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Statement
Of Chairman Patrick Leahy
On The Nomination Of Judge Dennis Shedd
Executive Meeting
Committee On The Judiciary
Nov. 14, 2002
I am glad to
welcome everyone back for what likely will be our final executive
meeting of the 107th Congress.
When we convene
again next year my good friend from
Utah
and I will be trading the gavel once again. I think the gavel is
beginning to get a little dizzy. Orrin, I look forward to working
with you and all of the members of the Committee as we carry on with
our responsibilities in the next session. The Senate sends more than
our fair share of controversies to this committee for handling, and
that means it is never dull on the Judiciary Committee.
Sixteen months is
not a long time, but we have used our time in the majority well. The
terrorist attacks of September 11, the anthrax attacks, and the
gearing up for the extended battle against terrorism all occurred
during our watch and dominated much of our agenda. This committee
worked long and hard in helping to shape and sharpen the tools against
terrorism. I also am proud of this committee’s role in seeking to
strike the right balance between the new powers given to the agencies
of our government and the constitutional freedoms we cherish as
Americans.
During these 16
months, Senator Hatch and I and all the members of the Committee also
joined forces with those on the counterpart committee in the House to
enact the first new charter for the Justice Department in two
decades. We launched the first comprehensive oversight of the FBI in
just as long and worked in partnership with Director Mueller and with
Attorney General Ashcroft to put in place several significant FBI
reforms. We devoted enormous effort and time in working to enact and
then to oversee the wide range of new anti-terrorism laws included in
the USA PATRIOT Act. I look forward to what I hope will be the
continuation of our close oversight of these laws, and of the FBI, to
make the FBI as effective in the war on terrorism as the nation needs
it to be.
We also worked
hard to restore steadiness to the judicial nominations process, and
our committee was able to achieve more on judicial nominations in 16
months than had been achieved in the previous 30 months. We voted on
100 judicial nominees and approved 98 of them – a solid record that
will change again with the votes we cast today.
Our list of
firsts includes the first nominee confirmed to the Sixth Circuit in
almost five years, even though three of President Clinton’s nominees
to that court never got hearings and votes, and the first confirmation
to the Fifth Circuit in six years.
In the next
session, I expect there will continue to be disagreements over
nominees who have been chosen primarily for their ideology and not for
their independence.
We have taken
good-faith steps to speed the confirmation process, and I regret that
the White House has not reciprocated. The nomination process begins
with the President, and he – not the Senate or any member of the
Senate – can do more than anyone else to repair the damage of earlier
years. Earlier Presidents have consulted with Senators of both
parties about nominees to their home states, and about problems that
arise in the Circuit Courts. By simply doing the same, President Bush
can help unite instead of divide the American people and the Senate in
his choices for the courts. No single step would help the nomination
process more, and no single step is more urgently needed.
The Senate has
clearly shown that consensus nominees are acted on promptly. The
Senate does not need arbitrary deadlines. What we need is cooperation
from the White House in choosing more consensus nominees.
Controversial nominations to lifetime appointments, once confirmed,
cannot be undone, and the Senate’s consideration should reflect that.
The Shedd Nomination
Today we will consider the nomination
of Dennis Shedd to the Fourth Circuit Court of Appeals from South
Carolina. Judge Shedd is supported by our distinguished former
chairman, Senator Thurmond, and was accorded a hearing in June. As I
noted before, during, and after our last meeting, I had indicated to
Senator Thurmond that I intended to bring this matter to a vote before
the Committee.
My concern at our
last meeting, just before the recess, was that we had very little time
in which to proceed and discussion of this controversial nomination at
that point threatened to prevent action on 17 other judicial
nominees. As it was, we also did not have the opportunity to complete
a number of matters that we will attempt to take up again today – for
example, the amendment to the American Legion charter.
The first hearing
the Committee held last year on a judicial nominee was for an earlier
Fourth Circuit nominee, Judge Roger Gregory, initially nominated by
President Clinton, who became the first judge confirmed to the Fourth
Circuit in several years and the first African American confirmed to
the Fourth Circuit in our history, when this Committee and then 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. After today this Committee
will have voted on 19 circuit court nominees in 16 months. By the end
of this session the Senate, which has already confirmed 80 new judges,
may have the opportunity to confirm as many as 100. This compares
with the average of 38 judges and 7 to the circuit courts during the
preceding years in which the roles of the parties were reversed. The
partisan rhetoric about this Committee having blockaded President
Bush’s judicial nominations and having treated nominees unfairly is
belied by the facts.
Judge Shedd's
nomination is not without its controversy. Issues in his judicial
record raised cause for concern. While considering the information
gathered in the hearing process, I placed Judge Shedd's nomination on
an agenda of the Committee in September. That was part of my effort
to show Senator Thurmond courtesy and to signal that I expected this
Committee would be proceeding to consider this nomination before the
year was out. As is their right, several Senators asked that his
nomination be held over.
