Leahy’s Surprise Attack

Tuesday's meeting of the Senate Judiciary Committee was supposed to be a routine affair — a brief consideration of some lower-court judges, a discussion of pending legislation, and a quick adjournment so senators could move on to their next appointments.

It didn't work out that way. Instead, the routine gave way to an impassioned argument that revealed a level of bitterness inside the committee that has not been seen in more than a decade. And that bitterness is not just the result of profound ideological disagreements. Now, it is personal.

The subject was the nomination of Dennis Shedd to a place on the Fourth Circuit Court of Appeals. Shedd is well known and respected inside the committee. He is a former top aide to Sen. Strom Thurmond and served as chief counsel of the committee in the 1980s. He has been a U.S. District Court judge in South Carolina for the last eleven years and was nominated by President Bush for an appeals-court seat on May 9, 2001. He received the American Bar Association's top rating, and had a hearing before the committee on June 27 of this year.

But the committee has not voted on Shedd's nomination, meaning it cannot go to the full Senate for a confirmation vote. Shedd had been scheduled for a vote on September 19, but Democrat Edward Kennedy, who opposes the nomination, asked that the vote be delayed — a standard procedure under the committee's rules. According to those rules, a nomination that has been placed on an agenda but then delayed will be taken up at the next business meeting.

That next meeting was Tuesday. Republicans were sure that Shedd would be on the agenda, but late Monday, they learned that committee chairman Patrick Leahy had removed Shedd's name from the list of nominations to be considered. Orrin Hatch, the committee's ranking Republican, was outraged. This is personal, Hatch said. Everyone knows Shedd, and knows that the committee usually shows some deference to former staff members. But in this case, Hatch charged, Democrats were attempting to "violate, ignore, and/or abuse this rule for the expediency of the desired outcome."

"I am struck by the irony," Hatch said at the meeting, "that several members of this committee who support the rule-breaking removal of the Shedd nomination talk a good game about the importance of judges following the law and not ignoring it when it would suit them to do so. Today we learn that such talk is just talk."

Even Thurmond, the terribly frail 99-year-old Republican who once chaired the committee and made Shedd its chief counsel, made an appearance at the meeting to express his anger. "In my 48 years in the United States Senate, I have never been treated in such a manner," Thurmond read from a prepared statement. "You assured me on numerous occasions that Judge Shedd would get a vote, and that is all that I have ever asked of you. I have waited patiently for over 17 months, and I have extended every courtesy to you."

Speaking to reporters after the meeting, several Republicans echoed Thurmond's charges and all but accused Leahy of lying to them. "I approached him several times" to talk about Shedd, said GOP senator Sam Brownback. "He assured me numerous times that he was going to see that this got through." Hatch also said Leahy had pledged a vote on Shedd. "He promised me," Hatch said. "He promised Senator Thurmond."

It's not entirely clear why Leahy canceled the Shedd vote. It was widely believed inside the committee that at least one, and perhaps two or three, Democrats planned to vote for Shedd, which would easily send the nomination to the full Senate. But it is also true that in recent weeks civil-rights groups have ratcheted up their attacks on Shedd. On October 2, the Congressional Black Caucus sent a letter to Leahy repeating earlier charges that Shedd's record shows "a pattern of insensitivity toward the issues that most affect minorities." In July, NAACP delegates meeting at the group's convention in Houston voted to oppose Shedd's nomination. Shortly afterward, NAACP president Kwesi Mfume wrote Leahy a letter saying that "Judge Shedd's membership to [sic] the Fourth Circuit would further radicalize a court that has practiced judicial activism in a manner that hurts racial and ethnic minorities and disenfranchised Americans."

Now the Shedd nomination, after coming so close to a committee vote, appears to be in limbo. Late yesterday, Hatch, along with Thurmond and Iowa Republican Charles Grassley, sent a letter to Leahy invoking a rarely-used rule requesting a special meeting of the committee. If Leahy agrees, the meeting will be this week. But a meeting is just a meeting. Right now, there is no evidence that Leahy plans to allow Shedd to move forward.

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