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After enjoying several years of relative quiet, the U.S. Court of Appeals for the D.C. Circuit is back in the cross-hairs of election-year politics. In May, two veteran judges — one appointed by a Democrat, one by a Republican — traded letters with a conservative senator, with each judge staking out an opposite position on whether the court needs another member. The dueling missives from Chief Judge Harry Edwards and Judge Laurence Silberman did not mention the pending nomination of Hogan & Hartson partner Allen Snyder to fill the slot vacated when Judge Patricia Wald retired last year. But Snyder, whose nomination in September 1999 drew little public notice at the time, was unquestionably the real issue. Lurking behind the genteel disagreement over caseloads and judicial personnel was the broader question of whether the Republican-controlled Senate will allow President Bill Clinton to fill a seat on the prestigious appeals court in the closing months of his administration. It’s reminiscent of the protracted fight four years ago over the D.C. Circuit nomination of Merrick Garland, then a Justice Department official. Garland was originally selected by President Clinton for a seat on the circuit in 1995, but languished until 1997. His nomination was held up by GOP senators who claimed the court wasn’t busy enough to merit another judge. In the Snyder matter, it’s clear that Silberman and Edwards were signaling to Sen. Jon Kyl, R-Ariz., and to his colleagues on the Senate Judiciary Committee their opposing views on whether the Senate should vote to confirm the nominee — with Silberman against and Edwards in favor. Silberman told Kyl that the court has barely enough appeals on its docket to keep its current set of 10 judges busy, while Edwards marshaled statistics making the case that the court’s workload has remained fairly constant over the years. (The court is authorized by law to have 12 active judges, but it has not had that many in several years, and Wald’s retirement left it with 10.) Although the Senate broke a confirmation logjam and approved 16 Clinton-appointed judges on May 24, Snyder was not among them. Snyder had a hearing before the panel May 10, but Jeanne Lopatto, spokeswoman for the committee, says a committee vote has not yet been scheduled. Sitting federal judges generally don’t take stands, especially negative ones, on nominees to their courts, and Silberman says he was only informing Kyl about aspects of the court’s workload, not discussing Snyder’s merits. “Unlike workload matters, I may not, consistent with judicial ethics, express a view on the merits of any nominee’s confirmation, including the two nominees to our court, Professor [Elena] Kagan and Mr. Snyder,” Silberman said in a faxed statement to Legal Times. Edwards agrees: “That has always been my practice. I have never weighed in on the merits of any judicial nominee.” CASELOAD QUESTIONS The entire procedure involving the letters was extraordinary. On May 5, Kyl wrote to Silberman, an appointee of President Ronald Reagan, seeking “information regarding the number of cases pending before the D.C. Circuit at the close of the past five to six judicial years.” Kyl did not write a similar letter to Edwards, who as the court’s chief judge would be the likely recipient of such a congressional inquiry. Kyl said in the letter that he specifically wanted Silberman’s assessment of “whether the present number of judges is sufficient to handle this current caseload.” This information, the senator wrote, “is relevant to matters that might come up on short notice,” a clear reference to the Snyder nomination. Kyl’s chief of staff, Laurie Fenton, did not return a call. On May 9, Silberman responded in a brief letter, citing data showing a precipitous drop in the court’s backlog of cases between 1995 and 2000, noting that the court had canceled argument dates in both 1999 and 2000, and taking the view that “we have barely enough work to keep our present complement of active judges busy.” Silberman says he believes the court needs “certainly no more than 10 active judges.” Silberman immediately sent Edwards a copy of Kyl’s letter, along with his response. The same day, Edwards turned out a three-page response of his own to Kyl — even though the senator had not asked for Edwards to chime in. The Edwards letter noted that since the chief judge is “principally responsible for overseeing the court’s caseload” and for improving its case processing, “I am happy to offer you some additional information, beyond that which Judge Silberman has provided, to facilitate your assessment of the work of my court.” Edwards, a Jimmy Carter appointee, told Kyl that the best indications of a court’s workload are the number of new case filings