure by which the plaintiffs could
return to their chosen forum (i.e., state court). I have also
assisted parties in civil cases in reaching a settlement, and
often this has occurred where it appeared as though the
plaintiff would otherwise gain no recovery.
Apart from my case record, I believe that my commitment to
ensuring fairness for all persons is exhibited by my conduct
in other matters. For example, I have employed female and
African-American law clerks. I have also actively recruited
and support minority and female candidates for magistrate
judgeships.
Now in my twelfth year on the district court. I have
handled thousands of civil and criminal cases in which I have
issued countless rulings, all of which are public record.
During this time, my concerted effort has been to ensure that
all litigants are treated fairly according to the law. I do
not approach any case, or any litigant, with any type of
bias, and I do not decide issues before me on anything other
than the pertinent law. I am gratified that I have earned a
reputation among lawyers in this district (as reported in the
Almanac of the Federal Judiciary) for being fair and
impartial. I believe my impartiality is reflected by the low
number of cases in which I have been reversed, as one could
reasonably expect that any type of bias on the part of a
district judge would manifest itself over time in appellate
response to judge's work.
I would like to point out an incident that occurred earlier
this year, as I believe it is akin to the current accusations
against me. On May 3, an article appeared in the Washington
Post stating, in essence, that I was insensitive to disabled
persons because I would not allow a blind woman to be present
in the courtroom during a trial over which I presided. That
article was printed without anyone from the newspaper
contacting me to verify the allegation, which I readily could
have refuted. However, after the article ran, I was able to
obtain a transcript of the trail in question, and it very
clearly confirmed what I already knew; I had made special
efforts to accommodate the woman in question, and I only
ordered her to leave the courtroom (as I was required to do
by the Federal Rules of Evidence) after the parties
identified her as a potential witness and requested that all
trial witnesses be sequestered. In other words, the woman was
required to leave the courtroom because she was a potential
witness, not because she was blind. Fortunately, when the
actual facts came to light, the newspaper ran another story
setting the record straight.
I mention this story not as a complaint, but as an example
of how a perfectly legitimate set of facts can easily be
misused to
[[Page S11283]]
portray a false impression. I believer that this has occurred
in this instance, and I am very appreciative to the Committee
for providing me the opportunity to set the record straight
about my judicial career.
In closing, I would add a personal comment. In my life, I
have seen first hand the unfair and unequal treatment of
disadvantaged people in society. That is one reason I have
always cared so deeply for doing my best to treat all people
fairly and with respect. Those who know me would emphatically
agree that I have an abiding concern for fairness. I believe
my record as a judge underscores my dedication to his
principle and I will continue to show fairness and respect to
all in my judicial actions, as well as in my public and
private life.
Mr. SPECTER. How much time remains, Madam President, of the 10
minutes?
The PRESIDING OFFICER. The Senator has 5 minutes 50 seconds.
Homeland Security
Mr. SPECTER. Madam President, we face a very difficult situation on
homeland security in a number of respects. I spoke last week about my
concern that there was not sufficient authority in the Secretary to
direct the intelligence agencies and my concern about the labor-
management provisions. I did not offer amendments because when the
House of Representatives has, in effect, gone home, if we pass
amendments, there will have to be a conference and the bill will be
brought down.
I believe it is vitally important that homeland security be passed,
that we move ahead to put all the so-called dots on the screen, as I
spoke at length on last week. Had all the dots been on the screen, I
think 9/11 might well have been prevented. I do not accept the
assertion of CIA Director George Tenet that another 9/11 is inevitable.
The House-passed bill from last Wednesday, which has come over, is a
voluminous bill, hundreds of pages long. As we start to consider it,
there are seven provisions now which Senator Lieberman has sought to
strike: Provisions on childhood vaccines; protections for qualified
antiterrorism technologies; the university of homeland security
advancement, which seems to pinpoint Texas A&M; the extended duration
of the advisory committee; the exemption for FACA; the airport security
liability protections; the provision on contracting with offshore
entities, which Senator Wellstone had added, to prohibit the Secretary
from contracting with inverted domestic corporations.
All of these provisions, I think, require very extensive
consideration and analysis. I am very distressed to see them added on
the bill, with no hearings and no chance for consideration. Now we are
faced with a homeland security bill which is very heavily weighted with
provisions which are undesirable. It makes it difficult.
Candidly, I am not sure how I would vote on all of these provisions
if they were presented individually. I do think that on a matter of
this importance, it would have been orderly procedure to have these
provisions submitted for hearings and consideration. It may well be
that by the time we add up all of the provisions, the disadvantages may
well outweigh the advantages of this bill on homeland security.
Ultimately, the need to have homeland security, to have a Secretary
who will be able to put all of the investigative agencies under one
umbrella, is so important that we will have to swallow hard. This is
really a case where it is a matter of take it or leave it on a bill
which is undesirable in many aspects, but the importance of protecting
America from terrorist attacks outweighs so many of these provisions
which are highly undesirable.
There is an old expression about not wanting to see either
legislation or sausage made. This homeland security bill is problemsome
in so many respects that it is giving sausage a bad name. It goes very
far. However, it is so important to have a Secretary with authority on
homeland security to act to protect against terrorism. This bill is
very weighty and has undesirable aspects, and there are amendments
which would have improved the bill tremendously.
I lodge these objections that the procedural posture really of
legislative blackmail, with the House having gone home, a take-it-or-
leave-it proposition, puts this Senator in a very difficult position.
Ultimately, I think the necessity for homeland security outweighs these
disadvantages, but barely.
I again thank my colleague from West Virginia for arranging this
sequence, and I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. BYRD. I yield whatever time he may wish to consume to the
distinguished Senator from Vermont, Mr. Leahy, with my retaining the
floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Vermont.
