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In a blow to critics of President George W. Bush’s judicial nominees, the Senate Judiciary Committee voted 12-7 Thursday to approve D. Brooks Smith for a judgeship on the 3rd U.S. Circuit Court of Appeals. Smith, the chief judge of the U.S. District Court for the Western District of Pennsylvania, is opposed by many liberal groups for his past membership in a men-only fishing and hunting club and for rulings that liberals say show insensitivity to environmental, labor, consumer and women’s concerns. The groups also point out that Smith has been reversed more than 50 times by the court he is to join. Liberals immediately vowed to press the fight on the floor of the Senate, where Smith must still get approval. “We were surprised and disappointed. Given Judge Smith’s record, the [Democratic] votes for him in committee were inexplicable,” said Ralph Neas, president of the Washington, D.C.-based People for the American Way, after the vote. “We will continue to do battle, and we hope the nomination will be defeated on the floor.” The outcome of Thursday’s vote was considered a tossup all week and did not become clear until Sen. Joseph Biden, D-Del., a former chairman of the panel whose state is also located in the 3rd Circuit, spoke up in favor of the nominee. “This is a close call. Smith’s candor at minimum has been in question,” Biden said, referring to the fact that Smith testified in 1988, when he was nominated for the trial court, that he would resign from the all-male club but did not do so until 1999. Biden went on to say that although he disagreed with Smith on many issues, he did not “see a sufficient reason to vote against him. “I start off with a presumption that if Sen. Specter supports him, then I’d like to support him,” Biden said. Sen. Arlen Specter, R-Pa., Smith’s home state senator and a Judiciary member, is the nominee’s chief backer on Capitol Hill. Biden also told the committee that Edward Becker, the chief judge of the 3rd Circuit, had asked him to support the nominee. Biden said that Becker told him he had reviewed the cases in which Smith had been reversed by the circuit and “found nothing unusual there.” In a telephone interview, Becker confirmed this account. “Sen. Biden and I both happened to be at a dinner of the American Museum of Jewish History in Philadelphia,” said Becker, a Ronald Reagan appointee to the appeals court. “I told the senator that Smith has been portrayed as an ideologue, and he isn’t. I’ve been reviewing his work [as an appellate judge] for 14 years.” Becker says his court “is very short-handed now,” with three vacancies. “I borrow judges from all over,” he says. Joining Biden and all nine committee Republicans in voting for Smith were Sens. Herb Kohl, D-Wis., and John Edwards, D-N.C. Neither Kohl nor Edwards spoke up at the meeting to explain his vote. The 12-7 tally contrasted sharply with the committee’s party-line, 10-9 rejection of 5th Circuit nominee Charles Pickering Sr. in March. Pickering and Smith have been the most controversial Bush appellate nominees to get hearings and committee votes this year under the Democrat-controlled Senate. Asked to explain the different results in the two votes, Marcia Greenberger, co-president of the National Women’s Law Center and a Smith opponent, said, “There was a very heavy lobbying campaign, including by a federal judge, which we had no opportunity to counter.” At the committee meeting, Chairman Patrick Leahy, D-Vt., said Smith should be defeated because he is “beholden to right-wing political groups.” Ranking minority member Orrin Hatch, R-Utah, replied that Smith “has the highest rating from the American Bar Association, the gold standard, and is supported by virtually everyone in western Pennsylvania.” Jonathan Groner is editor at large of Legal Times.

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