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Crowell & Moring partner Rosemary Collyer is enjoying a short and easy trip toward confirmation for a judgeship on the U.S. District Court for the District of Columbia. Nominated just two months ago, the D.C. labor lawyer had an amicable hearing before the Senate Judiciary Committee on Oct. 7. The next day, the committee voted its approval and sent her name to the Senate floor. Her experience stands in stark contrast with that of Dennis Shedd, a district judge from South Carolina tapped for the Richmond, Va.-based U.S. Court of Appeals for the 4th Circuit. Nominated 17 months ago when the GOP still controlled the Senate, Shedd was supposed to have had a committee vote along with Collyer and 16 other judicial nominees on Oct. 8. But the previous evening, committee Chairman Patrick Leahy (D-Vt.) pulled the name of the former aide to Sen. Strom Thurmond (R-S.C.) off the agenda. This put Shedd back into limbo, and put Senate Republicans into a state of barely controlled fury over what has become a two-tiered system for dealing with President George W. Bush’s judicial nominees: one for relatively low-flying trial court seats and another for the most controversial selections to the circuit courts of appeal. “I was hurt and disappointed by your action,” Thurmond told Leahy in the packed hearing room. “You assured me that Judge Shedd would get a vote. That’s all I ask of you in what is probably my last appearance at this committee.” Thurmond, whose 100th birthday is Dec. 5, is retiring from the Senate. “It is an unprecedented slight for this committee to be denied the opportunity to vote on this nomination,” a seething Sen. Orrin Hatch (R-Utah) chimed in. Leahy replied that it was simply a matter of efficiency. There wasn’t enough time. “I knew there would be extended debate on Shedd,” the chairman said. “With the Iraq debate on the floor, I was concerned that we’d never get a vote on Shedd or on anyone else. This is a decision I had to make.” But there was more to Leahy’s decision. TAKEN TO THE SHEDD Shedd, like Miguel Estrada and Michael McConnell, has stirred opposition from liberal groups and senators for what they regard as his conservative views. The Democratic-controlled panel has moved slowly or not at all on controversial choices — and, in the cases of 5th Circuit picks Charles Pickering Sr. and Priscilla Owen — has voted them down along party lines. On the other hand, dozens of other prospective judges have sailed through. Although Shedd’s June 27 hearing was fairly uneventful, liberal groups including People for the American Way, the Alliance for Justice, and the Mexican American Legal Defense Fund (MALDEF), have come forward to oppose the South Carolinian. MALDEF says that as a federal trial judge, Shedd has shown “a demonstrated lack of commitment to protect the civil rights of ordinary residents of the United States.” He “has dismissed almost all of the civil rights cases that have come before him,” wrote Antonia Hernandez, MALDEF’s president and general counsel. Liberal groups point to a case in which Shedd approved a state health insurance pool’s exclusion of coverage for a man who was HIV-positive. They also note that he was unanimously reversed by the Supreme Court when he held that the federal government lacks the constitutional power to force states to protect the confidentiality of information on driver’s licenses. In addition to the time constraints facing the committee, Leahy cited the MALDEF letter and others as reasons to be “thoughtful and deliberate” in considering the Shedd nomination. Shedd’s supporters respond that the nominee earned the American Bar Association’s “well qualified” rating, that he was a well-liked chief counsel to the Judiciary Committee when Thurmond was the chairman, and that he continues to enjoy bipartisan support on the Hill, including the backing of former Chairman Joseph Biden Jr. (D-Del.) and home state Sen. Ernest Hollings (D-S.C.). But what set Senate Republicans on edge last week had relatively little to do with Shedd’s judicial record. It sprang from what the GOP sees as the Democrats’ extreme discourtesy to the venerable Thurmond and their reneging on repeated promises to put Shedd to a vote. What had been a disagreement on issues of judicial policy and constitutional law has turned downright personal. “Senator Leahy has violated Senate tradition and the rules of his own committee as part of an effort to curry favor with the liberal special interests,” wrote Sen. Rick Santorum (R-Pa.), chairman of the Senate Republican Conference. “To me, this is unbelievable,” said Hatch in an interview after the meeting. “I wouldn’t do this to a dog. What happened here today is very dishonorable.” A high-ranking GOP staffer vows further payback. “You can’t behave like this and expect to get anything done that you want,” the staffer says. “Bills that the Democrats want will be held up. It’s already started happening.” But at the Judiciary meeting, Sen. Russell Feingold (D-Wis.) placed all the blame on the Republicans because they stalled dozens of then-President Bill Clinton’s nominations in his second term. “The minority party comes here with unclean hands,” Feingold said. “In eight years in the Senate, I saw the [GOP's] constant refusal to observe the results of the 1996 election, especially when it came to nominees for the 4th and 5th circuits.” Leahy spokesman David Carle denies that the chairman has any intention to slight Thurmond. He notes that Strom Thurmond Jr., nominated at age 28, was quickly approved for the U.S. attorney slot in South Carolina and that former Thurmond aide Terry Wooten easily landed a district judgeship last year. Marcia Kuntz, a leader of the Alliance for Justice, says, “Each nominee should be judged on his or her own merits. Former staffers are no different.” Just after the Oct. 8 meeting, Hatch, Thurmond, and Sen. Charles Grassley (R-Iowa) sent Leahy a letter invoking a Senate rule to seek a special committee meeting by Oct. 11. The purpose of the meeting would be to vote on Shedd and on McConnell, a nominee for the Denver-based 10th Circuit. On Oct. 11, Leahy sent the three Republicans a letter stating he had “great respect” for Thurmond and that he will “continue working for a committee vote” on Shedd. But he did not offer a time line for a vote on Shedd or McConnell, adding that McConnell may get a second round of written questions from panel members. A day earlier, Carle had said that the timing of the votes remains up in the air because the Senate’s schedule for the rest of the year has not been set. It is unlikely that the committee will meet again before the November elections, but a lame-duck session toward the end of the year is now regarded as a certainty, and the panel could vote on judges then. Even if there is a favorable committee vote, the high-profile McConnell and Shedd nominations could still die at the end of the 107th Congress. It is by no means assured that lawmakers would schedule a floor vote for them in the waning days of the year. Meanwhile, other controversial picks such as Jones, Day, Reavis & Pogue partner Jeffrey Sutton for the 6th Circuit and Hogan & Hartson’s John Roberts Jr. for the D.C. Circuit, have not even had committee hearings and will not make it this year. ESTRADA STANDOFF The nomination of Estrada for the D.C. Circuit also hit a roadblock on Oct. 8, when the Department of Justice wrote a six-page letter to Leahy continuing to deny the senator’s request to get access to memorandums that Estrada wrote while an attorney in the solicitor general’s office. The memos were the focus of Sen. Charles Schumer (D-N.Y.) and others during Estrada’s exhaustive committee hearing on Sept. 26. Assistant Attorney General Daniel Bryant wrote that “the Committee’s request threatens the proper functioning of the Office of the Solicitor General. . . . The information currently available is more than adequate to allow the committee to determine whether Mr. Estrada is qualified to be a federal judge.” Bryant rejected several precedents that the Democrats brought forward in which similar materials were supposedly made available by the administration concerning a nominee. He wrote that those instances involved “targeted requests for very specific information.” Even without the White House’s firm stance on the documents, the chance of a vote on Estrada this year already seemed remote. Judiciary Committee members have yet to send out written questions to Estrada, the first step in a time-consuming process that must be completed before a committee vote is held.

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