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The loud cracking sound heard on Capitol Hill Wednesday came from the ornate chambers of the Senate, which pushed 16 judicial nominees and dozens of other Clinton appointees through a political logjam and on to their appointed offices. In doing so, the Republican-controlled Senate more than tripled the number of seats it has filled on the bench this year — for a total now of 23. There remain 65 vacancies in the nation’s federal courts; 36 nominees are awaiting action by the Senate Judiciary Committee, and the Clinton administration has yet to name successors for the remaining seats. With Wednesday’s votes, the confirmation process may be gaining a small measure of momentum: The Judiciary Committee today is set to review four more nominees, but it remains to be seen how many will get voted on before the Senate adjourns sometime this fall. [The nominees being heard by the Judiciary Committee today are: Bonnie Campbell of Iowa (8th Circuit); Jay Garcia-Gregory (District of Puerto Rico); Beverly Martin (Northern District of Georgia); and Laura Taylor Swain (Southern District of New York).] The approval of 16 new judges came only after a deal between the parties that cleared away a stalemate over a Republican choice for the Federal Elections Commission, Bradley Smith. Many Democrats and some Republicans, including reform-minded John McCain of Arizona, fought the nomination because of Smith’s public comments against limits on campaign contributions. The Democratic opposition led to a Republican freeze on dozens of Clinton appointees, including judges. After weeks of bitter wrangling between Senate Majority Leader Trent Lott and Minority Leader Tom Daschle, the two struck a deal late Monday that sent Smith, the judges, and other appointees to the floor. Senators then spent 10 hours Tuesday and Wednesday debating the nominations of Smith for the FEC and two of the would-be judges: Timothy Dyk for the Federal Circuit and Gerard Lynch for the Southern District of New York. Interestingly, the debates over Smith resembled those over the judges, with senators dueling over a nominee’s rights to disagree with the U.S. Supreme Court or Founding Fathers. McCain and Democrats pounded on Smith’s newspaper articles arguing that the First Amendment prohibits government limits on campaign contributions. “It is hard for me to understand how he would hold views that the U.S. Supreme Court, in their appointed duties, has ruled as constitutional,” McCain said, referring to the Court’s 6-3 decision in January in Nixon v. Shrink Missouri Government PAC, which upheld campaign contribution limits. Smith’s chief supporter, Sen. Mitch McConnell of Kentucky, responded that Smith’s articles were being quoted out of context. “It is clear that Professor Smith is only talking about the contribution limits in the Federal Election Campaign Act,” McConnell said. “On that point, he is in pretty good company: Chief Justice Warren Burger and Justice Hugo Black also held that view. Justices Scalia and Thomas hold that view.” The Senate voted 64-35 to approve Smith. Sen. Jeff Sessions, R-Ala., spoke against Lynch, a former federal prosecutor and a law professor at Columbia University. Sessions said Lynch would be an “activist” on the bench, like the late Supreme Court Justice William Brennan, for whom Lynch clerked. Sessions quoted a 1984 article by Lynch in which the nominee wrote, “The Supreme Court, because it is free of immediate political pressures of the sort that press on those who must face the voters, is better placed to decide whether a proposed course of action that meets short-term political objectives is consistent with the fundamental moral values to which our society considers itself pledged.” Said Sessions: “That is a very risky, dangerous statement,” noting that Brennan, in his later years on the Court, opposed every death sentence presented to the Court on the grounds that the death penalty violated contemporary standards of morality, and therefore the constitutional guarantee against cruel and unusual punishment. Lynch’s sponsor, Sen. Charles Schumer, D-N.Y., broke in and reminded Sessions that Lynch had said at his confirmation hearing that he was not opposed to the death penalty. The Senate voted 63-36 to approve Lynch. Sessions also opposed Dyk. He argued that judges on the 12-member Federal Circuit had some of the smallest caseloads in the country and the court thus did not need to fill its one current vacancy. “I suggest that we not approve this judge, not because he is not a good person but because we don’t need to burden the taxpayers with $1 million a year for the rest of his life to serve on a court that doesn’t need another judge,” said Sessions. Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee, responded that it wasn’t fair to compare the Federal Circuit’s caseload with other circuits because it handles complex patent and other intellectual property cases. Sen. Bob Smith, R-N.H., argued that he’d vote against Dyk because he had represented the People for the American Way in a suit against the Texas Board of Education over the board’s rule that evolution be taught as “only one of several explanations of the origins of mankind.” “People for the American Way is pretty much a liberal activist, anti-Christian group that seeks to rid public education of any mention of God at all in its educational language and literature, or in schools,” said Smith. Leahy responded that Dyk-who was originally nominated in 1998-was supported by a bipartisan group ranging from the U.S. Chamber of Commerce to the Anti-Defamation League. The Senate voted 74-25 to approve Dyk. The Senate voted on two other relatively controversial nominees, Mary McLaughlin for a seat in the Eastern District of Pennsylvania, and James Brady for a seat in the Middle District of Louisiana. It approved McLaughlin, a partner at Philadelphia’s Dechert Price & Rhoads who’d been criticized for her legal work against abortion protesters, 86-14. It approved Brady, a Democratic National Committee member, lobbyist, and partner at Gordon, Arata, McCollam, Duplantis & Eagan of Baton Rouge, La., 83-16. The Senate also approved the other 12 judges by unanimous consent: Appellate judge Richard Tallman (9th Circuit) and trial judges Phyllis Hamilton (Northern District of California); James Whittemore and John Antoon (Middle District of Florida); Marianne Battani and David Lawson (Eastern District of Michigan); Nicholas Garaufis (Eastern District of New York); Kent Dawson and Roger Hunt (District of Nevada); Berle Schiller, Richard Surrick, and Petrese Tucker (Eastern District of Pennsylvania).

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