August 15, 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 Judge Dennis W. Shedd to the US Court of Appeals for the 4th Circuit. Judge Shedd's narrow view of the law, his apparent disregard for the victims of racial and gender discrimination, including victims of sexual harassment, and his judicial temperament make him a poor choice to be elevated to the 4th Circuit.

Judge Shedd was overruled 9-0 by the Supreme Court when he declared that Congress lacked the power to enact the Drivers' Privacy Protection Act, based on a narrow view of the US Constitution biased in favor of "states' rights." That law was developed in part because anti-abortion activists had used public motor vehicle records to track down and harass doctors, staff, and patients of abortion clinics. In striking down the law, Judge Shedd did not even acknowledge the invasion of privacy or the threat of violence that Congress sought to address in passing it.

In his hearing before the Senate Judiciary Committee on June 27, 2002, Judge Shedd stated that he accepted the Supreme Court's decision regarding the seminal privacy case, Griswold v. Connecticut on which Roe v. Wade is based. But he would not state whether he thought the right to privacy included the right to choose abortion. The protections afforded women under Roe v. Wade now hang in the balance, and we cannot support a nominee who will not state his views on these existing court decisions.

In reference to his disregard for victims of discrimination, Judge Shedd also admitted at the hearing that a plaintiff had never won a jury trial of an employment discrimination claim in his courtroom. Many complainants lost because Judge Shedd refused to allow a trial of the facts alleged in their cases, even when the US Equal Employment Opportunity Commission had found cause to issue a complaint. This intervention not only is evidence of a poor understanding of civil rights law, but also of a tendency to substitute his personal opinion of facts for the adversarial forum provided in our system of justice.

For example, Judge Shedd concluded that there was no factual issue for a trial in a case where the complainant alleged that her supervisor made sexual comments to her on a daily basis, including dirty jokes, graphic references to her body, remarks about whether she had "been up all night getting some," and descriptions of the anatomy of women he was dating. The complainant told the supervisor the comments were offensive and went to a female manager in the company who agreed. The manager reported the behavior to company headquarters; a day later, the offending supervisor scolded the complainant for reporting him. The complainant met with an investigator, but the company retained the supervisor, and the harassment continued. The complainant then resigned. A federal magistrate recommended to Judge Shedd that a trial be held to determine whether the complainant found the conduct severe enough to affect her employment and cause her resignation. Instead, Judge Shedd dismissed the case entirely. He concluded on his own that the complainant did not find the work environment to be abusive, summarily determining that she resigned because "she quit enjoying her job." (See Roberts v. Defender Services, Inc.) Other cases dismissed by Judge Shedd evidence a similar disregard for complainants' factual assertions.

Judge Shedd was also dismissive of those seeking to remove the Confederate battle flag from the South Carolina State Capitol building and of those seeking to sue public officials for egregious violations of their rights.

Judge Shedd has published uncommonly few opinions, which has made it difficult to gauge the entirety of his record. We agree with The New York Times, which wrote in an editorial entitled, "The Secret History of Judges," ( July 28, 2002) that sitting judges should provide "a full accounting of their previous rulings." We would add that it is critical for the Senate to evaluate that full record. For a lifetime position as important as a US appeals court judge, nothing less can suffice. We believe that such an evaluation will find that Judge Shedd lacks the demonstrated commitment to fundamental constitutional rights, including reproductive choice and civil rights, that is a basic requirement for confirmation to a lifetime appointment to the federal appellate courts.

NCJW urges you to oppose Judge Shedd's nomination.

Sincerely,

Marsha Atkind National President

cc: Members of the Senate Judiciary Committee