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May 15, 2002 12:40 p.m. “A Silent Kill” Senate Republicans worry that another Bush judicial nominee may be in deep trouble.

n Capitol Hill Wednesday morning, there is a growing sense of alarm among Republicans that another of President Bush's appeals-court nominees is headed for a difficult time, and possibly even defeat, in the Senate Judiciary Committee.

Chairman Patrick Leahy has scheduled the nomination of D. Brooks Smith, President Bush's choice for the Third Circuit Court of Appeals, for a vote during the committee's Thursday business meeting. But it is becoming increasingly likely that Republicans will ask that the vote be delayed for a week (committee rules allow each side one automatic one-week extension). A delay request would be an unmistakable sign that Republicans are not certain they have the votes needed to approve Smith and send his nomination to the full Senate for confirmation. The committee is divided between ten Democrats and nine Republicans, which means that Smith needs at least one Democratic vote to be approved. So far, no Democrat has indicated his or her intentions on the vote.

"If we go [to a vote] this week, we'd stand a pretty good chance of him being voted down," says a key GOP aide who attended a Republican staff meeting Tuesday night at which the Smith nomination was a major topic of discussion. Republicans have become increasingly worried about what is called the "silent kill" strategy, which is a term some in the GOP use to describe Democratic opposition to Smith that has coalesced largely out of public view. "We can lose this," says another aide. "We better start raising the volume."

By that, Republicans mean they plan to use the one-week delay to make floor speeches and press statements in an effort to draw attention to the Smith nomination and perhaps convince Democrats that they will pay a political price for voting it down. "If we raise the profile, one or two of them [committee Democrats] might get cold feet," says the aide.

But at the same time, Republicans are particularly concerned by a recent article in Roll Call, the Capitol Hill newspaper, which reported that Democrats have determined they will not pay a political price for killing the president's judicial nominees. Roll Call reported that during a recent party retreat in New York City, pollster Mark Mellman presented the results of a survey which showed voters do not have strong feelings about the judicial-nominations issue. According to Roll Call, when those polled heard the statement, "Democrats in the Senate are not confirming President Bush's nominees to the federal judgeships quickly enough," just 11 percent said they were seriously concerned about the problem. "Never have so few people been concerned about an issue," Mellman told the paper. "This is the flattest issue there is."

Unlike the appeals-court nomination of Charles Pickering, which was killed by committee Democrats two months ago, the Smith case has attracted relatively little attention in the press. At first, Democratic objections focused on a 1997 court case, SEC v. Black, which involved a bank where Smith's wife was an executive. Smith, who is a federal district judge in Pennsylvania, was assigned the case and handled pre-trial motions before recusing himself, and Democrats have accused him of waiting too long to remove himself from the case. Other Democratic objections have included his membership in an all-male hunting and fishing club, his past criticism of the Violence Against Women Act, and his attendance at corporate seminars.

In addition, committee Democrat Charles Schumer has recently pressed Smith to endorse the Supreme Court's reasoning in a 1965 case, Griswold v. Connecticut, which concerned sexual-privacy rights and formed the foundation for the Court's decision in Roe v. Wade. In correspondence with Schumer, Smith has pledged that he will faithfully follow the Griswold precedent but has declined to give his opinion on the Court's reasoning in the decision — reasoning that some legal scholars consider seriously flawed.

Schumer's questions have been particularly troubling to Republicans. "He's gone beyond whether a person has the judicial temperament, that is, will he follow the law whether he agrees with it or not," says one GOP aide. "That's not good enough anymore. Now, he has moved from evaluating people based on their qualifications to evaluating them on their thoughts. Schumer is setting himself up to be the thought police for the federal judiciary."

It is not clear whether those objections add up to a decisive vote against Smith. "With Pickering, there wasn't a lot there," says the GOP staffer, "but they [Democrats] thought it was enough to hide behind [and kill the nomination]." "There's even less on Smith, but they might think there's enough."