Rights push on judges is resumed

Conservatives on and off Capitol Hill are urging Senate Republican leaders to renew the push to nominate and confirm right-wing jurists to the federal bench just two weeks after Samuel Alito's confirmation to the Supreme Court.

Three conservative members of the Judiciary Committee, Sens. Jeff Sessions (R-Ala.), John Cornyn (R-Texas) and Tom Coburn (R-Okla.), and conservative activists are growing impatient with the pace of judicial nominations.

Sessions and Republican activists say that there is a backlog of vacancies and that the Bush administration needs to act more quickly in sending conservative nominees to the Senate for consideration. In addition, they say, the judiciary panel needs to act on appellate nominees that have languished on the Hill for years.

"I think we're in a bit of a hold on nominees," Sessions said in an interview. "I'm concerned that the White House has not submitted nominations for the vacancies and the nominations they've submitted haven't been acted on."

Cornyn said he would support Sessions's push for faster action on the nominees. He said the White House is "where some of the slowdown has been."

"Don't think anyone has been slacking off," he said, noting that the Senate confirmed Chief Justice John Roberts and Justice Alito since Labor Day, but he added it is time to get these nominations to lower courts considered.

"I think it's certainly time to pick up the speed on these lower court now that we got the Supreme Court behind us," Cornyn said.

There are 21 vacancies on the circuit courts and 36 on the district courts, according to Alliance for Justice, a liberal group that tracks the federal judiciary.

But Republican leaders, such as Majority Leader Bill Frist (R-Tenn.) and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), may be reluctant to force the issue when major legislation is coming out of the Judiciary Committee.

The Senate is debating the asbestos reform bill, which three Judiciary Democrats -- Sens. Patrick Leahy (Vt.), Dianne Feinstein (Calif.) and Herb Kohl (Wis.) -- have endorsed, giving the controversial measure crucial bipartisan support.

In addition, Specter has claimed jurisdiction over one of the biggest priorities coming up on the Senate schedule: immigration. Given the split among conservatives over how to handle the issue, Democratic support will almost certainly be necessary for the success of any legislative solution.

A Republican aide familiar with the Judiciary Committee's schedule said that it is likely to hold hearings for D.C. Circuit Court nominee Brett Kavanaugh and 4th U.S. Circuit Court nominee William Haynes after finishing work on immigration.

Bringing up controversial judicial nominees for contentious debate could make bipartisan cooperation more difficult. But conservatives such as Coburn don't seem willing to wait for legislative activity to run its course before turning back to judges.

A thorny issue for Frist and Specter is what to do about William Myers, a nominee to the 9th U.S. Circuit Court of Appeals, and Henry Saad, a nominee to the 6th. Fourteen centrist Republican and Democratic senators specifically excluded Myers and Saad from a deal not to filibuster judicial nominees except under extraordinary circumstances, the so-called "Gang of 14" deal.

Coburn said he doesn't care whether these nominees are voted up or down on the Senate floor; he said he just wants to see a vote.

Of particular concern to conservatives is the 9th Circuit, which has issued rulings drawing intense criticism from conservatives, such as in 2002 when the court decreed that reciting the Pledge of Allegiance in public schools is unconstitutional.

There are four vacancies on that court, more than any other appellate court in the country. The 9th is also the largest appellate court in the country, with 24 active judges.

Certain conservative Senate Republicans and activists are concerned that the Bush administration is negotiating with Feinstein over whom to name to the court.

One Republican aide familiar with the circuit said Feinstein has shot down names that the White House has floated, such as former Rep. Chris Cox (R-Calif.), who is now chairman of the Securities and Exchange Commission.

Other Senate Republicans agree that Feinstein has an open ear at the White House.

Feinstein, whose home state falls within the sprawling 9th Circuit's jurisdiction, is also a pivotal member of the Judiciary Committee. Senate Republicans consider her one of the swing votes on the committee, pointing to her endorsement of asbestos reform.

Feinstein is also considered to have "blue slip" privileges over nominees to the 9th Circuit. Blue-slip privileges are a courtesy extended to the senators representing the states to which various seats on appellate courts are traditionally assigned. Senators from the nominees' "home states" can hold up a nominee by refusing to sign off on the pick's blue slip.

And while senators have debated in recent years how seriously to treat the tradition of blue-slip privileges, Feinstein's privilege is considered less in question than most of her colleagues' -- largely because of her bipartisan reputation.

Feinstein, and to a lesser extent her Californian colleague Sen. Barbara Boxer (D-Calif.), have wide discretion over the 9th Circuit because California -- because of its large population -- has had many seats on the 9th Circuit.

Howard Gantman, Feinstein's spokesman, said the White House has consulted with his boss on nominees.

"They contact us and tell us people they're considering," he said. "Sometimes we've given them indications."

Gantman said that Feinstein had told the administration that she had serious questions about Cox, who later withdrew his name from consideration, and that she also opposed Carolyn Kuhl, a 9th Circuit nominee Democrats have filibustered and whom Bush has not renominated.

