Posted 12:33 PM by Howard Bashman

Email from Law Professor Edward A. Hartnett, sent Thu 5/25/2006 9:46 AM:

It seems to me that this issue should be controlled in the Third Circuit by United States v. Banmiller, 310 F.2d 720, 736 (3d Cir. 1962) (in banc):

"As to the contention that this court was evenly divided in opinion and that therefore the decision of the court below must stand, we will state the following. An expression of a point of view by a member of this court at conference is tentative. The vote of a member of this court on the disposition of an appeal occurs after the proposed opinion of the court is circulated and does not become effective until the opinion of the court is filed. Judge Goodrich died before the circulation of the opinion in this case and therefore did not vote."

Judge Becker's situation is distinguishable in that his death appears to have occurred after the circulation of the draft opinion to the panel and while the draft opinon was under circulation to the full court, see Third Circuit IOP 5.5 & 5.6 (providing for an 8 day period prior to filing of precedential opinion for the full court to review the draft panel opinion), but the rationale of Banmiller -- that the vote "does not become effective until the opinion is filed" -- is exactly on point.

I wrote a bit about this issue, in a somewhat different context, criticizing the practice of the Supreme Court of New Jersey of counting the votes of justices after their retirement.

Ties in the Supreme Court of New Jersey, 32 Seton Hall Law Review 735 (2003):

[I]t might be argued that these cases were actually decided when the justices voted in conference, making the date of the vote in conference the relevant date. See United States v. American-Foreign S.S. Corp., 363 U.S. 685, 694 (1960) (Harlan, J., dissenting) (stating that the "exact point of time when a case is 'determined"' varies from case to case and is known "only to the judges themselves," and arguing that if "all argument, reflection, deliberation, and explication" have been completed and an opinion filed with the clerk the morning after the retirement of a judge, that judge's vote should be counted). On this view, so long as the conference vote took place before the justice retired, it would be proper to count his or her vote.

The federal courts have rejected this approach, and for good reason. The majority in American-Foreign Steamship treated the date on which the decision was issued as the relevant date in determining the court's legitimate membership. Id. at 686, 688-91 (holding, under then-existing statutes that limited in banc decisions to active judges, that a judge who retired from active service after the case had been submitted to the in banc court but before the decision was issued, could not participate in the in banc decision). Conference votes are inherently tentative; a vote does not become effective until the decision is filed or announced. See United States v. Banmiller, 310 F.2d 720, 736 (3d Cir. 1962) (in banc) (holding that the vote of a judge who participated at conference but died before the opinion was filed could not be counted); Mayor of Baltimore v. Mathews, 562 F.2d 914 (4th Cir. 1977) (in banc) (counting the vote of a judge who had "concurred in the judgment and approved the language of Parts I and II of the majority opinion" but "died before the filing of the opinions"), withdrawn on reh'g, 571 F.2d 1273, 1276 (4th Cir. 1978) (holding that the deceased judge's approval of the draft opinion "cannot be tallied for the purpose of deciding the appeal"); Cramer v. Fahner, 683 F.2d 1376, 1378 n.* (7th Cir. 1982) (noting that a judge who had heard the oral argument, voted to affirm, and concurred in a suggested opinion but died prior to reviewing the partial dissent, was "succeeded on the panel" by another judge); see also Terri Jennings Peretti, In Defense of a Political Court 110 & 289 n.229 (1999) (noting studies of various periods in the Supreme Court of the United States showing that approximately 14% of the time the initial vote of a justice differed from his ultimate vote).

