STB 1988 04
ON SENATE CONFIRMATION OF
MEN AND MASONS
In the spring of 1987, Judge David B. Sentelle was nominated to
fill the vacancy on the United States Court of Appeals for the
District of Columbia Circuit. The nomination was held up in the
Senate because Judge Sentelle was a member of the Masonic
Fraternity. Fortunately Judge Sentelle is a man of integrity and
honor and stood up for his Masonic principles. Several Senators
also had the courage to speak out forcefully in support of their
Masonic membership. Judge Sentelle has shared with the Fraternity
the story of his nomination and we would like to thank him for
doing so. Hro. Sentelle belongs to Excelsior Lodge #261,
Charlotte, N.C.
As you know, I have succeeded Justice Antonin Scalia in his
former position on the United States Court of Appeals for the
District of Columbia circuit. Normally this would not seem a
topic of Masonic interest. Indeed, I would formerly have thought
that it had nothing to do with Freemasonry whatsoever, except
insofar as the teachings of our order and the examples set by our
brethren as ancient and modern as George Washington, both
Roosevelts, and Gerald Ford instruct us in how to conduct
ourselves in public life as well as private. However, as some of
you know, my fitness to serve in this office was questioned by
certain senators because I am a Mason and, therefore, you as
Masons may have some interest in what went on. Indeed, perhaps,
you may have a right to know.
The story begins in early June of 1986. At that time, I had
been a United States District Court Judge for the Western
District of North Carolina for approximately seven months. I was
very happy in that position. One morning, I received a call from
Washington, D.C., specifically from an assistant attorney
general, who informed me that Judge Skelly Wright of the United
States Court of Appeals for the District of Columbia Circuit
had announced that he was retiring. I found this fact to be of
more than passing interest since Skelly Wright is viewed, or was
viewed, as one of the more liberal members of that court and his
retirement would present the opportunity for President Reagan to
appoint a more conservative judge to take his place. I did not,
however, immediately understand why the Assistant Attorney
General was calling me. However, he quickly let me know the
reason. "The Administration would like to know," he said,
"whether you are at all interested in elevation to the Court of
Appeals to the District of Columbia Circuit."
At that point, a lot of things went through my mind. The
circuit courts of appeal are the second highest courts in the
United States. They are, in short, one step below the United
States Supreme Court. The circuit for the District of Columbia is
considered by many to be the most prestigious of the circuits. It
is often referred to as the No. 2 court in the land. It isn't the
Supreme Court, but you can physically and metaphysically see the
Supreme Court from there. In my career, four judges of that court
have been nonimated to be Justices of the United States Supreme
Court. Appointment to that Circuit Court is an opportunity that
would come but once in a lifetime and it's an opportunity that
one does not lightly turn down.
I concluded at that point that the discussion of the position
with me was a compliment; that I would go to Washington and be
further complimented; have a pleasant conversation; fly back to
North Carolina; and receive polite assurances that I had been
duly considered but that someone else had been chosen for the
appointment. I flew to Washington. As I had anticipated, I was
shuttled all day long among various officials of the Department
and the Reagan Administration; being asked the same questions
over and over about my background, my general philosophy, and my
thoughts on moving to Washington.
I flew back to Asheville and learned that night that Chief
Justice Burger was retiring from the Supreme Court; that Justice
Rehnquist would be named to take his place; and that Judge
Antonin Scalia of the District of Columbia Circuit was being
nominated for elevation to the Supreme Court thereby creating a
second vacancy. Not long after that, the Assistant Attorney
General called me again, advised me that the list of nominees was
being shortened, at which point I assumed that I was about to be
told I was no longer to be on the list. Instead, he told me that
I was about to be included on the short list of nominees that
would remain, but before my name was put on that list, they had
to know if I would take the position if it was offered. I said
yes, if the job is offered to me, I'll take it.
My nomination was then duly sent to the United States Senate.
The ABA conducted an investigation of my qualifications. They
do this for all Federal Judicial nominees. The results are
classified as unqualified or qualified. In a minority of cases,
the ABA goes on to say well qualified, in a very few rare
instances, exceptionally well qualified. The ABA's
investigating committee did not find me exceptionally well
qualified, but I am flattered to say that they unanimously voted
me well qualified. Therefore, the Administration did not expect
any difficulties with the confirmation hearing and advised me
that I would need to have no witnesses present at the hearing,
that very few senators would probably bother to attend, and
that I might as well bring my family and enjoy a day or two in
Washington, D.C.. That's not quite the way it happened.
They were right that not many senators attended. Only two
members of the Committee showed up, Senator Leahy, who was
presiding, and our Brother, Senator Strom Thurmond. As to what
happened next, well, the editorial page of The Wall Street
Journal reported it this way:
"During the hearings on the Judge nominated to succeed Antonin
Scalia on the D.C. Circuit Court, Sen. Leahy asked Judge David
Sentelle if he planned to resign from a club that discriminated
against blacks.
