In 2002 Vermont Democrat Senator Patrick Leahy, then as now the Chairman of the Senate Judiciary Committee, was a vocal opponent of Bush Third Circuit Court nominee D. Brooks Smith because of Smith's former membership in an all-male fishing club in Pennsylvania.
Today, Leahy is silent on the membership of Obama Supreme Court nominee and sitting Second Appeals Court Judge Sonia Sotomayor in the Belizean Grove, an elite, all-female club. In a recent story, Politico.com described the Belizean Grove "as the female answer to the Bohemian Grove -- a secretive all-male club whose members have included former U.S. presidents and top business leaders -- the Belizean Grove has about 125 members, including Army generals, Wall Street executives and former ambassadors."
Which is another way of saying, no men allowed. The Belizean Grove quite deliberately and unashamedly discriminates on the basis of gender.
And the response from the Chairman of the Senate Judiciary Committee?
Yet in 2002 he couldn't stop talking about his thought that Smith's one-time fishing club membership was sufficient grounds to deny Smith a seat on the Third Circuit. Nor has there been a word of concern from other Smith critics of the day, including New York's Senator Charles Schumer. Schumer demanded information from Smith about his ex-membership in the club in his written questions to the judge -- just at the time the National Organization for Women went public with an attack portraying Smith as a judge whose one time membership in the fishing club showed conclusively that he was biased towards women.
As it happens, I would know something about this subject, writing a 2005 book on the Smith episode (alas, now out of print) called The Borking Rebellion. Smith, a college classmate and friend of mine, had served for fourteen, unblemished years as a Reagan-appointee to the Western District of Pennsylvania. By 2001, the year of his nomination by George W. Bush for a seat on the Third Circuit Court of Appeals, Smith was the Chief Judge of the Western District. With the highest ratings from the American Bar Association, well regarded as a fair and impartial jurist by his Western Pennsylvania community (the Court was headquartered in Pittsburgh), and with the support of both Pennsylvania's Senators of the time, conservative Rick Santorum and liberal Arlen Specter, Smith's nomination had not an iota of controversy about it.
Until, that is, his nomination arrived in the highly charged partisan precincts of the Senate Judiciary Committee, chaired then as now by Leahy. Smith's fight was won -- narrowly -- and he sits on the Third Circuit today. But the fight to confirm him for the job was fierce. Two other nominations at the same period did not survive -- the D.C. Appeals Court nominee, Miguel Estrada (denied confirmation, according to leaked Senate Democratic documents, because he was a "Latino" and "therefore "dangerous), and Fifth Circuit nominee Judge Charles Pickering.
Here are the facts.
In 1988, a Reagan nominee for the Western District, already a sitting Pennsylvania state judge, Smith belonged to his grandfather's all-male fishing club, the Spruce Creek Rod and Gun Club. A large, ramshackle facility sitting among the rolling hills of rural Hungtingdon County, Spruce Creek was a social club, specifically designated as such by the U.S. government in its National Register of Historic Places. It had no bar -- members had to bring their own alcohol if they wished a drink -- and its bedrooms were filled, camp-style, with old bunk beds. The dining room resembled a kids camp with large wooden tables and benches. The paint peeled. There was nothing fancy here, large as an old barnlike structure it may be.
As I well knew, both as Judge Smith's friend and from visiting the place, the Judge was not a frequent visitor. Unlike his grandfather, the Judge was something of a workaholic. He could fish -- but wasn't one to frequent Spruce Creek and stand around mid-stream rod in hand. His membership was sentimental. Asked at his 1988 confirmation hearing if he would work to end the all-male gender membership barrier, Smith promised he would do so. He did just that, trying and failing several times to get the club to admit women as members (they were already allowed as wives or guests.) In 1999, between his infrequent visits with his wife and consistent rebuffs from the club leaders about allowing women in as members, Smith finally quit.
By 2002, as Leahy, Schumer, and others were busy colluding behind the scenes with left-wing special interest groups to savage Bush judicial nominees, Smith's now ex-membership became a target. Submitting his written questions to Smith, Schumer's 6th question concerned Spruce Creek. It had no sooner arrived on Smith's desk than, mysteriously, a corresponding attack from the National Organization for Women appeared in the Pittsburgh Post-Gazette. While it never mentioned Schumer's question to Smith, the attack tracked with the points raised in Schumer's question. When this was noted by a Smith supporter in a response, NOW denied any collusion, then proceeded to comment on the substance of Schumer's question -- which it had previously claimed not to have seen and which was still sitting atop the "privacy" of Smith's desk.