On October 7,
when I had hoped to be able to list his name for consideration again,
there promised to be debate so lengthy that we would not be able to
consider the 17 other judicial nominees on the agenda, or the many
legislative matters on which we were trying to make progress before
the election recess. As I had informed Senator Thurmond and other
Senators before that markup, it was for that reason that I did not
list Judge Shedd's nomination on the agenda for the October 8th
markup, but explained that I hoped we would be able to consider it at
our next opportunity. I scheduled today’s meeting to accomplish
that.
The Committee has
received hundreds of letters from individuals and organizations, both
in and out of South Carolina, expressing concerns about elevating
Judge Shedd. Those letters raise serious issues. What I heard about
the nominee from citizens of South Carolina and from others around the
country was troubling.
For example, we
received a letter from the Black Leadership Forum asking for more time
to consider the nomination. It was signed by many well-respected
African-American leaders, including the Forum's chairman, Dr. Joseph
Lowery, and more than a dozen other nationally known figures.
We received a
letter from the Mexican American Legal Defense and Educational Fund,
citing the interests of the many Latinos living in the Fourth Circuit,
and expressing opposition to Judge Shedd.
State legislators
from Delaware, North Carolina,
South Carolina and Maryland,
have written us with their misgivings about the elevation of Judge
Shedd. And hundreds, probably thousands, of letters from South
Carolina citizens arrived in my office, urging a closer look at Judge
Shedd's nomination for the Fourth Circuit.
I have taken that
closer look, and I have serious reservations about this nomination.
Nonetheless, I am proceeding forward with this nomination and with
Committee consideration.
Judge Shedd’s
record shows why many feel he has a reputation for assisting the
defense in civil cases and for ruling for the defense in employment
and civil rights cases. His holding in a key federalism case,
Condon v. Reno, shows that his view of the constitutional
allocation of powers between the States and the federal government is
not shared even by the conservative, activist Supreme Court that is
busily rewriting the law in this fundamental area. His actions in a
case involving serious prosecutorial and police misconduct raise
serious questions about his fairness in criminal matters.
Every litigant,
every defendant, every person who comes before a judge on the federal
courts must be assured that a judge will give a fair and unbiased
hearing to the case at hand. I regret that the record compiled by
Judge Dennis Shedd does not convince me that such fairness is assured
in his courtroom.
Assisting
the Defense
Let me go through
these concerns one by one. First, Judge Shedd has a reputation for
assisting the defense in civil cases
B
raising issues sua sponte, ordering defendants to make motions
for summary judgment, resolving issues before they are raised or even
fully briefed. Taken as a whole they show a pattern of a judge
injecting himself into litigation, particularly in the shoes of the
defense.
McCarter v.
RHNB,
CA No. 0:93-3327-19
In this case alleging gender discrimination, Judge Shedd granted
summary judgment on grounds not raised by the defendant in its motion.
Shults v.
Dennys Restaurant, CA No.
9:95-475-19AJ
In this claim of employment discrimination under the
ADA,
Judge Shedd raised an issue sua sponte “for possible resolution
by summary judgment.” Again, deciding how best the defense should
execute its litigation strategy, he noted that three of the defenses
asserted are potentially dispositive of certain claims, and asserted
that, “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.”
Lowery v.
Seamless Sensations, CA No.
0:96-3744-19BD
Here, in a case where an African-American female alleged claims under
Title VII for employment discrimination on the basis of race, Judge
Shedd ordered the defendant to file a motion to dismiss, which he
later granted.
Coker v.
Wal-Mart, CA No.
3:97-2240-19
Here the judge expressed his desire to rid himself of a case by sua
sponte remand back to State court, but asks defendants to file a
brief addressing whether or not he had the power to do so.
Gilmore v.
Ford Motor Company, CA No.
3:98-1968-19
In this products liability case, Judge Shedd outlined four factors he
must consider before dismissing an action for failure to prosecute,
finding that the defendants had not set forth evidence addressing
these four factors, but went on to “glean certain pertinent
information from the record.” Again he put himself quite aggressively
into the defendants=
shoes in order to dismiss a case.
Simmons v.
Coastal Contractors, Inc.,
CA No. 9:94-2486-19
In this case, where both parties were pro se, Judge Shedd oddly
noted that, “this civil action . . . is before the Court sua sponte.”
While he must have meant that the motion itself was before him sua
sponte, he brought up deficiencies in the plaintiff=s
complaint and ordered that an amended complaint be filed or the action
would be dismissed on his own motion.
Tessman v.
Island Ford-Lincoln-Mercury,
CA No. 9:95-3087-19AJ
In another substitution of his strategic litigation judgment for that
of the defendants, Judge Shedd here threatened to dismiss the
plaintiff=s
Title VII action sua sponte 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 let the defense move for
dismissal, he would do so on his own.
