June 26, 2002

The Honorable Patrick Leahy
Chairman, Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Leahy:

On behalf of the 90,000 members, supporters and volunteers of the National Council of Jewish Women (NCJW) nationwide, I am writing to express our opposition to the confirmation of Commissioner Lavenski Smith to the US Court of Appeals for the Eighth Circuit.

NCJW believes that a basic requirement for confirmation to a lifetime appointment to the federal appellate courts should be a demonstrated commitment to fundamental constitutional rights, including reproductive choice. Given the fact that the Supreme Court decides so few cases, the federal appellate courts are often the final word when it comes to protecting our constitutional and civil rights. The information that has come to light on Commissioner Smith's record of hostility toward reproductive freedom, as well as his notable lack of experience dealing with cases involving federal constitutional issues, leads us to conclude that his nomination should not be confirmed.

Commissioner Smith served as an officer of the Arkansas chapter of the Rutherford Institute, an organization that openly questions the importance of the separation of religion and state and the authority of the Supreme Court. In addition, the Institute is actively involved in trying to roll back abortion rights in courts across the country. As an officer of this institute, Smith represented the "Unborn Child Amendment Committee" in its suit against the University of Arkansas for Medical Sciences (a public hospital) to bar the performance of all abortions, even those that were privately funded (Unborn Child Amendment Committee v. Dr. Harry Ward, 328 Ark. 454, 943 S.W.2d 591 (1997)). He argued that Amendment 68 to the Arkansas Constitution prohibits public funding for all abortion-related reproductive health care services, except to save the life of the woman. Since the medical personnel and the hospital are public entities, Smith argued that abortions could not be performed there, regardless of who paid for them.

The Arkansas Supreme Court resoundingly disagreed with this broad reading of the state constitution, and held that the hospital could perform abortions if the patient, her insurance, or another third party could pay for it in advance, or if it was necessary to save the mother's life. The court's ruling was based on two precedents already set by the court, as well as the US Supreme Court's ruling in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), which held that there is a clear difference between the use of public funds for abortion and the use of public facilities and employees in the performance of abortions. NCJW is deeply concerned about Smith's commitment to upholding the principles of Roe v. Wade, given his role in this case and his limited reading of the protection of reproductive rights. We cannot afford to confirm judges to this important court who may not be committed to the constitutional protection of women's reproductive rights.

Commissioner Smith has little experience arguing cases in the federal courts. He served as local counsel to larger lead law firms in federal cases, but the only case in any court in which Smith appears to have had a lead role in was the Unborn Child Amendment Committee case, which he lost on appeal. In addition, Smith is an inexperienced judge. He spent less than two years on the Arkansas Supreme Court, during which time he issued few noteworthy opinions and dealt with only a few cases involving issues of federal law.

In conclusion, the National Council of Jewish Women believes that judges nominated to the federal appellate courts should be considered based on their judicial philosophy and commitment to safeguarding constitutional and civil rights. We believe that Commissioner Smith's record raises very serious concerns in these areas. We urge you to oppose this nomination.

Sincerely,

Marsha Atkind National President

Cc: Members of the Senate Judiciary Committee