It is sometimes said that the Supreme Court of the United States counted Justice Grier's vote in Hepburn v. Griswold, 75 U.S. 603 (1870), even though he had retired effective January 31, 1870, and the opinion was announced on February 7, 1870. See, e.g., Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials 235 (4th ed. 2000) (asking whether "we would today count the vote of a justice in similar circumstances"); David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. Chi. L. Rev. 995 (2000) (stating that "Chief Justice Chase was intensely committed to using Grier's vote to support a majority decision" despite "Grier's demonstration of mental incapacity during the conference discussion"); Knox v. Lee, 79 U.S. 457, 572 (1871) (Chase, C.J., dissenting) (describing Hepburn as decided by a vote of five to three). In Hepburn, the opinion of the court recited, "It is proper to state the Mr. Justice Grier, who was a member of the court when the case was decided in conference, and when this opinion was directed to be read ... concurred in the opinion" that the legal tender clause, as construed by the other judges, was unconstitutional. Id. at 626. This can plausibly be read as simply a notation of Justice Grier's views, even though his vote did not count. Cf., e.g., Mayor of New York v. Miln, 36 U.S. 102 (1837) (Story, J., dissenting) (noting that "the late Mr. Chief Justice Marshall" had heard the arguments in the case at an earlier term and that "his deliberate opinion" coincided with Justice Story's); United States v. Turner, 130 F.3d 815, 816 n.1 (8th Cir. 1997) (noting that a judge had died after oral argument and that the opinion "is consistent with his vote at the panel's conference"). If Grier is not counted, there were seven participating justices, and the decision was four to three. Thus Grier's vote was not necessary to make the Chief Justice's opinion an opinion of the Court. Moreover, the paragraph about Justice Grier's views comes at the very end of the opinion, after the paragraph concluding that the judgment under review must be affirmed. Thus there is reason to doubt, despite the protestations of Chief Justice Chase when Hepburn was overruled, that Justice Grier's vote did count in Hepburn. See Charles Fairman, 6 The Oliver Wendell Holmes Devise History of the Supreme Court of the United States 677 (1971) (describing Hepburn as decided by Chief Justice Chase, joined by Justices Nelson, Clifford, and Field, over the dissent of Justices Miller, Swayne, and Davis); Bernard Schwartz, A History of the Supreme Court 157 (1993) (stating that when Hepburn was decided, the "Supreme Court consisted of only seven members"); Robert H. Jackson, The Struggle for Judicial Supremacy 42 (1941) (stating that "[b]efore the decision was announced, Grier resigned, and the score was announced 4 to 3"); cf. Finishing Inc. v. Di-Chem, 419 U.S. 601, 617 (1975) (Blackmun, J., dissenting) (describing Hepburn as "assertedly" decided by a five to three vote). Even if Hepburn is read as supporting the counting of a vote when the judge retires before the decision is announced, it simultaneously illustrates the danger of such a practice. Hepburn was overruled a year later, and the entire episode is regarded as "ignominious and embarrassing." Garrow, supra, at 1005; see also Di-Chem, 419 U.S. at 618 (describing Hepburn as producing "prompt reversal of opinion, embarrassment, and recrimination").

Yet even if one were inclined to think that the federal courts were wrong to reject this approach, the practice of the New Jersey Supreme Court is inconsistent with viewing the case as decided on the date of the conference vote, with the retired justice taking no action after that date. As a formal matter, the decisions on their face explicitly state the date on which the case was 'decided,' without any notation regarding a conference vote. In addition, it can hardly be said that a retired justice's participation ended with the vote at conference if he or she later delivers the opinion of the court. Indeed, a justice has participated in the rehearing of a case after his retirement and the appointment of a successor. McGlynn v. N.J. Pub. Broadcasting Auth., 88 N.J. 112, 439 A.2d 54 (1981); see also N.J. State Chamber of Commerce, 82 N.J. at 108, 411 A.2d at 193 (motion seeking an extension of time to implement the judgment apparently considered by justices who were on the court when the case was argued, even though their successors were on the court when the motion was made).

Thus the New Jersey Supreme Court's practice must be rooted in the third and final ground: so long as a judge is on the court when the case is argued and submitted, he or she can participate in the decision (even on rehearing). What other office works this way? Could a governor issue a pardons after his term has expired, simply because he was already considering the pardon application beforehand? Could a legislator vote for a bill after his term has expired simply because he introduced it and sheparded it through committee? Could a justice whose initial seven year term expired, but was not reappointed, continue to decide cases? Note that the Supreme Court of New Jersey, unlike the Supreme Court of the United States since the Judiciary Act of 1925, does not have a practice of deciding all argued cases before the end of a term or setting them for reargument the following term. More than a year can elapse between the date of argument and the date of decision. For example, in State v. Marshall, 148 N.J. 89, 690 A.2d 1 (1997), the New Jersey Supreme Court heard argument on January 16, 1996, but did not decide the case until March 5, 1997. In State v. Loftin, 157 N.J. 253, 724 A.2d 129 (1999), it heard argument on March 18, 1997, and decided the case nearly two years later on February 1, 1999. See also, e.g., State v. Papasavvas, 170 N.J. 462, 790 A.2d 798 (argued Oct. 24, 2000, decided Feb. 14, 2002). As a result, to allow a retired justice of the New Jersey Supreme Court to participate in a decision simply because he or she was on the court when the case was argued or submitted would empower that justice to participate in a decision years after retirement with no outside time limit at all.