Mr. LEAHY. Madam President, I thank the distinguished senior Senator
from West Virginia. He has been my friend for nearly 30 years, and his
constant courtesy is one of the reasons for it.
Mr. BYRD. And will be for the next 30.
Mr. LEAHY. I thank the Senator.
Tribute to Emmylou Harris
Madam President, last week, at the Birchmere Music Hall in
Alexandria, VA, there was a concert that honored one of the most
distinguished songwriters and singers I know, Emmylou Harris. Emmylou
Harris was honored because of the work she has done to aid victims of
landmines and to help stop the scourge of landmines throughout the
world. In honoring her, some of the best artists of this country came
and sang for her. They honored both her work and, of course, they
honored her amazing talent.
My wife Marcelle and I, and our daughter Alicia, and Emmylou's
daughter, mother, and friends were there to hear this. She received the
award from the Vietnam Veterans of America Foundation, the Patrick
Leahy Humanitarian Award. I can't think of anything that gave me more
pleasure than to give it to her.
I ask unanimous consent that an article from Rolling Stone magazine
of November 13, 2002, speaking of Emmylou being honored in Washington,
DC, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[Rolling Stone, Nov. 13, 2002]
Emmylou Honored in D.C.
(By Lynne Margolis)
musicians, politicians praise harris for landmine charity work
When Senator Patrick J. Leahy presented singer-songwriter
Emmylou Harris with his namesake humanitarian award Tuesday
night at the Birchmere Music Hall in Alexandria, Virginia, he
said her work on behalf of landmine victims might have
touched more lives--in more important ways--than her vast
body of beloved music.
Harris, who received the award from the Vietnam Veterans of
America Foundation for her creation and continued support of
the Concerts for a Landmine Free World benefits, said it
merely represented how blessed she is to be able ``to give
something back'' in exchange for a career that brings her so
much joy that ``you really can't call it work.''
Harris seemed even more humbled than usual by the shower of
accolades from Leahy, VVAF president Bobby Muller and some of
her closest musical friends including Steve Earle, Buddy and
Julie Miller, Patty Griffin, Nanci Griffith, Guy Clark,
Rodney Crowell, John Prine and Jamie O'Hara, all of whom
performed at the benefit concert. Pal Mary Chapin Carpenter
was unable to attend because of back problems, but sent
flowers that adorned the stage of the intimate, 500-seat
venue. Most of the artists had participated in earlier
Landmine Free World concert tours and, like Harris, have
visited countries devastated by landmines that still remain
years after military conflicts have ended. Leahy has
spearheaded efforts for a global landmine ban; VVAF aids
civilian victims of those conflicts.
During a night that focused on the purest of musical
elements--lyrics, wooden guitars, and frequently, Harris'
angelic soprano soaring in harmony with her equally talented
friends--she gave as much praise to her fellow activists and
performers as they did to her.
``Really what I have done has been given the opportunity to
reflect, or deflect, some of the light that shines on me
because of the nature of my work, and shine it on these
people, these causes, these situations,'' she said backstage.
``I'm so, so grateful for the opportunity to be able to do
that. Because that's the only way I know to be really
thankful for my blessings. This is a really wonderful moment
for me. And I'm so grateful to all my fantastic friends who
made it possible.''
The night contained a few overtly political references or
anti-war proselytizing, though Prine performed ``Your Flag
Decal Won't Get You Into Heaven'' and his 1970 tearjerker
gem, ``Hello in There,'' with its reference to parents who
lost a son in Korea. Harris noted that her father was a World
War II veteran and Korean War POW, and that the show was
occurring one day after Veterans Day as well as the twentieth
anniversary of the Vietnam Veterans Memorial dedication. She
talked about playing at the memorial's fifteenth
[[Page S11284]]
anniversary five years ago and how listening to O'Hara sing
his ``50,000 Names'' was ``the most cathartic experience I've
ever had in my career.'' As he performed the tune again,
sniffles could be heard in the audience. Later, at Harris'
request, Earle did ``a song about faith,'' the title track
from his new album, Jerusalem.
Earlier, Leahy cracked that everybody in Washington was in
the room except U.S. Attorney General John Ashcroft, who
``listens to Steve Earle all the time.'' The outspoken Earle
has made his anti-war and anti-death penalty views well known
in Washington.
Harris noted that ``Jerusalem'' provided a necessary note
of hope, adding ``we're in a very difficult time right now.''
Backstage she said, ``I don't know whether [war is]
inevitable or not. Certainly, the world is gonna change in
some way pretty soon. I can't see the status quo staying the
same.''
But this was a night for positivity and humor, despite the
profusion of sad love songs and achingly beautiful hormonies
delivered on tunes such as Harris' ``Prayer in Open D''
(performed by the Millers as ``Prayer in D'' because, Buddy
explained, ``I can't play an open D'').
For the encore, Harris brought out John Starling and Mike
Auldrige, original members of the D.C.-area bluegrass band
the Seldom Scene, for the Louvin Brothers' classic ``Satan's
Jeweled Crown,'' which she recorded on Elite Hotel.
The evening was probably best represented by comments
delivered by Leahy. ``There are people in Southeast Asia, in
Africa, in Central America, around the world, who are going
to be helped by what you have done,'' he said. ``They will
never know you, they'll never hear your songs, they'll never
know your fame. They'll never be able to do anything to help
you, but because you've helped them, their lives are
immeasurably better. And how many people in life can say
that?''
Mr. LEAHY. I yield the floor, and I thank the Senator from West
Virginia.
The PRESIDING OFFICER (Mr. Dayton). The Senator from West Virginia.
Mr. BYRD. The distinguished Senator from Vermont is welcome, and I
congratulate him.
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