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Slade Gorton on the Ninth Circuit? While his age, 73, will surely be an issue, the former senator from Washington is being touted by his former colleagues as a candidate for a federal judgeship. In a letter signed by 49 of 50 Senate Republicans and sent to President George W. Bush, Gorton is praised for his legal abilities and suggested for a spot on either the U.S. Circuit Court for the District of Columbia or the 9th U.S. Circuit Court of Appeals. (Arizona Sen. John McCain abstained). Both courts have three seats open, but the possibility of Gorton being nominated to the court that he long criticized — and wanted to split — while in the Senate is easily the more compelling possibility. Chief Judge Mary Schroeder said she was aware of a rumor that Gorton may be nominated to the court but otherwise refrained from comment. A member of the Federal Bar Association who worked closely with 9th Circuit judges in defending the court from Senate efforts to divide it said Gorton’s past advocacy shouldn’t necessarily keep him off the bench. “If he’s qualified, I don’t think it’s a disqualifying factor in any regard as to how he’s positioned himself on that issue,” said Lafayette & Kumagai’s George Duff. “I think that issue has largely disappeared and would not have the votes in Congress today.” Before Gorton was elected to the Senate, he was Washington’s attorney general for 12 years, including a stint as president of the National Association of Attorneys General. Gorton’s loss to political newcomer Maria Cantwell by a mere 2,229 votes was seen by some as a sure sign that the question of splitting the circuit would not be asked again for some time. Gorton, who viewed the court’s decisions on natural resources and the environment as too liberal, was one of the Senate’s most forceful advocates for dividing the court — which he argued had become unwieldy — into smaller geographical regions. Since the Senate criticism, the court has implemented several programs designed to address those concerns. The use of 11-judge en banc reviews has also gone up, which many credit with reducing the court’s reversal rate in the U.S. Supreme Court. Senior Judge David Thompson, who headed a committee studying court processes in response to the criticism, said he hadn’t heard the rumor and had no idea what Gorton’s confirmation chances would be. “It would just be another voice for a split on the circuit is all it would be,” Thompson said. The story was first reported in Thursday’s edition of Roll Call, a newspaper covering Capitol Hill. In the article, both Senate Judiciary Committee leader Orrin Hatch, R-Utah, and the committee’s ranking minority member, Patrick Leahy, D-Vt., offered support for Gorton. The idea for the letter was hatched last month at a Republican retreat, according to a spokesman for Sen. Gordon Smith, R-Ore. The letter was organized and drafted by Sen. Mitch McConnell, R-Ky. McCain reportedly did not sign the letter because he disagrees with Gorton on Native American tribal sovereignty rights. A McCain spokeswoman told Roll Call many of those issues fall under the jurisdiction of the 9th Circuit, which is why McCain did not endorse Gorton. Cantwell’s office issued a statement Thursday on the possibility that her vanquished opponent would be named to the bench. “I will treat all potential nominees to the federal bench from Washington state with fairness and respect,” Cantwell wrote. “It is my hope that the Bush administration will agree to continue the Washington state tradition of using a bipartisan approach to identifying and selecting candidates for the federal bench in Washington state.” However, while presidents often defer to home state senators when it comes to federal trial court judges, administrations have always been more likely to bypass senators to pick court of appeals judges. An obstacle to Gorton’s appointment seemed to be the lack of an open seat in Washington. Of the three vacancies, one will go to Hawaii, while the other two were expected to go to California. But Judge Margaret McKeown is planning to move her chambers from Seattle to San Diego, her office said Thursday. In August, McKeown’s husband will take a teaching job at a Southern California university. That leaves a Washington seat open for Gorton. University of Pittsburgh School of Law professor Arthur Hellman, who has written two books on the 9th Circuit, said judges would likely accept Gorton despite his past antagonisms. “I think they would receive him cordially. He’s a lawyer. Watching him in the debates it was obvious he’s a very good lawyer,” Hellman said. Judge Diarmuid O’Scannlain, an advocate for a circuit split who has testified on the matter on Capitol Hill, praised Gorton. “He’s a very accomplished lawyer and would be a great addition to the court,” O’Scannlain said. And despite the American Bar Association’s past reluctance to endorse older bench candidates, not everyone writes Gorton off. “Stranger things have happened,” Hastings College of the Law professor Rory Little said.

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