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Federal bench in Western Pa. may lose another judge

Bush may nominate Smith for U.S. appeals court

Saturday, September 08, 2001

By Rachel Smolkin and Torsten Ove, Post-Gazette Staff Writers

President Bush is expected to nominate Chief U.S. District Judge D. Brooks Smith to the federal appeals court, a move that could leave the federal bench in the Western District of Pennsylvania even more short-handed.

Although the White House made no official comment, Bush's nomination of Smith to the 3rd U.S. Circuit Court of Appeals is anticipated as early as next week.

"My hope is that he will be announced shortly," said U.S. Sen. Rick Santorum, R-Pa. "I have been advocating very strongly on his behalf. ... I think he'd be a good addition to the court."

State Sen. Robert Jubelirer, R-Altoona, a friend of Smith's, said he didn't know when Bush would make the announcement but confirmed that Smith, 49, also of Altoona, is in line for the job.

"I know he's the guy. The FBI has been doing background checks for several months. I think it's coming very, very soon," he said.

"The president will never make a better choice than this one," Jubelirer said. "He's very knowledgeable. He's prepared. He truly is someone who is a role model."

After his nomination, Smith will have to be confirmed by the U.S. Senate, a process that could require several weeks.

Smith became chief judge of the district court in January and sits in Pittsburgh and Johnstown. He was out of town yesterday and couldn't be reached. Staff members said they knew he was a candidate for the circuit court but said they didn't know he was soon to be nominated.

White House spokesman Scott Stanzel declined to confirm that Smith would be nominated but said the administration is moving swiftly to fill judicial vacancies.

"The president is moving forward with selecting candidates for judicial slots, selecting candidates who are of high character who have wide experience in the judicial system," Stanzel said. "President Bush has nominated judges at a record pace for a president in his first year."

Before the August congressional recess, Bush had nominated 44 federal circuit and district court judges, compared with former President Ronald Reagan's 13 nominations in 1981, the eight nominations in 1989 by Bush's father, and former President Bill Clinton's 13 in 1993, Stanzel said.

So far this year, the Senate has confirmed four of Bush's choices.

Of the 179 circuit judgeships nationwide, about 31 are vacant. There are 68 seats unfilled in federal district courts, Stanzel said.

Santorum said the lengthy background-check process for nominees has slowed the administration's effort to advance nominations. "They're so backed up because they can't get their background checks [completed] in a prompt fashion," he said. "It's just gotten more and more complex as time went on."

For years, U.S. District Court here has been handling its caseload with three vacancies in the 10 full-time judgeships it is supposed to have. The problem appears likely to get worse if new judges aren't appointed soon.

In addition to Smith's likely departure, Judge Donald Ziegler will go on senior status in October and Judge William Standish has said he'll take senior status in March -- leaving a total of six vacancies.

For years, judicial appointments have languished nationwide as nominees were held up in partisan disputes in Washington. Many of Clinton's nominees never even received a hearing.

When Bush assumed the presidency, Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, seemed poised to offer a smoother ride to Bush's nominees. But James Jeffords, I-Vt., bolted from the Republican Party and handed control of the Senate to the Democrats.

"Everything was going swimmingly" until Jeffords' defection, said William J. Green, a GOP consultant based in Pittsburgh. "That plowed up everything."

The delay in getting local judgeships filled was rooted in a political dispute between Clinton and Pennsylvania's Republican senators, Santorum and Arlen Specter.

U.S. District Judge Robert Cindrich, a member of the bench in Pittsburgh, was among those nominated by Clinton for the 3rd Circuit. Clinton also nominated then-U.S. Attorney Harry Litman, Allegheny County Common Pleas Judge David Cercone and Downtown attorney Lynette Norton for district judgeships.

None of them cleared the Senate.

Santorum has complained that the White House violated an agreement that for every three nominations the president made, he and Specter would get one.

This spring, a merit selection committee prepared a list of judicial nominees for Bush. Although the list is confidential, these names are believed to be on it: Joy Flowers Conti and Arthur J. Schwab, both attorneys at the Downtown firm Buchanan Ingersoll; Alexander H. Lindsay Jr., a Butler attorney; Allegheny County Solicitor Terry McVerry; and Cercone.

Cercone, Schwab and McVerry didn't return calls. Conti and Lindsay said they couldn't comment.

Smith, a federal judge since 1988, has served as chief judge since January, replacing Ziegler in that role. By statute, the chief judge serves a seven-year term.

Smith started his law career in Altoona with the firm Jubelirer, Carothers, Krier & Halpern, and later became a managing partner there. During his years in private practice, he also served as an assistant district attorney in Blair County and a special assistant attorney general of Pennsylvania. In the early 1980s, he helped lead a grand jury investigation into organized crime in Blair County.

After serving as district attorney from 1983 to 1984, he was appointed judge in Common Pleas Court in 1984 and was elected to a full term the next year. In 1987, he was appointed administrative judge of the court.

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