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R. Hewitt Pate is expected to enjoy a relatively pain-free confirmation as assistant attorney general for antitrust, though there is a risk that an unrelated dispute over judicial nominations could delay the process for months. President Bush on Thursday sent Pate’s nomination to the Senate, where the Judiciary Committee is expected to hold a confirmation hearing by the end of April. A spokeswoman for Judiciary Committee chairman Orrin Hatch did not return a call for comment. Sens. Mike DeWine, R-Ohio, and Herb Kohl, D-Wis. — respectively the chairman and ranking member of the Senate Judiciary antitrust subcommittee — appeared supportive of Pate’s nomination, though they vowed to examine his record closely. “It is crucial for competition and consumers that this important post be filled with a person committed to strong antitrust enforcement,” they said in a statement. “We have worked with Mr. Pate in the past and look forward to reviewing Mr. Pate’s views and background at his Judiciary Committee confirmation hearing.” Pate has been acting antitrust chief since December 2002, when Charles James resigned to become general counsel for ChevronTexaco Inc. He quickly became the front-runner to get the post on a full-time basis, though the long delay in the announcement had sparked some speculation that the White House was interested in other candidates. The president announced his intention to nominate Pate on Wednesday, and the actual nomination came less than 24 hours later. Typically the White House takes several weeks to complete background checks between the announcement of the intent to nominate and the nomination itself. A Capitol Hill source predicted Pate would have few problems winning confirmation, noting that he has been running the division for several months without incident. Pate was unavailable for comment. A Justice Department spokeswoman did not return a call for comment. The biggest trouble Pate could have is a spat over Hatch’s handling of judicial nominations. Democrats are upset that Hatch permitted a February vote on three appeals court nominees despite the unanimous objection of committee Democrats. The Democrats argue that a committee rule requires at least one member of the minority party to consent to a vote on judicial nominations. Hatch countered that the rule does not limit his inherent power as chairman to bring any matter to a vote. Democrats are now discussing whether to filibuster the three appeals court nominees on the Senate floor. That could shut down the confirmation process, especially for posts connected to the judicial system such as an assistant attorney general. Judicial nominations often spark bitter political fights because judges serve for life. Democrats want to prevent the Bush administration from filling the courts with conservative jurists. Past fights over judicial nominations have held up unrelated political appointments for years. Though there is no indication that the current fight has escalated to that level — and several district court and U.S. marshal nominations have moved through the committee recently — a Capitol Hill source warned that anything is possible. Even with the potential confirmation troubles, the announcement is expected to free the division to fill two of the five deputy positions, which have been vacant for months. Most pressing is finding a replacement for William Kolaksy, the former deputy for international issues who last year returned to law firm Wilmer, Cutler & Pickering. Also, Pate’s former post of deputy for regulation has been vacant since December 2002. Principal Deputy Deborah Majoras has been handling both jobs. Pate’s elevation to the permanent job won general praise from antitrust lawyers, who predicted that Pate will not be afraid to challenge mergers in court even if there is a risk he could lose. “You are getting a lawyer’s lawyer,” said Mark Gidley, a partner at White & Case in Washington. “He has tried cases. He is not just a conference room lawyer.” “He’s an excellent choice,” said Jim Rill, a partner at Howrey, Simon, Arnold & White who is a former assistant attorney general for antitrust. “He is not afraid to take on controversial positions.” For instance, Pate recently advocated having the Justice Department file a brief urging the Supreme Court to hear a civil antitrust dispute involving Verizon Communications Inc., despite a general unwillingness by the government to intervene in private disputes. “I’m sure that did not make the plaintiffs bar too happy,” Rill said. “But that showed strength.” Before joining the antitrust division in 2001 as deputy assistant attorney general for regulation, Pate was a partner in the Richmond, Va., office of Hunton & Williams. A litigator, he handled cases involving antitrust and intellectual property disputes. He worked on few mergers while in private practice, though he has been involved in some of the division’s most controversial enforcement actions since joining government. This includes overseeing the prosecution of SunGard Data Systems Inc.’s acquisition of the disaster recovery unit of Comdisco Inc., which the division lost. Pate also supervised the investigations of EchoStar Communications Corp.’s acquisition of DirecTV and Comcast Corp.’s purchase of AT&T Broadband. Pate is a University of Virginia law school graduate who clerked for Supreme Court Justices Lewis F. Powell Jr. and Anthony Kennedy. He also clerked for Judge Harvie Wilkinson of the 4th U.S. Circuit Court of Appeals. Copyright �2003 TDD, LLC. All rights reserved.

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