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The new political landscape of the Senate Judiciary Committee came into view last week, as liberal opposition to two controversial judicial nominees collapsed. But with as many as three new Judiciary Committee members arriving in January, the impact of a change in party control will resonate well beyond the fight over the federal bench. From movie piracy and asbestos litigation to secret wiretaps, incoming Chairman Sen. Orrin Hatch (R-Utah) is likely to have a major impact on security, the economy, and the justice system. Senate staffers and advocates say that restoring Hatch to leadership is going to make a big difference — especially if the floodgates open for President George W. Bush’s judicial nominees next year. But unlike judicial nominations, which have prompted fierce bouts of partisanship, many of Judiciary’s legislative issues toss traditional notions of ideology to the wind. Senators from both parties are likely to cooperate on a number of initiatives. For example, Hatch, who is a part-time songwriter, often takes the side of creative artists in their constant copyright battles with record companies and motion picture studios. Hatch has worked closely with Judiciary member Dianne Feinstein (D-Calif.) on a comprehensive bill to toughen penalties and loosen the rules of evidence against criminals who victimize children. And Sen. Patrick Leahy (D-Vt.) held hearings this past September on the excesses of asbestos litigation, which business interests and others say has morphed into a plaintiff lawyers’ feast of junk science. Leahy has long cooperated with Sens. Charles Grassley (R-Iowa) and Arlen Specter (R-Pa.) in overseeing the Foreign Intelligence Surveillance Act court, the little-known body that passes on national security wiretaps. These committee veterans will be joined by up to three fresh faces, as Sen. Strom Thurmond (R-S.C.) is retiring, Sen. Mitch McConnell (R-Ky.) is expected to forsake his spot on the committee when he becomes majority whip, and Sen. Maria Cantwell (D-Wash.), who only joined the committee when the Democrats took control in 2001, will likely be the one to go when the Democrats reduce their number on the 19-member panel to nine. There is also a possibility that the GOP may shrink the committee’s size. Some incoming Republican senators who have been mentioned as possible replacements include John Cornyn, a former Texas state supreme court justice and attorney general, and Lindsey Graham of South Carolina, who served on the House Judiciary Committee. Among the issues likely to emerge on the Judiciary agenda in 2003: • Judicial nominations. The unusual lame-duck committee meeting on Nov. 14 — when the committee approved the contested nominations of Dennis Shedd for the U.S. Court of Appeals for the 4th Circuit and Michael McConnell for the 10th Circuit — will probably be merely the first of many good days for the administration on the judges issue. (Late last week, the full Senate confirmed more than a dozen new judges, including Crowell & Moring partner Rosemary Collyer for the U.S. District Court for the District of Columbia.) D.C. Circuit nominee Miguel Estrada’s stalled bid for the bench has new life, and defeated 5th Circuit candidates Priscilla Owen and Charles Pickering are likely to be renominated. In addition, it is considered increasingly likely that the president will get to fill a vacancy on the Supreme Court before the end of 2003. • Changes in the USA Patriot Act. The Bush administration is preparing a list of possible changes in the anti-terrorism law to increase its effectiveness. These could include new law enforcement tools to fight terrorism or new provisions for secrecy of government information, but they have not yet been reduced to legislative form. Committee support would depend on how drastic the administration’s proposals will be. • High-tech and intellectual property issues. The software, recording, and motion picture industries want to beef up copyright and anti-piracy laws to combat illegal copying that they say is damaging their businesses. Hatch will prove a pivotal player on any legislative proposals in this area. Says Gigi Sohn, president of Public Knowledge, a public interest group that often opposes these industries: “There will definitely be [committee] activity, since the industries want a legislative fix to their copy protection issues. But I am not sure that anything will pass. With Orrin Hatch in power, the change to Republican control may be something of a wash.” This is an area where cooperation, rather than ideology, dominates the committee. On technology issues, says Leahy spokesman David Carle, “Senator Hatch and Senator Leahy have always been partners in enacting landmark legislation, such as the Digital Millennium Copyright Act,” a 1998 law that attempts to preserve copyrights in cyberspace while granting limited exemptions to Internet service providers. • Asbestos litigation reform. At Leahy’s September hearing, former Clinton Acting Solicitor General Walter Dellinger, now a partner at O’Melveny & Myers, testified that because of erroneous court decisions in mass asbestos cases, “judicial resources and defendant assets are diverted from the truly sick claimants who need them most.” Plaintiffs lawyer Fred Baron of Dallas’ Baron & Budd, speaking on behalf of the Association of Trial Lawyers of America, defended the tort system, saying it “has proven, over the past decade, that it can deliver benefits in a reasonably short period of time to the hundreds of thousands of asbestos victims who have filed for and received compensation. . . . This system is working for the vast majority of injured victims.” Carle says Leahy is simply exploring the issue and has not made up his mind on any proposed reforms. Joe Rubin, director of congressional affairs for the U.S. Chamber of Commerce, says that although there is no specific proposal now on the table, “there are discussions involving members of both parties, the business community, and the White House to find a consensus on what is doable.” • Medical malpractice reform. This past September, the House of Representatives passed a bill to limit noneconomic and punitive damages to $250,000, but the Senate took no action, despite efforts by Sen. McConnell to attach a provision to an unrelated prescription drug bill. The medical malpractice issue is high on the wish list for the Chamber of Commerce. Kate Sullivan, the chamber’s director of health care policy, notes that in some areas of the country it is hard to find an obstetrician or an orthopedic specialist because of soaring insurance premiums. “This issue played very big on the campaign trail,” says Sullivan. “Beyond doctors, it includes hospitals and medical device manufacturers as well.” But a GOP Senate aide says that even if a bill gets out of committee, it is unlikely to pass the Senate without a filibuster-proof majority. “We’ll try, but with the money from the trial lawyers and the labor unions, the Democrats will not go down without fighting,” this aide says. • Death penalty reform. This reform comes from the liberal side. The Innocence Protection Act is intended to eliminate the chance that innocent people will be executed. It would improve access to DNA testing by convicted offenders and help states improve the quality of legal representation in capital cases. The bill was approved by the Judiciary Committee in July by a 12-7 vote, with Sens. Specter and Sam Brownback (R-Ky.) joining all committee Democrats. Hatch is opposed to the Innocence Protection Act, but Leahy and a coalition of death penalty opponents are expected to bring it up again in 2003. Thomas Susman, a former Judiciary staffer and frequent lobbyist at the panel, says that, in general, the change in party control will make much less difference on legislative matters than on nominations. “Leahy, as chairman, was often accommodating [to the opposing party] on substantive issues, and so was Hatch when he was chairman,” says Susman, a partner at the D.C. office of Ropes & Gray. “They have worked together well on IP issues and on some criminal issues. So I don’t foresee much gridlock on the committee.”

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