Posted 12:24 PM by Howard Bashman

Email from Marty Lederman, sent Thu 5/25/2006 8:54 AM:

Brian's e-mail, citing the Mathews case (which Brian litigated for DOJ!), is very useful for helping think through the procedural question. But I'm not sure Mathews is dispositive here.

Mathews -- and the Supreme Court's American Foreign S.S. Corp. decision cited therein -- does suggest that the question is (at least) a statutory one, putting aisde for a moment any issues raised by Article III. And the statute in question is 28 USC 46(b). Those of you who are interested in the minutiae can peruse the details below, but I'll repeat my tentative conclusion here:

In the Petruska case, as a matter of Third Circuit internal rules, the panel members had had their final say -- the time had passed for each of them to respond to the others' opinions and possibly change their votes -- and the entire court of appeals (i.e., all active judges) had reviewed the opinions and declined to call for en banc review. The only thing missing was the apparently pro forma administrative process of having the Clerk issue the opinions. All argument, reflection, and deliberation were completed, and no "meaningful things in the process of adjudication" remained to be done. This distinguishes the case from Mathews and American-Foreign S.S. Co., and therefore I think it is fair to say that the "determination" of the case occurred before Judge Becker's death -- which is all that the relevant statute requires.

* * * *

Apparently, there was once a practice in the courts of appeals of assigning cases to panels of two. Congress wished to curtail that practice, and so it enacted a law (now 28 USC 46(b)) stating that "In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges." The courts of appeals have unanimously held that section 46(b) was not intended to preclude disposition by two judges in the event that one member of a three-judge panel to which the appeal was assigned became unable to participate before "determination" of the case. See, e.g., U.S. v. DeSimone, 140 F.3d 457 (2d Cir. 1998). But in most such previous cases involving pre-decisional death or retirement, the remaining duo has been in agreement, and thus the cases were determined by the remaining majority of the original panels.

Here, of course, we don't have that situation, because the two living judges are split 1-1. Therefore, for purposes of 28 USC 46(b), whether Becker's vote can be counted would appear to turn on the question of the date of the "determination" of the case. If the case was not "determined" until yesterday (May 24th), then it should be a 1-1 vote, thus presumably requiring rehearing by a new panel. If on the other hand the case was "determined" after panel submitted its opinions to the Clerk but before Judge Becker died (the afternoon of May 19th), then his vote could count under section 46(b).

So what is the date of "determination" of the case? The statute doesn't say. (And I haven't searched for legislative history.) There are many possible options. It could be the date on which the mandate is issued -- but that wouldn't make a lot of sense, because that might not occur until the full court denies a petition for rehearing, which could take months, and it doesn't make much sense to require rehearing the case by a new panel if one member of the majority dies or retires while the full court is considering an en banc petition.

In American-Foreign S.S. Co., the Court, in construing a separate provision in 28 USC 46 (the one dealing with composition of an en banc court), held that "[a] case or controversy is 'determined' when it is decided." 363 U.S. at 688. That's not terribly helpful here, however, because it doesn't tell us when, exactly, a case is "decided." In American-Foreign itself, the en banc deicision was issued five monhs after Judge Medina had "retired," and the Court implies that he deliberated with the court of appeals on the decision after his retirement. In dissent, Judge Harlan understands the majority to have chosen "the date of announcement of a decision as the date of 'determination' of the cause." Id. at 694. But the majority never actually says that "announcement" is determinative; and, more importantly, the majority in American-Foreign obviously had no occasion to consider whether a case is "detemined" or decided in the situation we have in this week's CTA3 decision -- after the panel files its opinions with the clerk but before the clerk issues them.

