Winning Over Dianne Feinstein and Barbara Boxer

Republican senator secures Ninth Circuit nomination for his brother

The Gang of 14 Agreement in May 2005 sharply diminished the threat that Senate Democrats would filibuster George W. Bush’s judicial nominees. But Bush still had to contend with the Senate Judiciary Committee’s blue-slip practice, which, as implemented by Republican chairman Arlen Specter, gave Democratic senators an effective veto over nominations to positions in their home states.

Bush’s nomination of Milan Smith Jr. to a seat on the Ninth Circuit in February 2006 starkly illustrates the power that the blue slip conferred on Democratic senators.

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By the usual standards, Milan Smith Jr. was an unlikely candidate for a Ninth Circuit seat in California in 2006.

For starters, Smith would turn 64 years old in April 2006, so he might be expected to have a short judicial tenure.

Milan D. Smith Jr.

More importantly, there was nothing in Smith’s record to indicate that he subscribed to the conservative judicial principles that George W. Bush’s judge-pickers were looking for in his nominees. He had made news in 1991 when he resigned from the state’s Fair Housing and Employment Commission to protest Governor Pete Wilson’s veto of legislation that would have expanded the commission’s power in cases of sexual harassment: “Sure, I’m a Republican,” he explained, “but I’m a Republican with a heart.”

Nor did Smith’s legal specialty in real-estate transactions and business structures have much bearing on the legal questions that occupy the Ninth Circuit.

In short, if you were making a list of candidates who would be effective in combating the Ninth Circuit’s reputation as a bastion of liberal judicial lawlessness, Smith would not be on that list.

But Smith had two big advantages. One was that under Specter’s blue-slip practice Bush wouldn’t be able to win the Senate’s confirmation of a nominee to a California seat in the Ninth Circuit unless that nominee won the support of California’s two Democratic senators, Dianne Feinstein and Barbara Boxer. Feinstein and Boxer had defeated Bush’s first two picks for California seats on the Ninth Circuit (one never nominated, the other filibustered). The White House was keenly aware that it needed to have them on board.

Smith’s other big advantage was that one of his nine siblings was Oregon’s Republican senator Gordon Smith.

Gordon Smith had planted the seeds of his older brother’s nomination years earlier, at the outset of Bush’s presidency in 2001. As his Senate questionnaire response reveals, Milan Smith first met with White House counsel Alberto Gonzales about a possible judgeship in April 2001. Gordon Smith and Barbara Boxer “are very good friends,” Milan Smith would attest, and a key part of Gordon’s pitch for his brother was that Boxer would support him. The White House nonetheless passed him over several times.

At Smith’s confirmation hearing in April 2006, Boxer, Feinstein, and Gordon Smith each made remarks introducing Milan Smith. Boxer proclaimed Smith to be a “strong supporter of equal rights for women” and called the occasion a “very happy day for me.”

Three weeks later, the Senate unanimously confirmed Smith’s nomination.

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By enlisting Boxer’s support for his brother, did Senator Gordon Smith help Bush fill a seat that would otherwise have remained vacant through his second term? Or did he ensure that Boxer wouldn’t allow anyone more conservative than Milan Smith to fill that seat? It’s impossible to know.

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As Barbara Boxer expected, Milan Smith has been somewhere in the middle of his court—generally more conservative than his colleagues who were appointed by Democratic presidents, generally more liberal than his colleagues appointed by Republican presidents.

Those who thought Milan Smith would have a short tenure on the Ninth Circuit were mistaken. Smith could have taken senior status (or retired) in May 2016. He has instead remained in active status through the last year of Barack Obama’s second term, Donald Trump’s first term, and Joe Biden’s presidency. Now 83, he has said that he wants to “die with my boots on.”

If Smith were to vacate his seat, Donald Trump would have much more leeway in filling it than George W. Bush had. As I will discuss in more detail down the road, the blue-slip privilege over appellate nominees was demoted in late 2017, so a president no longer has to win the approval of home-state senators for his appellate picks.