and their complexity. He provided data showing that the number of appeals hardly changed between 1995 and 1999 and that complicated regulatory cases and so-called complex cases, which occupy a good chunk of the judges’ time, continue to form a large part of the court’s work. This isn’t the first time that the two judges have publicly disagreed over the court’s workload. As long ago as 1995, Silberman testified before Sen. Charles Grassley, R-Iowa, that the court did not need 12 judges, while Edwards testified that the court had enough work to justify filling all 12 slots. At the time, there was one vacancy on the court. The slot in question then was filled by Garland, but only after Judge James Buckley took senior status in 1996 and left the court with only 10 judges. Snyder was nominated for Judge Wald’s seat and is being treated by the administration, in effect, as the nominee for the 11th seat. Elena Kagan, a visiting professor at Harvard Law School, was nominated in June 1999 as Buckley’s replacement. Her confirmation prospects are considered nonexistent. Elliot Mincberg, legal director of the liberal People for the American Way, is critical of the process begun by Kyl. “This is a troubling development,” he says. “It risks politicizing sitting federal judges. And it’s only under these circumstances that this issue of too many judges comes up. If George W. Bush is elected, my suspicion is that these concerns would magically disappear.” Thomas Jipping of the conservative Free Congress Foundation’s Judicial Selection Monitoring Project did not return a call. Sixty-five vacancies now exist on the nation’s federal courts; Clinton has made 36 nominations that remain pending. Court sources say that the split between Edwards and Silberman on the workload issue does not reflect animus between them or a return to the dissension-filled times in the D.C. Circuit’s past. Still, it does inject new controversy into a nomination that had been proceeding slowly but steadily. Snyder’s May 10 confirmation hearing was uneventful and was considered a success by his backers. On May 16, however, an acerbic Wall Street Journal editorial threw down the political gauntlet. It noted that Snyder had represented Bruce Lindsey, the president’s counsel and friend, in connection with Independent Counsel Kenneth Starr’s Whitewater investigation. The Journal smelled a political fix: Snyder’s “reward for counseling the consigliere is a nomination to the prestigious D.C. Circuit court of appeals,” the newspaper wrote. The editorial also noted that the court is now divided 6-4 in favor of Republican appointees, and that the confirmation of Snyder, coupled with the possibility that Silberman will take senior status in the fall, “would mean a 5-5 split that could haunt the first year of a Bush presidency.” The editorial sparked outrage in some D.C. legal circles. Fourteen former D.C. Bar presidents wrote a letter, sent to the Journal and to every member of the Senate Judiciary panel, supporting Snyder as “a thoughtful, highly qualified and accomplished lawyer, who is totally non-ideological” and criticizing the editorial for injecting partisan politics into the nomination. “We saw the editorial as both inaccurate and unfair,” says E. Barrett Prettyman Jr., a partner of Snyder’s at Hogan & Hartson and one of the signers. “There should be no controversy about a person like this.” Snyder declined comment. Observers of the judicial selection scene are now uncertain about the prospects of the Snyder nomination. On the one hand, Snyder was not among the 16 nominees who went through last week. This might have spelled the last chance for the Clinton administration to get judges approved in its waning days. And the workload issue might give Republican senators a way to quietly set aside the nomination without having to weigh Snyder’s qualifications, which are outstanding by any conventional measure. Snyder, 54, clerked for Chief Justice William Rehnquist and has been a well-known civil litigator at Hogan & Hartson for decades. An expert in legal ethics, he has served as chair of the lawyer disciplinary system for both the D.C. Circuit and the D.C. Court of Appeals. He has drawn support from such prominent Republicans as former D.C. Circuit Judge Robert Bork and former Reagan Justice Department official Charles Cooper. Snyder’s credentials, his quiet demeanor, and his advocacy of judicial restraint may ultimately save the nomination, some think. Snyder said in his official statement to the Senate that he is a “judicial conservative,” not a judicial activist. He wrote that he sees his role as “faithfully interpreting and implementing the Constitution and laws of the land,” rather than deciding cases based on a personal agenda.

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