WASHINGTON (AP) – Despite his growing reputation as a Republican moderate, Oregon Sen. Gordon Smith chose not to participate in this week’s effort by centrist senators to forge a compromise that avoided a partisan showdown over federal judges.
Smith said that’s because he believes the president has a right to an up-or-down vote on all judicial nominees.
“My tenure here has shown me that we have a dysfunctional system when it comes to the executive calendar,” Smith said Thursday in an interview with The Associated Press. “I really do feel the presence of litmus tests that disqualify people from the left and the right from serving on the bench really begins to do damage to a vigorous judiciary.”
Under Senate rules as practiced for the past several years, “the unwritten, the unrevealed and the unaffiliated now are the only [nominees] who can get through,” Smith said.
Smith, who has worked closely with many of the 14 senators who signed the compromise, said he was never formally asked to join the group, although he talked about the issue at length with one of its leaders, Sen. Mike DeWine, R-Ohio.
In the past, Smith also has worked closely with moderate Republican Sens. Susan Collins and Olympia Snowe of Maine, as well as Sen. John Warner, R-Va. Those lawmakers, along with three other Republicans and seven Democrats, signed the two-page compromise, which cleared a path for many of President Bush’s stalled judicial nominees and preserved historic filibuster rules.
“I respect what they’ve done. I think it was done in good faith,” Smith said. “I just hope that good faith holds.”
Smith and other lawmakers have noted the tenuous nature of the compromise, which says filibusters can still be invoked in “extraordinary circumstances” that were largely left undefined.
Smith said the standard for extraordinary circumstances was set by Janice Rogers Brown, an associate justice of the California Supreme Court who was one of three controversial nominees cleared by Democrats for a vote by the full Senate. Two other nominees will be blocked under the agreement.
The fact that Democrats will allow a floor vote on Brown – who supports limits on abortion rights and corporate liability, backs the death penalty and opposes affirmative action – “leaves the president a wide-open field from which to pick, because she is clearly on the right,” Smith said.
Allowing a vote on Brown also shows the filibuster was really about politics, said Smith, who intends to vote for Brown.
“They had to have some scalps,” he said of Senate Democrats.
Still, Smith called the compromise worthwhile, because it preserved the right of senators to call a filibuster, while setting what he called a “pretty high pain threshold” for those who choose to do so.
“I think Democrats know they used the filibuster with too great regularity and were breaking the system in a way I think was unconstitutional,” he said. “I hope the practice will return the standard to the constitutional 51” votes needed to confirm a judicial nominee.
While the filibuster has dominated talk in Washington in recent weeks, Smith said he has not been overwhelmed by constituents on the issue.
“I heard two things: Don’t change the rules and give them all a vote,” he said. “If only that were possible. Maybe that is possible. I hope so. I would just as soon not have to act” on a threat by Senate Majority Leader Bill Frist, R-Tenn., to force a yes-or-no vote on each of Bush’s nominees.
Smith, a millionaire Mormon who was elected as Oregon’s most explicitly conservative senator in a half-century, said he is amused to see himself described as a moderate – a label he earned by opposing the Bush administration on gay rights, Medicaid cuts and drilling in Alaska’s Arctic National Wildlife Refuge, among other issues.
“I believe I’m as I have represented myself to Oregonians in all of my campaigns. I’m center-right in my political orientation,” Smith said.
His newfound image as a moderate is less about him than the Senate, Smith added, noting that Congress and the country as a whole have “moved further to the right” since he took office in 1997.
“So it’s quite easy to pin me as a moderate if people want to pin a label,” he said.
Asked if he objected, Smith said no.
“I am what I am. People apply labels as it serves them. I think I am consistent. … I’m doing the best I can to call them for Oregon as I see them. That’s the only ballot I’m on.”