On July 31, 2002, the US Senate confirmed Judge D. Brooks Smith to the 3rd Circuit Court of Appeals (covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands).

Judge Smith's record indicates an insensitivity to women's issues and civil rights laws, as well as troubling ethical lapses.

Who is Judge D. Brooks Smith?

  • Judge Smith was born in 1951 in Altoona, PA. He received a BA degree in 1973 from Franklin and Marshall College and a JD in 1976 from Dickinson School of Law.
  • From 1976-1979, Judge Smith was an associate in the Altoona law firm of Jubelier, Carothers, Krier, & Halpern. In 1980 he became managing partner, serving until 1984.
  • Judge Smith also served part-time as Assistant District Attorney from 1977 to 1979, and part-time as District Attorney from 1983-1984. From 1984-1988, he was a judge in the Blair County Court of Common Pleas.
  • Nominated by President Ronald Reagan, Judge Smith has served as a federal district court judge in the US District Court for the Western District of Pennsylvania since 1988.
      Why does NCJW oppose Judge Smith’s nomination?

  • Judge Smith's record indicates an insensitivity to women's issues and civil rights laws, as well as troubling ethical lapses.
  • In a 1993 speech to a meeting of the Pittsburgh chapter of the Federalist Society (a conservative legal group), Judge Smith declared that the Violence against Women Act was unconstitutional, because violence against women as an issue lacked "substantial national consequences." Despite overwhelming evidence to the contrary presented in congressional hearings, Judge Smith asserted that state and local governments had "proven neither unwilling nor unable to address violence against women." The Washington Post revealed the danger in such reasoning in an editorial (Feb. 26, 2002), which noted the Pittsburgh speech offered a "remarkably constricted vision of federal power" that, if followed to its logical conclusion, would appear to overturn most modern civil rights and environmental legislation.
  • Judge Smith has ruled against affirmative action remedies designed to overcome past discrimination against women. In Quirin v. City of Pittsburgh (1992), Judge Smith ruled in favor of a male applicant for a firefighter position who challenged an affirmative action plan adopted to remedy the effect of past discrimination against women.
  • Judge Smith ruled against a male teacher seeking equal treatment under a personnel policy that allowed women, but not men, to take a year’s leave for "reasons related to childbearing or childrearing." The US Court of Appeals for the 3rd Circuit (the court on which he aspires to sit) reversed his decision, saying the policy "as a matter of law" violated Title VII of the 1964 Civil Rights Act barring discrimination in employment on account of sex. (Schaefer vs. Board of Public Education ... of Pittsburgh, 1990.)
  • In the 1988 hearing on his nomination as a federal district court judge, Judge Smith told the Senate Judiciary Committee he would resign within two years from the Spruce Creek Rod and Gun Club if it did not end its policy barring women from membership. Membership by federal judges in such discriminatory clubs violates the Code of Conduct for United States Judges. In 1990, the Senate Judiciary Committee resolved that federal judges should not belong to discriminatory clubs because membership "may be viewed as tacit endorsement" of discrimination that "conflicts with the appearance of impartiality." Such clubs also provide professional and career contacts: Judge Smith was a fishing partner at the club of the late Senator John Heinz (R-PA), who also supported him for the federal bench. Judge Smith did not resign within two years as promised; in fact, he did not resign until 1999 when the vacancy on the 3rd Circuit first occurred and he was presumably interested in filling it. Thus his failure to abide by the judicial code of ethics was compounded by his failure to keep an explicit promise made to the US Senate.
  • Judge Smith has twice failed to recuse himself on his own initiative in cases where he was to rule on matters in which he had a financial interest. In one case he eventually stepped down when attorneys in the case discovered his interest and asked him not to try the case. In a later case, he continued to preside even though his wife’s employer was involved -- an employer in which he too had substantial financial interests.

Who else opposes Judge Smith?

ADA Watch Action Fund
Alliance for Justice
Community Rights Counsel
Feminist Majority
National Employment Law Association
National Organization for Women
NOW Legal Defense and Education Fund
National Women’s Law Center
People for the American Way
(list in progress)

Additional Information:

August 1, 2002
NCJW Disappointed by Confirmation of Judge D. Brooks Smith

May 23, 2002
NCJW Disappointed by Committee Vote on Judge D. Brooks Smith

May 8, 2002
NCJW National President Urges Senator Leahy to Oppose Confirmation of Judge D. Brooks Smith