Pennsylvania's U.S. senators in controversial judicial deal

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WASHINGTON -- Pennsylvania progressives are looking to scuttle an apparent backroom deal on judicial nominations that the state's two senators are negotiating.

The arrangement would have Sen. Bob Casey, D-Pa., sign off on Pittsburgh lawyer David J. Porter's nomination to the U.S. District Court for the Western District of Pennsylvania. In exchange, Sen. Pat Toomey, R-Pa., would defer to Mr. Casey on at least three of Pennsylvania's other eight judicial vacancies, according to opponents of the deal.

Neither senator's office would discuss the negotiation, but liberal activists say they've been clued in by people familiar with it. The talks prompted Keystone Progress, a progressive advocacy group, to deliver petitions with 33,000 signatures to both senators' offices this week urging them not to sign off on Mr. Porter's nomination.

Sources familiar with the negotiations said the talks have been going on for more than a year and that no agreement has been reached.

Mr. Porter, a corporate litigator with Buchanan Ingersoll Rooney, declined to comment.

"It's supposed to be a confidential process and I feel bound to abide by that," he said.

Most judicial nominations don't come to light until they've been formally announced by the White House. By then, candidates have been vetted and signed off by both senators from the candidate's state, who have been advised by a committee of lawyers and other constituents.

The Senate follows an unwritten rule that allows either senator from the nominee's state to unilaterally and quietly block a nomination. Keystone Progress and other groups are pressuring Mr. Casey to use that unofficial power, known as "blue slipping" for the color of the document senators sign to either recommend or reject a potential nominee.

In a post on its website, Keystone Progress characterized Mr. Porter as an extreme conservative who opposes abortion rights, gay marriage and restrictions on gun ownership. It notes that Mr. Porter leads the Lawyers Chapter of the Pittsburgh Federalist Society, that he opposed the 2009 nomination of Supreme Court Justice Sonia Sotomayor, that he wrote a Post-Gazette opinion piece asserting that the Affordable Care Act is unconstitutional and that he is a member of the Republican National Lawyers Association.

Buchanan Ingersoll Rooney's online biography of Mr. Porter notes only his experience and expertise in constitutional issues, election law, labor agreements, media law, copyright and trademark matters, banking, shareholder and partnership disputes and civil rights. It also notes that he already has served the U.S. District Court for the Western District of Pennsylvania as a court-appointed master and mediator.

Opponents of his potential nomination say he is too much of an ideologue to be on the bench.

"David Porter is really a right-wing activist," said Michael Morrill, executive director of Keystone Progress. "It would be like nominating me for a judgeship. ... I'm an activist with an ideology. That's not what we need in a judge."

He said he has never met Mr. Porter but knows him to be a passionate activist unlike any other federal judge or nominee that came to mind.

"The overwhelming majority of judges at every level are fair, but when you have somebody who comes to the bench with an outlook so far away from the mainstream view and so passionate about that view, it's hard to believe he would be a fair and even-handed judge," he said.

Pittsburgh attorneys who have worked on cases both with and against Mr. Porter view him differently.

"He's a brilliant lawyer and he's fair-minded," said attorney Tina O. Miller, who has known Mr. Porter for several years. "I have never found David to be overly political. Whether it's as a lawyer advocating for his client or in bar association and community activities, he has always been willing to listen to everyone's viewpoint and give consideration to everyone's viewpoint and to be fair. "Those are exactly the qualities I would want in a judge."

Mary Austin, a health care attorney in Pittsburgh who considers herself a liberal, said she has never seen ideology influence Mr. Porter's legal work in the decade she has known him.

"I really don't know [his politics]. We've never discussed it," she said. What she does know is, "David is a very good lawyer and has shown very good sense."

Still, Keystone Progress and other groups, including the Pennsylvania Coalition for Constitutional Values, remain concerned.

"A lot of folks don't realize that decisions made by judges appointed to lifetime posts affect day-to-day lives, whether it's through labor laws, whether it's environmental laws, whether it's women's issues," coalition co-chairwoman Christine Stone said. "We do not believe Mr. Porter can be impartial because his out-of-the-mainstream views really impact his ability to be independent."

Allegheny County Councilwoman Heather Heidelbaugh, co-chairwoman of the Republican National Lawyers Association, said Democrats are mischaracterizing her friend and colleague as a firebrand rather than portraying him accurately as a thoughtful intellectual with a calm, measured demeanor.

"Mr. Porter has opinions, as do most people on the planet, but he is not such an ideologue in any way, shape or manner that would interfere" with a judicial role, said Ms. Heidelbaugh, a partner at Leech Tishman Fuscaldo & Lampl.

She said few federal district court cases involve political ideology. Rather, they tend to involve criminal complaints, commercial law, labor disputes and personal injury.

Ms. Heidelbaugh serves on an advisory committee helping Mr. Casey and Mr. Toomey recommend judicial nominations that they will forward to the White House. She said her comments about Mr. Porter reflect her own opinion and not the advisory panel's work.


Washington Bureau Chief Tracie Mauriello: tmauriello@post-gazette.com or 703-996-9292.

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