October 11, 2002
The Honorable Patrick J. Leahy
Chairman, Senate Judiciary Committee
United States Senate
Washington, DC 20510
Dear Chairman Leahy:
We are writing to thank you for recognizing the need for
a complete review of the record and a full debate on the nomination
of U.S. District Judge Dennis Shedd to a lifetime position
on the U.S. Court of Appeals for the Fourth Circuit. Given
the disturbing recent record of the Fourth Circuit on critical
issues such as the constitutional power of the federal government,
and Judge Shedd's own record on these topics, we believe the
Senate Judiciary Committee must fully debate this important
As you know, under Chief Justice William Rehnquist, the Supreme
Court has been striking down federal legislation at a rate
without precedent in our nation's 225 year history. These
rulings, often grouped together under the inaccurate label
of "federalism," have undermined important laws
protecting women, senior citizens, minorities, the disabled,
and the environment.
These rulings have engendered withering criticism from all
sides of the political spectrum. For example, Judge John Noonan
has declared in a recent book that the Rehnquist Court has
already acted "without justification of any kind"
in doing "intolerable injury to the enforcement of federal
standards." "The present damage," Judge Noonan
warns, "points to the present danger to the exercise
of democratic government."
The Fourth Circuit has been the most aggressive appeals court
in the country in advancing this "federalism" agenda
and in striking down and undercutting environmental, safety,
health, civil rights, privacy, and other federal statutory
safeguards. To give just one example, the Fourth Circuit recently
relied upon the Eleventh Amendment in reversing a district
court ruling which held that state officials had violated
federal law surface mining requirements by permitting one
of the most environmentally destructive practices imaginable:
mountaintop removal coal mining that buries and destroys valleys,
rivers, and streams. Bragg v. West Virginia Coal Ass'n, 248
F.3d 275 (4th Cir. 2001), cert. denied, 122 S. Ct. 920 (2002).
As Solicitor General Ted Olson stated in response to a petition
for Supreme Court review, the Fourth Circuit's "Eleventh
Amendment ruling in this case is incorrect." As Solicitor
General Olson continued, however, the Supreme Court generally
will not review even an incorrect decision when no other appellate
court has yet decided the precise issue involved. The Supreme
Court's subsequent denial of review demonstrates the critical
role of Fourth Circuit appeals judges, who are the final authority
in nearly all federal environmental and other cases from Maryland,
North Carolina, South Carolina, Virginia, and West Virginia.
Against this backdrop, Judge Shedd's ruling in Crosby v. South
Carolina DHEC, C.A. No. 3:97-3588-19BD is enormously troubling.
In Crosby, Judge Shedd held that "Congress did not property
enact the [Family and Medical Leave Act] under § 5 of
the fourteenth amendment and, therefore, has not abrogated
defendant's eleventh amendment immunity from suit." (Order
dated October 14, 1999). Judge Shedd reached this significant
constitutional holding in a two-paragraph order that merely
rubber-stamps the cursory analysis of a magistrate judge.
The magistrate judge noted a split in authorities by other
district courts on the constitutionality of the FMLA, but
made no effort to analyze or critique the rulings upholding
Judge Shedd's Crosby decision is inexplicably terse given:
(1) the fact that he was ruling that an important law passed
by Congress was unconstitutional; (2) the absence of directly-controlling
precedent; (3) the split among other district court opinions
on the issue; and (4) the fact-specific nature of the Supreme
Court's "congruence and proportionality" test under
Section 5 of the Fourteenth Amendment. See City of Boerne
v. Flores, 521 U.S. 507, 520 (1997). In light of the unsettled
and sweeping nature of constitutional federalism rulings generally
and of the importance of the specific ruling that Congress
did not properly enact the FLMA under Section 5 of the Fourteenth
Amendment, this is deeply disturbing.
Equally unsettling is Judge Shedd's testimony in defense
of his Crosby ruling. When Senator Charles Schumer (D-NY)
asked about Crosby, Judge Shedd defended his conduct by noting
that instead of "rubber-stamp[ing]" the initial
constitutional ruling by the magistrate judge he "asked
the Justice Department to intervene and give us their views."
TR at 58. Judge Shedd testified that if he had not notified
the Justice Department "nobody maybe would have ever
learned about it." Id.
What Judge Shedd failed to tell the Committee is that federal
law (28 U.S.C. § 2403) requires federal judges to notify
the Justice Department whenever the constitutionality of any
act of Congress comes into question and to allow the United
States to intervene:
In any action, suit or proceeding in a court of the United
States to which the United States or any agency, officer or
employee thereof is not a party, where the constitutionality
of any Act of Congress affecting the public interest is drawn
in question, the court shall certify such fact to the Attorney
General, and shall permit the United States to intervene for
presentation of evidence . . ."
In light of this clear statutory mandate, the magistrate
judge in Crosby erred seriously in not notifying the Department
of Justice before he struck down the FMLA. Judge Shedd would
have broken federal law if he "rubber-stamped that"
with the expectation that "nobody maybe would have ever
learned about it." Judge Shedd's attempt to defend his
decision in Crosby is astonishing -- he did ultimately rubber-stamp
a cursory analysis by the magistrate judge, he did not publish
either his Order or the magistrate judge's report, and his
notification of the Justice Department was required by law,
a fact that he failed to disclose.
Judge Shedd's cavalier treatment of the important constitutional
questions presented in the Crosby case raise serious concerns
about his fitness for a lifetime appointment to the Fourth
Circuit. Thank you for taking these concerns seriously in
exercising your constitutional advice and consent authority.
Community Rights Counsel