Harlan's own view (joined by Frankfurter and Brennan) is instructive here, I think. He wrote that "[t]he exact point of time when a case is 'determined' is, as all informed lawyers know, a question whose answer varies from case to case, and which is known in a particular instance only to the judges themselves. Certainly, if an opinion--all argument, reflection, deliberation, and explication having been completed by a court composed of active judges only--is filed with the clerk of the court on the morning following the retirement of one of its members, no policy remotely discernible in section 46(c) can justify a requirement that his vote in the case should not be counted. If any such policy can be thought to be reflected in the en banc statute, it should not be taken as requiring more than that a judge, whose retirement comes at a time when meaningful things in the process of adjudication still remain to be done, must withdraw from further participation. But where such is not the case, the statute should not be thought to require a precipitous termination of judicial affairs and the undoing of adjudications properly made. In the nature of things the effectuation of such a policy should be left with the various Courts of Appeals." Id. at 694-695.

This makes a lot of sense, in my view, and it's not clear that the majority rejected it. In that case, presumably Judge Medina did engage in argument, reflection, and deliberation after he retired, i.e., "meaningful things in the process of adjudication" remained to be done after his retirement. To like effect are several cases in which a judge's vote has not been counted when he has died after the conference, and after his intial vote -- indeed, in one case even after he joined a draft opinion -- but before he has had a chance to consider any draft concurrences or dissenting opinions. In addition to the Mathews case cited by Brian, see, e.g., U.S. v. Banmiller, 310 F.2d 720, 736 (3d Cir. 1962) (vote of a judge who participated at conference but died before the proposed opinion was circulated and before final opinion was filed could not be counted); Cramer v. Fahner, 683 F.2d 1376, 1378 n.* (7th Cir. 1982) (noting that a judge who had concurred in a proposed majority opinion but who died before reviewing a partial dissent was "succeeded on the panel" by another judge).

In Harlan's view, a case would be "determined" even if the opinions are filed the morning after a retirement (or death). And there are at least a couple of cases that support that view. See, e.g., Association of Nat'l Advertisers v. FTC, 627 F.2d 1151, 1154 n.* (D.C. Cir. 1979) (noting that Judge Leventhal, who was the swing vote in the case but died more than a month before the decision was issued, "died after completing his opinion in this case but before it was sent to the court's printer for publication"); Hillsdale College v. HEW, 696 F.2d 418, 419 n.* (6th Cir. 1982) (noting that Judge Cecil, whose vote was determinative but who died 20 days before the decision was issued, "concurred in this opinion prior to his death").

We don't need to reach that question here, however, because presumably Becker's opinion was filed with the Clerk before he died last week.

Does that mean that all argument, reflection, and deliberation were completed, and that no "meaningful things in the process of adjudication" remained to be done? Under the Third Circuit's Internal Operating Procedures, that appears to be the case. IOP 5.5.3(b) states that "[p]anel opinions are not considered to be completed until each member has an opportunity to revise his or her opinion in response to those of other panel members." That presumably happened in the Petruska case. Indeed, even more than that presumably happened. IOP 5.5.4 provides that in the case of a draft opinion, such as this one, that is not unanimous, the opinions are to be "circulated to all active judges of the court after the draft opinions have been transmitted," and "[n]on-panel active judges must notify the authoring judge within eight (8) days if they desire en banc consideration." Only then, after that eight-day period has passed, and if "insufficient votes for rehearing are received," do the authoring judges submit the typescripts to the Clerk for filing. IOP 5.6.

That is to say: In the Petruska case, as a matter of Third Circuit internal rules, the panel members had had their final say (pending any petition for rehearing by the losing party), and the entire court had reviewed the opinions and declined to call for en banc review. The only thing missing was the apparently pro forma administrative process of having the Clerk issue the opinions. All argument, reflection, and deliberation were completed, and no "meaningful things in the process of adjudication" remained to be done. This distinguishes the case from Mathews and American-Foreign S.S. Co., and I think it is fair to say that the "determination" of the case, for purposes of 28 USC 46(b), occurred before Judge Becker's death. The same thing is true in another recent Third Circuit case decided by a 2-1 vote, Monteiro v. City of Elizabeth, in which the first footnote reads: "The Honorable Max Rosenn, Sr. submitted this opinion to the Clerk's office for processing on February 2, 2006. Prior to the filing of the opinion, Judge Rosenn passed away." (Of course, the panel members could always change their minds and vote for reconsideration, even after the panel decision is issued. But as noted above, I don't think it makes sense to construe the statute to say that a case is not "determined" until after all peititons for rehearing have been rejected. I think everyone would agree that if a judge dies after an opinion is issued but before a petition for rehearing is considered, the judge has properly participated in the "determination" of the case.)

