Sunday, August 03, 2003

By Marylynne Pitz, Post-Gazette Staff Writer

U.S. Sen, Rick Santorum, R-Pa., undermined the fairness of rating federal judicial nominees by advising three of them not to appear for a recent interview with the Allegheny County Bar Association, the group's officials say.

	Sen. Rick Santorum. (AP Photo)

"Nobody from the senator's office ever told us that this was going to happen. The process certainly works a lot better when people show up," said Fred Egler Jr., immediate past president of the Allegheny County Bar Association and a 25-year member of the organization.

All three men, who bypassed a key opportunity to answer questions, were rated in absentia because the association's bylaws require its judiciary committee to rank nominees whether they appear or not.

On a Monday afternoon earlier this summer, lawyers from the bar association's judiciary committee gathered to interview state Attorney General D. Michael Fisher; Thomas Hardiman, a partner at the law firm of Reed Smith; and Somerset County Common Pleas Judge Kim R. Gibson.

In April, President Bush nominated Fisher to the 3rd U.S. Circuit Court of Appeals, and Gibson and Hardiman to the federal bench in Pittsburgh. The U.S. Senate must confirm those nominations.

The three men had answered a long questionnaire about their legal careers and submitted writing samples. Judiciary committee members had interviewed colleagues to gather impressions of each man's abilities, temperament and life experience.

On June 30, lawyers on the 24-member judiciary committee were prepared with questions. The conference room was ready, fresh legal tablets were set out, the water pitchers were full.

Then, bar association sources say, judiciary committee Chair Thomas Birsic broke the news that Fisher and Hardiman said they were not coming on the advice of Santorum. Gibson said he could not make it because he had to attend a meeting of military reservists.

Birsic, whose last day as chair of that committee was June 30, would confirm only that the nominees did not appear but would not say why.

Committee members were infuriated. Santorum's admonition not to appear, bar officials say, interfered with the time-consuming, time-honored practice of rating judicial nominees, a task undertaken by the Allegheny County Bar Association for 40 years.

Last year, in the U.S. Senate, Santorum and U.S. Sen. Arlen Specter, R-Pa., trumpeted the ACBA's judiciary committee rating of U.S. District Judge D. Brooks Smith to convince their colleagues that he deserved a seat on the 3rd U.S. Circuit Court of Appeals.

ACBA judiciary committee members rated Smith "highly recommended" and backed him. After a contentious battle, Smith was confirmed.

Santorum, reached at his Washington, D.C., office last week, said local bar officials should not rate nominees for the federal district court in Pittsburgh or the 3rd Circuit, which covers Pennsylvania, Delaware and the Virgin Islands.

"This is a county bar association. This is a federal judicial nomination. We have the [American Bar Association] review the nomination. I am not going to make them part of this process because they are simply one county among many counties that are going to be represented," Santorum said.

Western Pennsylvania lawyers practice in both of those federal courts but Santorum insisted that because some local lawyers already play a role in the American Bar Association's ratings, there is no need for the local bar to rate nominees.

"The idea that the Allegheny County Bar Association has the right or duty to interview candidates for the 3rd Circuit Court of Appeals is an outrage. For them to suggest that they have a role to play in this process -- they're overstepping their bounds," Santorum said.

"If they want to rate Common Pleas Court candidates, I have no problem with that at all."

The local bar association's ratings, Santorum said, simply serve to second-guess the American Bar Association's ratings. By the time the ACBA rated Fisher, Hardiman and Gibson, the ABA had rated them.

The ABA rated Hardiman "qualified" but the local bar association's committee rated him "not recommended at this time."

According the committee's definition, that rating means Hardiman "may have the potential to excel as a judge, but the candidate is not yet at that stage."

The ACBA rated Fisher as "recommended" and Gibson was "highly recommended."

In a telephone interview last week, Fisher said he skipped the interview on the advice of Santorum."I opted to proceed with the rating without a personal appearance. ... I had already been rated well-qualified by the ABA. The rating by a single county bar association would have been superfluous," Fisher said.

Santorum, Fisher added, "said that I didn't need to go."

Hardiman declined to comment, saying, "I can't give you anything for the record out of respect for the United States Senate and the confirmation process."

Gibson did not return a call seeking comment.

Egler said the ratings would have been more effective if they had been established earlier "but because of scheduling considerations of committee members, that wasn't possible," he said.

The 24 people on the judiciary committee, Egler added, are all volunteers and practicing lawyers.

But Martin W. Sheerer, a veteran lawyer and longtime bar association member, disagreed.

"What the bar association has to say about a nominee, whether it's before the nomination or afterward, is valid and should be treated as important input to the U.S. Senate," Sheerer said.

In a telephone interview last week, Judge D. Brooks Smith said he felt obligated to appear before the ACBA's judiciary committee because he worked closely with the group when he was chief judge of the Western District of Pennsylvania.

"I never consulted with the White House or the Justice Department about whether to do this," Smith said.

"I had a vague impression that they might not want me to subject myself to the ACBA process, but I did it nevertheless. ... I did not have a concern about the fairness of the process."

Santorum said he did not know Smith was going to appear before the ACBA. "Had I known, I would have suggested that he not do it," Santorum said.

Lawyer James W. Carroll Jr., who chaired the ACBA judiciary committee when Smith appeared before it, said, "If it wasn't for that interview, he might not be a judge today."

Lawyers and bar association members, Smith said, are uniquely qualified to assess the experience level of colleagues because they have had professional dealings with them.

"The public is free to accept or reject those views. The U.S. Senate is free to accept or reject those views," Smith said.

Gary Gentile, a member of the approximately 7,500-member bar association's board of governors, said he sympathized with the judicial candidates.

"It puts them in a really difficult situation" for a sponsoring senator to give such advice, he said.

"You'd feel compelled to listen to [him] even if you disagreed," he said, "at the same time, knowing intuitively that you'd be better off being present at your own review than being absent."

But Santorum is adamant that local bar associations should not have a role in rating federal judicial nominees.

"These judges are scrubbed and scrubbed and scrubbed in the [U.S. Senate] Judiciary Committee process. How many reviews do we have to do?" he said.

He added: "There's enough politicization in the judicial nomination process as it is right now. Look at how these outside organizations have politicized the judicial process beyond anybody's wildest dreams. I'm just drawing the line. I don't care who you are. The process is going to stay internal to the Senate."

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