"Judge Sentelle hadn't expected this sort of controversy. There
was none in 1985 when he was made a Federal District Court Judge
in North Carolina. The American Bar Association rated him "Well
Qualified." Only Sens. Leahy and Strom Thurmond bothered to show
up for the early April hearing. Sen. Leahy began by urging Judge
Sentelle's wife and daughters not to miss the cherry blossoms. He
told the Judge, 'by all accounts that I have read, you served
with a great deal of distinction in your home state.'
"Then came the kicker. Sen. Leahy asked if Judge Sentelle
belonged to any organizations that 'discriminate against
members of minority groups.' 'not to my knowledge,' Judge
Sentelle replied. Sen. Leahy noted that Judge Sentelle was a
Mason. He charged that according to his information, Masons must
be 'male, white and believe in a supreme being.'
"Judge Sentelle protested that 'there are black Masons.' Sen.
Leahy stood his ground: 'Do you feel that a judge should be
allowed to hold membership in an organization that discriminates
on the basis of race?' Judge Sentelle allowed as how they
shouldn't. The code of judicial conduct prohibits 'invidious
discrimination," which Judge Sentelle said proscribes fraternal
groups that discriminate by race."
At this point, let me interrupt The Wall Street Journal since
they don't give the full report and they could not since the
transcript of the Senate Proceedings occupies 47 pages. Senator
Leahy asked me the following question: "If your nomination is
confirmed, do you plan to maintain your membership in these
Masonic Organizations?" At that moment, if I had told the
Senator that I did not intend to maintain my membership in
Excelsior 261, in the bodies of the Scottish Rite, and the Oasis
Temple of the Shrine, not only would I have been saying that I
had been doing something wrong to have held two judgeships for
four years as a man and a Mason, but I would have been
repudiating the principles that led my father and my grandfathers
and my uncles and my brother into this fraternity. I would have
been reflecting on the judicial character of the late Judge
Warlick and dozens and even hundreds of other judges who are our
Brothers and whom I admire. It was then that I stated my
intention to remain a Mason. After a little more arguing back and
forth between Senator Leahy and myself, it became Senator
Thurmond's turn. I don't know if you know our Brothcr Senator
Thurmond personally, but by this time, he was quite agitated. His
prematurely orange hair was standing on end and Senator Thurmond
asked: Do you know of a Mason that has been accused of
discrimination just because he joined the Masons?
"Judge Sentelle: Not to my knowledge, not before today,
Senator.
"Sen. Thurmond: I have been a Mason since 1925.
"Judge Sentelle: Yes, Sir. "Sen. Thurmond: I am proud to be a
Mason.
"Judge Sentelle: I am, too, Senator."
As things developed then, Senator Leahy blocked the Senate vote
on my confirmation for the next few weeks. Interestingly enough,
a Knight of Columbus and a non-white Mason were approved by the
Committee without holdup and without question of their
membership during that period of time. After my nomination
cleared the Committee, and again interestingly enough, Senator
Leahy did not cast a vote against it, I was unanimously passed by
the Committee. My nomination then went to the Senate Floor where
Senator Simon of Illinois placed a hold against that nomination
saying that the hold was placed to give him time to inquire of
the ABA as to whether or not my membership in the Masonic Lodge
offended the ABA's standards for judicial nominees. Their
response was:
"As you know, the American Bar Association has already
approved Judge Sentelle as "Well Qualified" for the Federal
Judiciary, first on August 5,1985, in connection with his
nomination to the United States District Court and most recently
on February 3, 1987, in connection with his nomination to the
United States Court of Appeals. Our Committee is not in a
position, nor would it wish, to comment further on his
qualifications."
During the pendancy of Simon's hold on my nomination, I heard
from Masons from North Carolina, West Virginia, from as far away
as Colorado, and so I might add, did Senator Byrd.
Finally when the senate recessed in August, the nomination was
still on hold. I was still hearing from Masons around the
country, so I understand, was Senator Byrd. Byrd's frustration
with the Senate's lack of progress was growing daily.
When the Senate reconvened in September, a rollcall vote was
taken to confirm my nomination by a vote of 87 to 0. Senator
Byrd stood up and declared that it had been his intention to have
a rollcall vote on that nomination ever since he first heard it
was held up because of my membership in the Masonic Lodge. He
said it was his intent to put that question to an end in the
U.S. Senate. Then Senators Helms, Thurmond and Allan Simpson all
spoke on their membership in the Masonic Lodge and how much it
meant to them.
As it happened, I was in Washington that day and Senator Helms'
staff had called me into the gallery to see the last of the
rollcall. When I came down to the cloakroom to call my wife and
tell her it was over, Senator Helms brought Senators Byrd and
Dole, all our Brothers, in to congratulate me and all did with
warm and fraternal and, I think, sincere enthusiasm. And indeed,
it was over.
Now let me say that throughout this whole process I have not
viewed myself as either a hostage or martyr. But whether or not I
was confirmed for the higher of fice, I can still get up every
morning and when I shave I don't have to look away from the
mirror because I know I can look in the eye of the same man and
the same Mason that I was before I ever met Senator Leahy or
Senator Simon. And I would rather be able to do that and meet on
the level with my Brethren than to hold court in any courthouse
in this land.
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