Smith v. Beck,
CA No. 3:96-258-19
In this case brought under 42 U.S.C. sec. 1983, Judge Shedd acted
sua sponte, questioning whether the plaintiffs=
allegations that the defendant=s
refusal to allow them admittance to a bar without a male escort were
sufficient to sustain the claim.
Employment
Cases
Of the 11 cases
relating to employment discrimination available in the public record,
Judge Shedd held for the employer in every one, including one case
where he sat by designation on the Fourth Circuit. Judge Shedd grants
summary judgment after summary judgment and finds for the employer in
a wide range of employment discrimination claims. Of the 54 fair
employment cases included in the unpublished opinions he produced,
more than 80 percent of them grant summary judgment in full to the
defendants. This is simply not a fair record, and strongly indicates
that plaintiffs are not receiving fair hearings.
Federalism
Cases
Condon v. Reno
In a 1997 case challenging
the constitutionality of the Driver=s
Privacy Protection Act (DPPA), Judge Shedd made a federalism ruling
that went beyond even where the Supreme Court has gone to date. In a
9-0 reversal of Judge Shedd=s
ruling, the Supreme Court made clear that the judge had gone too far.
In Condon v.
Reno, 972 F. Supp. 977 (D.S.C. 1997), rev=d
sub nom, Reno v. Condon, 528 U.S. 141 (2000).
Judge Shedd ruled on the constitutionality of the DPPA, which
essentially prohibited states from selling and sharing personal
information gleaned from its responsibilities in issuing drivers=
licenses. He held that the DPPA violated the Tenth Amendment as
interpreted by the Supreme Court in New York v. United States
and Printz v. United States because, “Congress has commanded
the States to implement federal policy by requiring them to regulate
the dissemination and use of these records.” [Id.
at 985.] Three years later, writing for a unanimous Court, Chief
Justice Rehnquist explained that, to the contrary, neither case
applied. 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,” it was “consistent with the constitutional principles
enunciated in New York and Printz.” [Id. at 151 (2000).]
Crosby v.
South Carolina Department of Health and Environmental Control,
CA No. 3:97-3588-19BD
In this case, an employment discrimination action under the ADA and
the Family and Medical Leave Act, Judge Shedd agreed with a magistrate=s
report and recommendation that found the FMLA unconstitutional on the
ground that it was not properly enacted under Congress=s
enforcement power under section 5 of the 14th Amendment.
This case is striking both because it is the second time Judge Shedd
ruled on such an important federalism case, but also because his order
adopting the magistrate=s
report is so brief and lacking in any analysis of his own, and because
he failed to submit this case for publication. A judge deserving of
elevation to the circuit court should show a higher level of
commitment to explaining his view of the law for those who must rely
on it, and for the Supreme Court which will review it.
Criminal
Justice – The Grice/Quattlebaum Case
Judge Shedd
handled several cases 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 sheriff=s
deputies and the county prosecutor who subsequently handled the case.
The defendant was convicted and sentenced to death, but because of the
videotaping, his sentence was reversed by the Supreme Court of South
Carolina. In its opinion, the Court used strong language to condemn
the failure to disqualify the local prosecutor=s
office, citing a prosecutor=s,
“special responsibilities to do justice,” saying it would not,
“tolerate deliberate prosecutorial misconduct which threatens rights
fundamental to liberty and justice.” South Carolina v. Quattlebaum,
338 S.E. 2d 105 (S.Car. 2000).
Federal
prosecutions relating to this taping were brought in Judge Shedd=s
courtroom. Both the prosecutor, Fran Humphries, and the defense
attorney, Jack Duncan, were brought before a federal grand jury
investigating constitutional violations. Mr. Duncan testified that he
had not given a copy of the tape to a television reporter, while Mr.
Humphries testified that he had not immediately known the taping was
taking place, and each was charged with perjury based on those
statements. Mr. Duncan, the defense attorney, was found guilty and
sentenced to four months in prison, while Judge Shedd dismissed the
charges against Mr. Humphries because he said the materiality of his
false statements had not been proved (although witnesses testified
that Humphries had indeed been aware of the taping all along). Given
the facts of the case, it seems more than curious that the attorney,
who could be perceived as the victim of the constitutional violation,
was treated much more harshly than the perpetrator. This decision
shows disregard for the rights of Americans who, no matter what they
have been accused of, should be able to expect not to be videotaped
while meeting with their attorneys. That the penalties were so
grossly disproportionate calls into question Judge Shedd's ability to
be fair in criminal cases.
Conclusion
I remain
concerned about the record of this nominee as a Federal District Judge
and how he will exercise the authority of a circuit court judge.
Having reviewed his record, I share some of the same concerns about
his fairness that we have heard expressed from South Carolina and from
throughout the Fourth Circuit.
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