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Statement Of Chairman
Patrick Leahy
On The Nomination Of Judge Dennis Shedd
To The U.S. Court Of Appeals For The Sixth Circuit
November 18, 2002
Today the Senate considers 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, with nine
Democratic Senators voting against his confirmation, including me. As
I noted before, I had indicated to Senator Thurmond that I intended to
bring this matter to a vote by the Committee this year. My concern at
the Committee’s last meeting before the election was that we had very
little time to debate of this controversial nomination and that
threatened to prevent a Committee vote on 17 other judicial nominees.
Those 17 district
court nominees and two 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 nominations despite unparalleled personal attacks by Republicans
on me as chairman. 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. This compares most favorably to the 38
judicial confirmations averaged per year during the six and one-half
years when the Republican majority was in control of the Senate. In
fact, in the entire 1996 session over the course of an entire year,
the Republican majority allowed only 17 district court judges to be
confirmed all year and would not confirm a single circuit court
nominee--not one. This should put our historic demonstration of
bipartisanship toward this President’s judicial nominees in
perspective. In fact, the Senate has already confirmed 16 of his
circuit court nominees. This is in sharp contrast to the fact that
Republicans allowed only seven circuit court nominees to be confirmed
per year on average during their prior control of the Senate.
The Fourth
Circuit was one of many circuits affected by Republican obstruction of
President Clinton’s judicial nominees. In fact, more than half of
President Clinton’s circuit court nominees in the 106th
Congress were defeated through such obstruction. More than half. In
the Fourth Circuit, for example, seven of President Clinton’s nominees
to that circuit were never given a hearing or a vote in Committee or
on the floor. For example, James Beaty, one of these Fourth Circuit
nominees of President Clinton, did not get a hearing or a vote in
1995, 1996, 1997, or 1998. Another Fourth Circuit nominee, Judge Rich
Leonard, did not get a hearing or a vote in 1995 or 1996. Another
Fourth Circuit nominee, James Wynn did not get a hearing or a vote in
1999, 2000, or early 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 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 American 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. 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. It is quite
controversial. 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 last week’s mark-up 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. [Insert list of letters into the record.] Those letters
raise serious issues. What I heard about the nominee from citizens of
South Carolina and from others around the country was troubling.
[Insert sample of South Carolina letters into the record.] We have
also heard from our colleagues in the Congressional Black Caucus who
oppose the confirmation of Judge Shedd. [Insert.]
We also 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.
[Insert.]
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. [Insert.] We also received
letters from numerous others in the Fourth Circuit, including a number
of law professors. [Insert.]
State legislators
from Delaware, North Carolina,
South Carolina and Maryland,
have written us with their misgivings about the elevation of Judge
Shedd. [Insert.] 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 or opposing his
confirmation.
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. His record
as a whole raises serious concerns about whether he should be elevated
to one step below the Supreme Court and entrusted with deciding
appeals.
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. The National
Employment Lawyers Association has also reviewed Judge Shedd’s public
record and sent a letter to the Committee opposing his confirmation.
[Insert.]
Federalism
Cases
Condon v. Reno,
972 F. Supp. 977 (D.S.C. 1997), rev=d
sub nom, Reno v. Condon, 528 U.S. 141 (2000).
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, 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 (South Carolina 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. For these reasons, I will vote against
the confirmation of Judge Shedd to the United States Court of Appeals
for the Fourth Circuit.
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