He noted, however, that Feinstein voiced opposition to Randy Smith, whom Bush nominated to the 9th Circuit anyway.

A little bit more on the two Smiths.

White House Looks at Two Names for 9th Circuit
Justin Scheck
The Recorder
11-09-2005
Last month, the Justice Department began background checks of the potential nominees: Los Angeles transactional attorney Milan Smith and Idaho state court Judge N. Randy Smith. "Hopefully, by the end of the year there'll be a nomination," said Milan Smith, 63, a founding partner at Smith Crane Robinson & Parker, a former member of the state Fair Employment and Housing Commission, and the brother of Gordon Smith, a Republican senator from Oregon.
Milan Smith attributes being considered to a convergence of experience with well-placed political connections.
"My name was put in, ironically, by both [Senators] Barbara Boxer and Orrin Hatch a number of years ago," he said.
The connection with Hatch -- the Republican U.S. senator from Utah -- is easy to understand, given that Milan Smith is active both in the Church of Latter Day Saints and in Mormon business ventures. The link to Boxer came via his brother.
"He and Barbara Boxer are very good friends, even though they don't see eye to eye on everything," Milan Smith said. A Boxer spokesman refused to comment.
After his brother introduced him to Boxer, Milan Smith explained, the Democratic senator learned the circumstances of Milan Smith's departure from the Fair Housing and Employment Committee in 1991.
He stepped down in protest after then-Gov. Pete Wilson vetoed a bill that would have given the commission power to award compensation to victims of sex harassment.
"I really felt for those people who'd been sexually harassed," he said. "Sure I'm a Republican, but I'm a Republican with a heart." ...
Like Milan Smith, Judge N. Randy Smith has a long record of legal and political experience.
Since he was appointed in late 1995 to an Idaho trial court -- where his current responsibilities include civil and criminal cases as well as administrative duties -- ethics rules have limited N. Randy Smith's role in politics.
But he used to be a GOP bigwig -- as chairman of Idaho's Republican Party.
Like Milan Smith, N. Randy Smith attended Brigham Young University as an undergraduate. The Idaho Smith got his law degree from BYU's J. Reuben Clark Law School in the 1970s, according to information that was posted on the Idaho State University's Web site, one of the schools where Smith has taught. ...
According to the same biography, Smith worked as a corporate lawyer for the agribusiness giant J.R. Simplot Company for several years until he went to work at Idaho-based Merrill & Merrill in 1982. He remained there until he was named to the bench.
His specialties at the firm, the biography states, included insurance defense, corporate and asbestos litigation, and probate and estate planning. ...
http://www.law.com/jsp/article.jsp?id=1131457369606

A little bit more on Milan Smith, the bio of him at his law firm.

MILAN D. SMITH, JR.
Mr. Smith became associated with the Los Angeles firm of O'Melveny & Myers in 1969, where he worked as a transactions specialist with emphasis on corporate, real estate, and secured financing law.
In 1972, Mr. Smith left O'Melveny & Myers to found the Firm that later became Smith Crane Robinson & Parker LLP, where he is the Managing Partner and continues to specialize in the areas previously noted as well as public entity representation. Mr. Smith is admitted to practice before the California Bar, the Bar of the District of Columbia, the Bar of the United States Supreme Court and the United States Tax Court.
Mr. Smith has had extensive experience in forming and advising business and public entities as well as negotiating and documenting a wide variety of complex business transactions, with special emphasis on real estate transactions and related environmental matters. Due to his extensive experience in the referenced practice areas, Mr. Smith has also been called as an expert witness in litigation concerning various corporate, real estate and transactional matters.
Mr. Smith has been an honoree of Marquis Who's Who in American Law, was a member of the Board of Directors of the Brigham Young University Alumni Association from 1982 to 1986 and of the Executive Committee of that Board from 1984 to 1986. He was the founding president of the Informed Voters League. From approximately 1974 through 1983, Mr. Smith served as Vice Chairman of Ettie Lee Homes for Youth.
In June 1984, California Governor George Deukmejian appointed Mr. Smith to the Governing Board of the Los Angeles State Building Authority, where Mr. Smith served as President until January 1992. Mr. Smith presently serves as the Authority's General Counsel.
In 1987, Governor Deukmejian appointed Mr. Smith to a term as a member of the Fair Employment and Housing Commission, of which Mr. Smith served as Vice Chairman. The Commission is primarily charged with enforcing and interpreting California laws prohibiting unlawful discrimination in employment, housing, public accommodations and public services.
Mr. Smith serves as a member of the Deseret Trust Company of California and the Fraternity of Friends of the Music Center and is a member of the Board of Visitors, School of Religion, Claremont Graduate School. Mr. Smith is proficient in Spanish.
EDUCATION
Brigham Young University, BA, cum laude 1966
University of Chicago, Doctor of Law, 1969
National Honor Scholar (1966-1969)
http://www.scrplaw.com/attorneys.htm#smith

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