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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.
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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."
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