I would only add that, if the case was "determined" before Judge Becker's death for purposes of the statute, I can't imagine that Article III's reference to "the judicial power" would itself impose any more restrictive rule as a matter of constitutional law.

Posted 10:30 PM by Howard Bashman

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May 22, 2006

CRITICISM MOUNTS THAT JUDICIARY LACKS SELF DISCIPLINE
Congressman Wants An Inspector General To Ensure Unethical Judges Are Punished

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - It's been 10 years since a California federal judge helped the judiciary brush off calls for an independent ethics watchdog.

Now, thanks in part to criticism of the 9th U.S. Circuit Court of Appeals' handling of an ethics complaint against a Los Angeles jurist, momentum is again building in the Republican-led Congress to put the judiciary under the watchful eye of an inspector general.

Supporters say the judicial branch has proven incapable of policing itself and that independent oversight is needed to hold misbehaving judges to account.

But most judges remain staunchly opposed and see the move in Congress as a threat to their independence. Supreme Court Justice Ruth Bader Ginsburg, a Clinton appointee, called the proposal "a really scary idea" earlier this month.

Former U.S. District Judge Lourdes G. Baird of Los Angeles hasn't changed her mind since she was chairwoman for the federal Judicial Conference panel that panned the idea in 1996.

"I don't think we've gotten to the point that an inspector general is required," she said in an interview last week.

But times have changed, and the judiciary has found itself under attack from Congress over the last year. Rep. F. James Sensenbrenner Jr., R-Wis., the chairman of the House Judiciary Committee, is one of the judiciary's leading critics.

He introduced a bill last month that would set up an office of inspector general to investigate and recommend discipline for "some federal judges who have carelessly ignored the ethical guidelines established," as he put it.

Sensenbrenner's initial target was judges who accept free trips paid for by private institutions with links to lobbyists. For years, the judiciary has resisted banning so-called judicial junkets despite criticism they create conflicts of interest for sitting judges.

But now there's apparently a new item on Sensenbrenner's radar: The federal judiciary's reluctance to discipline judges - more specifically, the 9th Circuit's refusal to discipline Los Angeles District Judge Manuel L. Real.

Real, a 40-year veteran of the bench, was accused by a lawyer in 2003 of giving special treatment to an "attractive" woman he supervised on probation for financial fraud. A circuit disciplinary panel at first concluded that Real had acted improperly - and later reversed itself.

A national judicial panel then reviewed the complaint about Real and some members concluded it deserved closer scrutiny. But the panel said it was powerless to take further action unless Congress changes the law.

"[It] does make a compelling case for why an IG [inspector general] is needed, and I expect Mr. Sensenbrenner and other members to cite it when discussing this bill," said Sensenbrenner's spokesman, Jeff Lungren.

At least one 9th Circuit judge saw this coming seven months ago when he wrote a fiery dissent to the refusal of his colleagues to discipline Real.

"If we don't live up to this responsibility, we may find that Congress - which does keep an eye on these matters - will have given the job to somebody else, materially weakening the independence of the federal judiciary," Alex Kozinski wrote.

Some judicial insiders are worried there is a hidden agenda behind the inspector general proposal. They note that Sensenbrenner has a history of publicly attacking judges he disagrees with.

In 2002, he chided the 6th Circuit's method for selecting a three-judge panel to hear a high-profile affirmative action university admissions case in Michigan.

In the same year, he wrote a letter to the chief judge of the 7th Circuit complaining about a soft sentence handed down in a drug case.

Sensenbrenner has also lambasted specific 9th Circuit decisions, including the 2003 ruling that banned the Pledge of Allegiance in public schools, and he has criticized the court for being too lenient on illegal immigrants. He is one of the leading advocates for splitting the 9th Circuit into two smaller circuits.

Carl Tobias, a law professor at the University of Richmond, said judges rightly cringe at the notion of being supervised by the other branches of government. Normally, he pointed out, inspector generals are assigned to government agencies that are under the purview of the executive branch.

