Vote Delayed On Conservative Appeals Court Nominee

By Jeff Johnson | July 7, 2008 | 8:28 PM EDT

Capitol Hill ( - More than eight months after President Bush nominated him for a seat on the U.S. Third Circuit Court of Appeals, Judge D. Brooks Smith watched Wednesday as the Senate Judiciary Committee again delayed a vote on his nomination.

"I expect all members to be prepared to debate and vote this nomination next week," said Judiciary Committee Chairman Patrick Leahy (D-Vt.). "I make this announcement because I want senators to have a full and fair opportunity to consider the matter but would like to move ahead to committee consideration and a vote."

Bush nominated Smith on Sept. 10, 2001, for a seat on the federal appellate court located in Pennsylvania. As previously reported, the first hearing on Smith's nomination was held Feb. 26.

Thursday's vote was delayed in deference to Republican Sen. Arlen Specter from Smith's home state of Pennsylvania, who was unable to attend the meeting.

Smith has the support of all of the federal judges in Pennsylvania, as well as the full Pennsylvania congressional delegation. Even attorneys and defendants Smith has ruled against submitted written statements to the committee urging his confirmation.

Leahy took the opportunity, however, to blame Republicans for current vacancies on the federal bench.

"Large numbers of vacancies continue to exist on many Courts of Appeals, in large measure because the recent Republican majority was not willing to hold hearings," he claimed.

But Sen. Orrin Hatch (R-Utah), the ranking minority member of the committee, continues to dispute such claims.

"The fact is that, at the close of the 106th Congress, when I was Chairman of the Judiciary Committee, there were only 67 vacancies in the federal judiciary," he recalled earlier this month. "In the space of one Democratic-controlled congressional session last year, that number shot up to nearly 100, where it remains today."

Hatch also argues that the record proves that Republicans dealt with nominees more fairly when they controlled the Senate.

"Under Republican leadership, the Senate confirmed essentially the same number of judges for President Clinton - 377 - as it did for President Reagan - 382 - which proves bipartisan fairness," he explained, "especially when you consider that President Reagan had six years of his party controlling the Senate, and President Clinton had only two."

May 9 was the one-year anniversary of Bush's first judicial nominations at the circuit court level. Of those 11 nominees, only three had received hearing from the Democrat-controlled Judiciary Committee.

"There is a vacancy crisis in the federal judiciary, particularly on the circuit court level, where nearly 20 percent of the courtrooms have no judges," White House Press Secretary Ari Fleischer said marking the anniversary.

"The President believes that it is high time now for the United States Senate to set partisanship aside, to rise above the practice that both parties have engaged in over the last 10 to 15, 20 years, and make progress and hold hearings and hold votes on the President's nominees to the judiciary," he added.

The Judiciary Committee normally holds its business meetings on Thursdays, however, Smith's nomination could be considered as early as Monday.

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