Another Bush Nominee Faces Tough Hearing

His name is D. Brooks Smith and he is the latest judicial nominee pitched by President Bush to face fierce criticism from Democrats on Capitol Hill.

In fact, Smith, a U.S. District Judge up for a 3rd Circuit Court of Appeals seat, will not get a Senate Judiciary Committee confirmation vote until at least next week, even though he was nominated Sept. 10.

Tuesday, Smith faced Democratic opponents on the committee who beat him up over his attendance at a variety of conferences and educational symposiums that have been paid for by foundations described as legally conservative.

Sen. Russ Feingold, D-Wis., said Smith has taken more such trips than all but four judges in the nation. Feingold, who chaired the hearing, said the total value of the trips, some of which were to resort locations like Hilton Head Island, S.C., was about $30,000.

Democrats have suggested that that is in some way likely to taint his ability to adjudicate cases. Smith argued the case vociferously.

"Federal judges are accustomed by training and by experience to hearing on a day to day basis, different points of view, it's what we do, it's what we're about. And I have confidence that I, and confidence that my colleagues in the federal judiciary, can hear these various points of view without being influenced by them," he said, adding that he would not attend similar seminars if elevated to the appeals court unless he were sure it would not cause an appearance problem.

One of the Republicans in the Senate Judiciary Committee who supports the nomination, Sen. Orrin Hatch, R-Utah, pointed out that it wasn't that Smith attended the conferences, but that he attended the wrong ones — in other words, conservative ones.

Smith is the latest of the president's embattled nominees. Earlier this month, Judge Charles Pickering, Sr. was taken to task by Senate Judiciary Committee Democrats for his position on race and abortion rights issues. Senate Republicans promptly refuted those charges on Pickering's behalf, but Committee Democrats appear ready to vote en bloc to reject Pickering.

With that in mind, Senate Minority Leader Trent Lott, R-Miss., repeated his pleas Wednesday during a White House congressional breakfast that a vote on Pickering's nomination to the 5th Circuit Court of Appeals should be postponed because Pickering has not had time to answer all the questions committee members submitted to him during the last hearing. 

President Bush also chimed in during the breakfast. According to one official, Bush emphatically stated to Senate Majority Leader Tom Daschle that Pickering is well-qualified and deserves a vote out of committee and on the Senate floor.

The White House has been out of the fray on the Pickering nomination, but officials say the president is now prepared to take a more active role on a contentious issue. 

What that role will be is still unknown, nor has it been determined whether Bush will jump in and help Smith, who also faced criticism in the committee Tuesday over his presiding at a bank fraud case in which he didn't recuse himself as soon as some of his critics would have liked. Smith's wife was a vice president at the bank and the two had stock and retirement accounts with the bank.

Smith, 50, oversaw for one month a fraud trial in 1997 involving Mid-State Bank, which was accused of complicity in the defendant's scheme to defraud dozens of Pennsylvania schools and municipalities.

Smith issued several rulings before taking himself out of the trial and did not disclose the investments at the time. He said that had he known Mid-State was going to be involved in the case, he would have recused himself, which he did when the bank was eventually brought into the case.

"None of the parties, lawyers or judges nor the trustee has questioned my conduct," Smith said. "At no time did I have an actual conflict of interest that required my automatic disqualification. Rather, to avoid even a possible appearance of impropriety in the future, I recused myself ... My rulings were neither illegal nor unethical."

The Justice Department cleared Smith of any wrongdoing.

Senate Judiciary Committee member Joseph Biden, D-Del., also has an axe to grind with Smith, who questioned Biden's 1993 Violence Against Women's Act during a speech to the Federalist Society.

Biden argued that the federal government had the authority to impose some federal domestic laws on states. Smith argued that was constitutionally wrong and inaccurate and they argued at the time.

The issue came back up in the committee room Tuesday, as Biden threatened Smith to answer his questions or face his wrath.

"If you suggest to me that you cannot respond in the same way you responded as a sitting federal judge on the Violence against Women Act, then I will do everything in my power to defeat you, including moving to the Senate floor to take an action I've never taken in my life as a United States senator — a filibuster," Biden said.

However, Smith's criticism of Biden's original advocacy for the Violence Against Women Act was upheld by the Supreme Court. Some elements of the original law were struck down as unconstitutional.

Fox News' David Shuster and the Associated Press contributed to this report.