But even those who think the inspector general proposal is too far-reaching acknowledge that the existing federal judicial discipline system is weak.

Data complied by the Administrative Office of the Courts shows that in the 12 months leading up to September 30, 2005, the federal judiciary fielded 642 complaints against judges.

Of those, 275 alleged bias, 206 alleged abuse of power, and 51 alleged corruption.

There were 122 complaints in the 9th Circuit, with the majority alleging bias or abuse of power.

During that same period, the administrative office's figures show, no judges were either privately or publicly censured, none were temporarily suspended from taking cases, and none were referred to the judicial conference.

Public interest lawyer Douglas Kendall, who heads Washington-based the Community Rights Counsel, said a number of those complaints probably came from disgruntled litigants. Nevertheless, he said, it is "startling how infrequently action is taken."

Baird, who now works for JAMS, the alternative dispute resolution firm, said the federal judicial discipline system pales in comparison to California's judicial watchdog agency.

California was the first state to set up a permanent body to address judicial misconduct when a voter referendum established the Commission on Judicial Performance in 1960. Today, most other states have their own agencies, many of them modeled on California's.

The commission consists of three judges, six members of the public and two attorneys who investigate complaints, hold hearings and mete out discipline ranging from private rebukes to permanent removal of judges.

The commission, Baird said, "is strong and follows through" on complaints, unlike the 9th Circuit, which she characterized as "not as diligent or effective."

But Tobias, Kendall and Baird agree that the federal system can be improved without sweeping legislation.

They point out that guidelines are in place to ensure that judges avoid financial conflicts of interest.

Judges are bound by the 1989 Ethics Reform Act, which provides guidance on what kind of gifts judges can accept and disclosures they should make.

Adherence to these rules has become an issue in recent battles over the nominations of new Supreme Court Justice Samuel A. Alito Jr., and Judge Terrence Boyle, who is awaiting confirmation to the 4th Circuit.

Boyle bought General Electric stock while presiding over a case involving the company, according to media reports, while Alito ruled on a case involving an investment group, Vanguard, which managed some of his personal investments.

Kendall suggested that Sensenbrenner could hold congressional hearings on his inspector general proposal to put a spotlight on unethical behavior and "prod the judiciary along."

Posted 8:55 PM by Howard Bashman

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May 17, 2006

SENATE GOES EASY ON MODERATE, TO ANNOYANCE OF CONSERVATIVES

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Conservative activists vented their frustration Tuesday when the Republican-led Senate rubberstamped the nomination of Los Angeles attorney Milan D. Smith Jr. to the 9th U.S. Court of Appeals while leading lights of right-wing jurisprudence wait in limbo for other vacant circuit court positions.

Although critics do not question Smith's legal acumen, they publicly lambasted him as not conservative enough and suggested he got special treatment because his brother, Gordon, is an Oregon senator and moderate Republican.

Amidst hyper-partisan fighting over federal judges, Smith is a rare breed. He sailed out of the Senate on a unanimous vote just three months after President Bush nominated him.

In contrast, favorites among right-wing activists such as 9th Circuit nominee William G. Myers III of Idaho, 4th Circuit nominee Terrence Boyle, and D.C. Circuit nominee Brent Kavanaugh have languished on the sidelines for years while facing filibuster threats from Democrats who have branded them as ideologues.

Myers and Kavanaugh were both nominated in 2003, while Boyle was first named in 2001.

The resentment over Smith's easy ride boiled over Tuesday.

"There's not a lot of excitement for him to go on the 9th Circuit," said Manuel Miranda, chairman of the conservative Third Branch Conference.

He said conservatives harbor "some apprehension" about Smith serving on a circuit they already regard as dangerously liberal. Miranda called Smith the weakest of Bush's three recent nominations to the court, the other two being Californian Sandra Ikuta and N. Randy Smith of Idaho.

Miranda faulted Senate Majority Leader Bill Frist, R-Tenn., for "allowing votes on the easy ones and not doing the hard lifting" to confirm more controversial nominees, such as Boyle and Kavanaugh.

Similar complaints came Tuesday from two other conservative groups, the Family Research Council and Concerned Women of America, which issued a press release describing Smith as a "liberal rookie" whose appointment took precedence over "veteran conservative nominees."

