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It began with a casual conversation between senators of opposing parties on an evening Amtrak train from Washington, D.C., to Wilmington, Del., and points north. It culminated at a chance encounter between a senator and a leading appellate judge on the evening of May 22. The surprising vote of liberal Sen. Joseph Biden, D-Del., in favor of conservative 3rd U.S. Circuit Court of Appeals nominee D. Brooks Smith was a long time in the making. Biden turned out to be one of three Judiciary Committee Democrats who joined the panel’s Republicans in sending Smith’s name to the Senate floor May 23. But both sides saw his vote as pivotal in the confirmation showdown. After all, Smith, a federal trial judge in Pennsylvania, was seen as a conservative jurist similar to 5th Circuit pick Charles Pickering Sr., whose nomination was extinguished by a party line, 10-9 vote in March. The decision by Biden — a respected former Judiciary chairman — may recast the political calculus for other hard-fought nomination battles that are virtually certain to follow later this year. Biden’s move reveals that lawmakers are willing to cross party lines despite the increasingly heated partisan rhetoric over nominations. It also shows that the job of carrying the heavy load for a nominee need not fall to the White House, the Justice Department, or conservative interest groups. This time, the burden landed squarely on the shoulders of fourth-term Republican Sen. Arlen Specter, a Judiciary Committee member from Smith’s home state, who is powerful and pragmatic enough to draw the deference of his colleagues. According to two Senate staffers, Specter told Republican aides in the days before the vote to “stand down” and refrain from lobbying undecided Democratic senators on Smith’s behalf. Specter suggested that he had the situation under control. “There’s great reliance on Senator Specter’s ability to convince one of his colleagues,” said a GOP aide at the time. “But he hasn’t named names. It doesn’t make me feel good.” “This is high-stakes poker,” said another Republican aide before the vote. Although Specter won’t acknowledge it, it was Biden, his frequent Amtrak companion, whom he had in mind. “You don’t push anyone here in the Senate,” Specter said in an interview the day before the vote. “You talk with people all the time about the merits and about issues of concern to them.” Asked about the topics of conversation between him and Biden in the late-night and early-morning Northeast Corridor train journeys, Specter said, “The nomination is all we’ve talked about for the last five trips.” Specter also got last-minute assistance from Edward Becker, the chief judge of the 3rd Circuit, who approached Biden the night before the vote. “Senator Biden and I both happened to be at a dinner of the American Museum of Jewish History in Philadelphia,” says 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 should know. I’ve been reviewing his work [as an appellate judge] for 14 years.” Becker says he had just read a New York Times editorial that morning that opposed Smith’s confirmation on the grounds that Smith had committed serious ethical lapses and that he harbored a narrow view of congressional power to protect civil rights. “I thought the editorial was unfair and inaccurate,” Becker says. “That is not the Brooks Smith I know.” Becker also says that his court could use more judges quickly and that he told this to Biden as well. “The court is very short-handed now,” with three vacancies, Becker says. “I borrow judges from all over.” Becker’s efforts are unusual, but not unheard of. Procter Hug Jr., then-chief judge of the 9th Circuit, came to Washington repeatedly during the late 1990s to push lawmakers to fill vacancies on his court that were snagged in partisan warfare. BIDEN HIS TIME When Biden addressed a packed Judiciary Committee hearing room on the morning of May 23, it was apparent that the efforts had had a considerable impact on the Democrat. Biden began by saying that Smith’s confirmation presented “a close call” because the nominee’s “candor at minimum has been in question.” Biden was referring to the fact that Smith testified in 1988, when he was nominated for a federal trial court slot, that he would resign from an all-male hunting and fishing club — but did not quit 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 Senator Specter supports him, then I’d like to support him,” Biden said. “That matters to me.” Biden also told the committee that Becker had directly asked him to support the nominee. Biden said that Becker told him he had looked over various cases in which Smith had been reversed by the 3rd Circuit and “found nothing unusual there.” In a statement released after the hearing, Specter said, “Unless you have someone who is as tough and courageous as Sen. Joe Biden, who does all that homework, I think the general reaction when faced with an avalanche of erroneous editorials [would be to] take the easy way out politically.” Biden’s support for Smith was particularly notable since in a 1993 speech to the Pittsburgh chapter of the Federalist Society, Smith delivered a head-on criticism of Biden’s views on the reach of congressional power under the Constitution. Smith contended that the then-pending Violence Against Women Act, of which Biden was a co-sponsor, went too far in expanding federal power. (The U.S. Supreme Court later agreed with Smith in a closely divided ruling in 2000.) Smith said in the 1993 speech that Biden’s reasoning was “nothing more than another euphemism for the political expediency that has animated the politics of both liberals and conservatives, Republicans and Democrats, for the last two decades.” Smith downplayed his criticism of the law at his confirmation hearing in February. Biden was not the only Democrat to vote for Smith. The 50-year-old nominee also drew support from Sens. Herb Kohl of Wisconsin and John Edwards of North Carolina. Neither Kohl nor Edwards explained his vote at the Judiciary meeting. In a statement released later in the day, Kohl said that although he takes the ethics charges against Smith “very seriously,” he was influenced by Smith’s “well qualified” rating from the American Bar Association and is “convinced that [Smith] will apply the law fairly.” Edwards said similarly that he believes Smith “is willing to put personal views aside and apply the law.” Pickering, the 5th Circuit nominee, and Smith have been the most controversial George W. Bush judicial nominees to be considered this year by the Democrat-controlled Senate. Asked to explain the different results before the Judiciary Committee, Marcia Greenberger, co-president of the National Women’s Law Center and a Smith opponent, says, “There was a very heavy lobbying campaign, including by a federal judge, which we had no opportunity to counter.” Marcia Kuntz, another Smith opponent, agrees that Biden was a key to the outcome. Judiciary members “were very interested in what Senator Biden would do because he is the only Democratic committee member who is from the 3rd Circuit,” says Kuntz, director of the Judicial Selection Project of the Alliance for Justice. If Biden is going to be a swing vote on other contested circuit nominations, his explanation in March of his decision to oppose Pickering gives an indication of his approach. As he did in his remarks on Smith, Biden said his Pickering decision was a difficult one. Addressing liberal groups, Biden said then that “if you believe in voting against someone for a lower court based on his views, I’m not with you, as long as I think their competence meets a high standard.” In Pickering’s case, Biden explained, “I question his judgment and his judicial temperament in cases in which he was overruled in civil rights, prisoners’ rights, and employment. That’s my problem.” Biden’s press secretary did not respond to a request for comment late last week. Liberals immediately vowed to press the Smith fight on the floor of the Senate, where the nominee 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 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.” Since the Senate has 49 Republicans, and three Democrats voted for Smith in committee, the liberal groups would appear to have an uphill battle in putting together a Senate majority.

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