July 11, 2002
The Honorable Patrick J. Leahy
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Senator Leahy:
We, the undersigned civil rights, human rights, and labor organizations, write to express our grave concern about the Judiciary Committee’s review of the nomination of Dennis Shedd to the Fourth Circuit Court of Appeals. We fully appreciate your commitment as Chairman of the Judiciary Committee to ensuring a full and fair review of each nominee to the federal bench. However, we are concerned that the Committee has not received all of the information required to make a fully informed decision about whether to elevate Judge Shedd to the Fourth Circuit. We urge the Committee to take steps to complete the insufficient record on this nominee, and to hold another hearing on the nomination that will provide the Committee with the opportunity to examine fully the record of Judge Shedd.
The nomination of Judge Shedd to the Fourth Circuit is particularly important to the communities we represent. As Senator Kohl noted at Judge Shedd’s hearing, the Fourth Circuit is arguably the most conservative Circuit Court in the country. Its rulings on federalism, for example, have largely brought about the transformation of the balance between federal and state power in recent years. The Circuit is also the source of numerous adverse rulings on the critical civil rights and labor issues of the day, including affirmative action, voting rights, employment discrimination, class actions and attorneys’ fees in civil rights cases.
In this context, we are particularly troubled by the judicial record of Judge Shedd made available thus far. His decision in Condon v. Reno, holding the Drivers’ Privacy Protection Act unconstitutional, stands as one of the few decisions in recent history that the Supreme Court has said evidenced an improperly restrictive interpretation of Congress’s power to enact legislation. His rulings regarding employment discrimination on the basis of race, gender and disability reveal a disturbing tendency to deny plaintiffs jury trials on the very fact-intensive question of whether intentional discrimination occurred. In several instances, Judge Shedd has initiated defense motions on his own that are detrimental to the plaintiff’s case.
Dennis Shedd has served on the District Court for the District of South Carolina since 1991. At the Judiciary Committee’s hearing on the Shedd nomination on June 27, Senator Hatch noted that Judge Shedd has presided over 6000 cases, including 5,087 civil cases. However, Judge Shedd has only approximately sixty published opinions appearing in the official and unofficial reporters. While Judge Shedd’s decision to publish few opinions is not necessarily significant by itself, it does mean that Judge Shedd has an extremely high number of unpublished opinions that require full and complete review by the Judiciary Committee. The Judiciary Committee, however, has received only approximately 1500 unpublished opinions. Of course, some number of cases may have been disposed of without written rulings; for example, pursuant to settlement. However, the discrepancy between the number of civil cases assigned to Judge Shedd and the number of opinions that have been provided to the Committee may be as high as 3500. This significant discrepancy indicates that the Committee likely does not have the complete body of dispositive rulings entered by Judge Shedd.
We are particularly concerned that the Judiciary Committee does not have all of the rulings by Judge Shedd that have been reversed or vacated by the Fourth Circuit Court of Appeals. We believe as many as half of Judge Shedd’s rulings that were the subject of adverse action on appeal have not been produced to the Committee. The rulings of a nominee that have been reversed or vacated on appeal are an important part of a nominee’s judicial record. Examination of the nominee’s ruling and the Circuit Court’s subsequent treatment provides unique insight into the decision-making of the nominee as well as a measure of his or her ability to follow the law. Indeed, the Committee recognizes their significance by inquiring into such rulings in its questionnaire.
A number of the missing rulings are likely oral rulings issued by Judge Shedd from the bench. Since the rulings were appealed, they must be available in transcript form as part of the record on appeal. In assembling the complete judicial record of a nominee, there should be no meaningful distinction between an oral and written ruling that was appealed. Appellate courts certainly do not rely on such a distinction in reviewing the legality of lower court rulings. For example, in Wainwright v. Witt, 469 U.S. 412, 430 (1985), Justice Rehnquist rejected arguments that a trial court’s ruling on jury selection in a death penalty case had to be accompanied by a written order, noting that “the trial judge regularly relies upon [the] transcript as written indicia of various findings and rulings . . .” In criminal cases, the majority of rulings that are appealed are found only through transcripts. For these reasons, we believe it is incumbent upon the Committee to acquire the transcripts that reflect Judge Shedd’s rulings that were reversed or vacated by the Fourth Circuit.
Additionally, there are a number of reversals or orders vacating Judge Shedd’s rulings issued by the Fourth Circuit since the time of Judge Shedd’s nomination. To our knowledge, the Judiciary Committee has not obtained the underlying rulings ? either through transcripts or written rulings ? in those instances. We have also discovered a Fourth Circuit case which vacated a ruling by Judge Shedd in 1997 (prior to his nomination) and which did not appear in Judge Shedd’s response to the Judiciary Committee questionnaire.
Moreover, according to Senator Hatch’s statements at the hearing, the Judiciary Committee appears not to have received all of the 1,406 magistrate recommendations that were reviewed by Judge Shedd. Pursuant to 28 U.S.C. § 636(b), and in accordance with the practice of the District of South Carolina, Judge Shedd would have either accepted, rejected or modified each of these recommendations. Further, these magistrate reviews constitute only a portion of Judge Shedd’s total rulings, since referrals to magistrates occur only in certain cases. The number of Judge Shedd’s magistrate reviews alone approximates the total number of opinions produced to the Committee by Judge Shedd. By itself, this leads us to conclude that the Committee has not received all of Judge Shedd’s opinions, which would necessarily include rulings on magistrates’ recommendations and Judge Shedd’s own opinions. Again, these significant discrepancies warrant a thorough inquiry into Judge Shedd’s docket to determine whether there are other rulings that have not yet been made available.
Further evidence exists of an incomplete record. Judge Shedd provided over fifty fair employment opinions as part of his initial submission to the Committee. On the day prior to the hearing, however, ten additional opinions were produced. The number of supplemental opinions and their eleventh-hour production raise questions regarding how a significant portion of Judge Shedd’s civil rights docket could have been overlooked and whether there are more cases of this nature, or indeed others, that have not been produced. Additionally, rulings that were the subject of news coverage have not been produced. Senator Kohl questioned Judge Shedd about such a ruling regarding a prisoner on a hunger strike, noting that the Committee did not have the ruling and asking Judge Shedd to explain the substance of the ruling. In our own review of Judge Shedd’s record, we have located other cases not made available to the Committee. For example, Judge Shedd dismissed four employment discrimination cases, in