Smith, who has a law degree from the University of Chicago Law School, has spent the majority of his career as managing partner of Smith Crane Robinson & Parker, which he helped found in 1972 and where he specializes in transactional law, not litigation.

In the 1980s, he served on the California Fair Employment and Housing Commission, which oversees civil rights enforcement, as an appointee of Republican Governor George Deukmejian.

In an evaluation of his experience and fitness for a judgeship, a majority of the American Bar Association panel that rates presidential nominees recently described him as "well qualified."

But Jan LaRue, chief counsel of Concerned Women of America, said there is "no record" indicating that Smith is the kind of conservative strict constructionist that President Bush promised to nominate while on the campaign trail in 2004.

"He has never been a judge, so there's nothing to show me that he does in fact fit the president's criterion for a conservative jurist who won't legislate from the bench," LaRue said in a phone interview.

At the time of Smith's nomination, acquaintances tapped by the White House to speak on his behalf told the Daily Journal he was not ideologically driven and would approach each case on its merits.

Smith himself could not be reached Tuesday.

Insiders say Smith's impressive political connections no doubt helped him win the seat more than his legal credentials. That's especially true in the Senate, where members show great respect for recommendations from colleagues.

"It's always good to have a brother in the Senate," said Miranda, a former Senate aide to Frist.

Concerned Women of America's LaRue was less restrained, describing the confirmation as "a favor for a fellow member of the 'Good Ole Boy's Club'."

The family connection also helped win support from California's two Democratic senators, Barbara Boxer and Dianne Feinstein, in part because Sen. Smith is friendly with Boxer.

Feinstein praised Smith Tuesday, describing him as a "very competent man" and "an important part of the legal community" in Los Angeles.

Another influential senator figures into the equation: the former Senate Judiciary Committee chairman Sen. Orrin R. Hatch, R-Utah, who is probably the most prominent conservative to support Smith's nomination.

Hatch has close ties with the Smith family, in large part because of their shared membership in the Church of Latter Day Saints.

With special permission from Judiciary Committee Chairman Arlen Specter, R-Pa., Hatch presided over Smith's low-key confirmation hearing in April, during which the nominee spent more time introducing his family than defending his judicial ideology.

Richard Davis, a political science professor at Brigham Young University, said the Mormon connection with Hatch probably helped.

But Davis stressed that the speedy confirmation also signals the Bush administration is taking a more practical approach to filling the court vacancies. That means heeding recommendations from the likes of Hatch and listening to the views of the home state senators, he said.

"The nominees who reach across to the minority [party] are those that are most likely to sail through," Davis said. "The Bush administration had forgotten that."

As for conservative reaction to Smith's credentials, Davis said his resume compares well with many other low-profile nominees to the federal courts.

Posted 12:00 PM by Howard Bashman

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May. 04, 2006

Which Idahoan Has Better Shot At 9th Circuit?
Feinstein May Make Do With Smith to End Myers' Chance

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The sun may finally be setting on the Bush administration's controversial nomination of William G. Myers III to the highest federal court in the west.

But the bad news for Myers, whose ties to mining and ranching interests landed him in hot water with liberals, could signal happy days ahead for another Idaho-based nominee to the 9th U.S. Circuit Court of Appeals, N. Randy Smith.

Smith could find his passage to confirmation eased if Republicans give up on Myers, according to insiders who track judicial nominations.

California Seat
California Sen. Dianne Feinstein, a Democrat who sits on the powerful Judiciary Committee, has until now blocked a vote on Smith, a state judge and former Idaho Republican party chairman, on the grounds that the seat he would fill on the 28-member court should go to a Californian.

But there is growing speculation that Feinstein will change her tune on Smith, who appears to have no organized ideological opposition, if Smith is designated to fill the seat that was intended for Myers before his nomination stalled amid partisan bickering. That, in turn, would give Feinstein a say in choosing a nominee from California for the unfilled seat.

Myers was first nominated to the 9th Circuit three years ago, but Democrats in the Senate repeatedly threatened a filibuster to prevent a floor vote out of concern for his record on environmental issues as a lobbyist and lawyer for mining and cattle interests and later as Solicitor of the U.S. Department of the Interior in President Bush's first term.

