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As congressional Republicans work to split the left-leaning 9th U.S. Circuit Court of Appeals, the White House may tilt the balance the old-fashioned way: It’s close to nominating two more Republicans to the federal appeals court. Last month, the Justice Department began background checks of the potential nominees: Los Angeles transactional attorney Milan Smith and Idaho state court Judge N. Randy Smith. “Hopefully, by the end of the year there’ll be a nomination,” said Milan Smith, 63, a founding partner at Smith Crane Robinson & Parker, a former member of the state Fair Employment and Housing Commission, and the brother of Gordon Smith, a Republican senator from Oregon. Milan Smith attributes being considered to a convergence of experience with well-placed political connections. “My name was put in, ironically, by both [Senators] Barbara Boxer and Orrin Hatch a number of years ago,” he said. The connection with Hatch — the Republican U.S. senator from Utah — is easy to understand, given that Milan Smith is active both in the Church of Latter Day Saints and in Mormon business ventures. The link to Boxer came via his brother. “He and Barbara Boxer are very good friends, even though they don’t see eye to eye on everything,” Milan Smith said. A Boxer spokesman refused to comment. After his brother introduced him to Boxer, Milan Smith explained, the Democratic senator learned the circumstances of Milan Smith’s departure from the Fair Housing and Employment Committee in 1991. He stepped down in protest after then-Gov. Pete Wilson vetoed a bill that would have given the commission power to award compensation to victims of sex harassment. “I really felt for those people who’d been sexually harassed,” he said. “Sure I’m a Republican, but I’m a Republican with a heart.” Ann Noel, the commission’s acting executive and its former general counsel, agreed. “He’s a great guy,” she said. “I think he’s going to make a really good judge.” She said Milan Smith distinguished himself on the commission for his time-management skills — “he was able to balance his very busy real estate practice with being a very active commissioner,” she said, adding that he has a willingness to take a stand on sensitive issues. She pointed to his authorship of concurrences and dissents on commission decisions, as well as the circumstances of his resignation. “It’s the only instance I can think of where someone did something of their own conscience against the party line,” said Noel, who’s been a lawyer with the commission since 1982. Milan Smith said he’s proud of the stand he took, and said his experience on the board — and in the 10 cases he’s taken to trial — would give him a different perspective than many of the current 9th Circuit judges. “What I would bring to the court is some experience in substantive areas that other judges don’t have,” he said. Like Milan Smith, Judge N. Randy Smith has a long record of legal and political experience. Since he was appointed in late 1995 to an Idaho trial court — where his current responsibilities include civil and criminal cases as well as administrative duties — ethics rules have limited N. Randy Smith’s role in politics. But he used to be a GOP bigwig — as chairman of Idaho’s Republican Party. Like Milan Smith, N. Randy Smith attended Brigham Young University as an undergraduate. The Idaho Smith got his law degree from BYU’s J. Reuben Clark Law School in the 1970s, according to information that was posted on the Idaho State University’s Web site, one of the schools where Smith has taught. According to the same biography, Smith worked as a corporate lawyer for the agribusiness giant J.R. Simplot Company for several years until he went to work at Idaho-based Merrill & Merrill in 1982. He remained there until he was named to the bench. His specialties at the firm, the biography states, included insurance defense, corporate and asbestos litigation, and probate and estate planning. Earlier this year, he was picked by a political science honor society at ISU to receive the school’s “Statesman of the Year” award, given each year to someone in Idaho who has made “significant contributions” to the state’s welfare. He is also a member of the state’s Judicial Council, which makes recommendations on judges’ discipline to the state Supreme Court. Chief Judge Mary Schroeder of the 9th Circuit said N. Randy Smith served on a 9th Circuit committee when he was an attorney, and is relatively well known in federal circles. “He’s well thought of, as far as I know,” she said. A current colleague says he is respected for his settlement skills. “He is highly sought as a mediator” all over the state, said District Judge Don Harding, who has known N. Randy Smith for more than a decade and says he’s been one of his references for his 9th Circuit application. “I don’t think they could get any better person than him to fill that job on the 9th Circuit,” Harding said. Judge Alex Kozinski of the 9th Circuit also said he’d heard positive things about the two Smiths. “I got called on a background check,” Kozinski said. “I’ve heard a little bit about them. I’ve heard good things about them by reputation.” The potential nominees would fill 9th Circuit seats opened when California-based Judge A. Wallace Tashima and Idaho-based Stephen Trott take on senior status. Since the Bush administration’s controversial nomination of William Myers III for another open Idaho seat was filibustered, there has been little talk of new nominations for the 9th Circuit. Myers is a former lobbyist for ranchers and a lawyer for the U.S. Department of the Interior. That’s been frustrating for Schroeder, who wanted the administration to fill the four open seats as quickly as possible to ease the judges’ large caseload. “I’ve been hoping that there would be some movement toward filling those vacancies,” she said Monday. Milan Smith would concur. “Hopefully, now they’ve realized that leaving seats vacant doesn’t make sense,” he said. Reporter Pam Smith contributed to this story.

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