The attack was beaten back to considerable degree because of an interesting fact neither Leahy nor Schumer knew. On the wall of the club was a photograph of Marine One landing at Spruce Creek. That would be the official helicopter of the President of the United States. The president in question was a Spruce Creek devotee -- Jimmy Carter. Not only was the Democratic president responsible for appointing every federal judge in the country between 1977 and January of 1981 a frequent visitor to what Leahy and Schumer were painting as a sewer of gender discrimination, he was still coming there long after his White House days were over.
But this was not enough for Leahy. On July 30, 2002, in the Senate floor debate over Smith's nomination, an angry Leahy said this:
If men want to go off and go fly fishing themselves, that is fine. If women want to go off and go fly fishing, that is fine. But when they have facilities to conduct business and when businesspeople go there to conduct business and that is how you may be able to get ahead in the business world if you exclude women from it, if you say, women, if you want to be in business, you are not going to be able to join the moguls of the business or legal community here, then it is exclusionary…. Spruce Creek invidiously discriminates against women.
Ignored, of course, was a letter from a club official and longtime member saying that not only was the club not for business purposes, "the whole point of the Club is to get away from business."
But none of this -- not Smith's rare attendance at the club, not the fact that it was purely a social club, not the fact that he had tried to change the club as promised and eventually resigned -- was good enough for Leahy and his fellow Judiciary Committee Democrats. Over and over they drilled home that they opposed gender discrimination in clubs, most particularly any club that even hinted at the idea that business could be discussed on site and that business associates of a member could be invited. Time after time they chose to label this fishing club as a business club and worse, a business club that deliberately discriminated by excluding women as members.
Said Senator Dick Durbin of Illinois:
Judge Smith has a long association with a prestigious private club that has a formal policy barring women from membership. Exclusive clubs are serious business, forging important commercial ties and blocking women from full opportunity in society…
Said Senator Russell Feingold of Wisconsin:
In my mind, if the club permits its members to invite business associates to the club and hold business meetings there, that is a club that should not discriminate against minorities or women.
Other Democrats joined the chorus, including Senator John Kerry, who was not even a member of the Judiciary Committee. His Massachusetts colleague Senator Ted Kennedy, who was a senior member of the Committee, said he was opposed because:
Contrary to Judge Smith's representations, it also appears that the Spruce Creek Club is not merely a social club, but a place where business is conducted. Three ethicists, including one who wrote at the behest of the Ranking Minority Member of the Judiciary Committee, have written that if the Spruce Creek Club can be used for business purposes, its exclusion of women would violate the Judicial Code of Conduct.
Washington State's Senator Maria Cantwell huffed:
I believe that there is little difference between a club that affirmatively denies membership to women, and a club that denies membership to African Americans or to people of a particular religious affiliation.
One left-wing Washington special interest group after another piled on Judge Smith. People for the American Way, NOW, the Community Rights Counsel, the Alliance for Justice and so on.
Now, seven years later comes the nomination of Second Circuit Judge Sonia Sotomayor to the Supreme Court and Smith's critics are silent -- deafeningly so. Even in the face of the Politico story, which further describes the Belizean Grove club in this paragraph:
The group -- which on its website describes itself as "a constellation of influential women who are key decision makers in the profit, nonprofit and social sectors; who build long-term, mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same" -- hosts periodic meetings around New York, as well as an annual off-the-record three-day retreat in Central or South America at which its members attend cocktail parties with U.S. diplomats and host-country officials and participate in panel discussions on public policy and business affairs."
In other words, the Belizean Grove, of which Judge Sotomayor is a proud member, is precisely what Spruce Creek Rod and Gun Club was not. It is not about fishing but about a "constellation of influential women" who quite specifically are "key decision makers" gathered by gender for "mutually beneficial relationships." It is -- according to the Belizean Grove itself -- about power.
Where are Senator Leahy and his colleagues now that they have a Supreme Court nominee who is guilty of all the things they falsely accused both Judge Smith and Spruce Creek? Where is Senator Feingold? Where is Senator Schumer? Where is the National Organization for Women? Where is People for the American Way? Is the Alliance for Justice now a believer that discrimination by gender is OK? Where are the so-called legal ethics law professors who insisted Judge Smith's presence at Spruce Creek was unethical?
The question is really very simple: will Leahy and company apply to a Latina female Obama nominee the very same standards they demanded of a white male Bush nominee?
Or are we about to listen to an affirmative action fish story?