Election Season
With election season kicking into high gear, the Republican leadership of the Senate appears to be quickly moving toward a showdown on some of the president's other stalled nominees, but party leaders are in no rush to force a vote on Myers, according to a knowledgeable source. This may make Republicans more amenable to a trade-off with Feinstein, the source said.

Feinstein has been careful not to attack Smith's credentials, giving her leeway to lift her opposition if the Bush administration decides to withdraw the nomination of Myers.

"Feinstein will do everything she can to stop [Myers]," said Sean Rushton, executive director of the Committee for Justice, a group that supports President Bush's nominees.

That would include lending her support to two other pending nominations to the 9th Circuit: Sandra Ikuta and Milan Smith, both from the Los Angeles area.

Ikuta and Milan Smith are both expected to be confirmed with wide bipartisan support.

"If she wants a deal, she will have to give something up," said Michael J. Gerhardt, a law professor at University of North Carolina Chapel Hill.

Howard Gantman, a spokesman for Feinstein, said Wednesday that the senator would like Myers' name to be withdrawn, but declined to comment on whether a deal had been discussed with Republicans.

But a leading Republican conceded yesterday that some of Bush's stalled nominees are likely to fall to the wayside.

Although Myers wasn't mentioned by name, Judiciary Committee member Jon Kyl of Arizona told reporters that he expects some trade-offs to be made.

"In order to get circuit nominees confirmed, there may be some deals made and some may drop out," he said, according to Congressional Quarterly.

The Judiciary Committee is scheduled to vote on Smith's nomination this morning.

Myers' nomination has languished since he was left out of the bipartisan agreement worked out among 14 senators last year to avoid filibuster battles.

The so-called "Gang of 14" truce allowed some nominees to be confirmed, including former California Supreme Court Justice Janice Rogers Brown, who now sits on the D.C. Circuit Court of Appeals.

Myers and one other nominee, Henry Saad of Michigan, were excluded from the pact. Saad, who has been tapped by Bush for the 6th Circuit, has since withdrawn his name from consideration.

Myers declined to comment on the status of his nomination when reached at his law office in Boise, Idaho, this week.

Sen. Patrick J. Leahy, the ranking Democrat on the Judiciary Committee, has floated the idea of Smith getting the Idaho seat on the 9th Circuit instead of Myers, who originally hails from Wyoming.

That would then free up another nominee from California to replace Judge Stephen S. Trott, who took senior status on the 9th Circuit last year. Although Trott has always kept his chambers in Idaho, Feinstein has argued that because Trott had previously served as U.S. Attorney in Los Angeles under President Reagan, Trott's seat should go to a Californian.

Some conservatives maintain, however, that Feinstein doesn't have a strong enough argument over Smith's nomination to hold much sway over Myers' fate.

Manuel Miranda, a former Republican Senate staffer who now heads the Third Branch Conference, said Feinstein's bargaining position isn't strong and "doesn't seem the kind of thing she can get away with."

Other Democrats, meanwhile, have higher-profile battles to fight.

When the Judiciary Committee meets this morning, all the focus will be on Brett Kavanaugh, a nominee to the D.C. Circuit.

Kavanaugh, staff secretary at the White House and a former member of the special prosecutor team that impeached President Clinton, is a rising star in conservative circles and, as a result, liberal activists have called on Democrats to oppose his nomination.

Nan Aron, president of the liberal group Alliance for Justice, said Tuesday that she agreed with Feinstein's position on Smith, but said she will be putting most of her energy into opposing Kavanaugh and Terrence W. Boyle, a controversial nominee to the 4th Circuit.

"It's more of an issue between senators," Aron said of the dispute over Trott's seat.

Gerhardt agreed, noting that Feinstein's opposition to Smith is "personal and territorial," while the fight over Kavanaugh is "more on principle" because of his conservative credentials.

Feinstein may struggle to win backing from her Democratic colleagues on the Judiciary Committee, according to Miranda.

"No one else, including the Democrats, are giving her much credit [for her argument]," he said.

Leahy issued a public statement this week attacking the White House's nominations strategy. Leahy outlined his opposition to Kavanaugh and Boyle.

Senate Minority Leader Harry Reid, D-Nev., warned this week that Democrats would almost certainly attempt to filibuster Boyle, and may try the same tactic with Kavanaugh.

But he did not mention Smith, or, for that matter, Myers.