Last spring, Smith announced that former state Rep. Ray Baum was his top choice to replace U.S. District Judge Robert E. Jones, who took senior status the previous year. Although presidents choose federal judges, they rely on the state's senior senator from their party for guidance. (The full Senate must confirm appointments.) This was Smith's first chance to take on that role, and, by most accounts, he blew it.
Baum raised eyebrows on a couple of counts. First, he was chosen without a selection committee, which senators have used in the past to ensure quality. Second, the La Grande Republican was a close friend of Smith's and represented Smith Frozen Foods, the senator's family business. Finally, he is considered lacking in credentials, with limited trial experience.
White House interviews reportedly didn't help. Although The Oregonian reported that Baum "withdrew from consideration" in December, it was widely known in legal and political circles that the Bush Administration nixed his nomination after talking to top judges and lawyers in Oregon. "What I heard is that they were looking for someone with a bit more experience," says Dan Lavey, a former Smith aide who wasn't involved in the process.
Baum, for his part, says he never got a straight answer from the White House as to why the process "bogged down." He concedes that "there was a perception" that he was a legal lightweight, but he doesn't agree. "I've tried more cases than many judges," he says. "But when you practice in this part of the state, people don't know you."
There's a second theory as to why Baum bombed. Some lawyers, including Republicans, believe that with the Senate now under GOP control, the White House is looking to put hard-line conservatives on the federal bench. Baum, while pro-life, was viewed as a non-ideological moderate Republican during his four
terms in the Oregon House.
If Baum's politics were a problem, it's not clear that the right-wingers in the West Wing will be any happier with the new choices. This time, Smith set up a selection committee (which included former Labor Commissioner Jack Roberts and ex-state Sen. Neil Bryant), which received applications from 19 candidates. Last week they interviewed 10, and suggested three--Mosman, Hubel and Tongue--for Smith's consideration. None is considered highly conservative.
While legal observers are generally impressed with the top three names, many question whether Smith did enough to drum up interest The position was never advertised, and groups such as Oregon Women Lawyers told WW they were never contacted. Sources say all 19 applicants were white men.
Smith's office declined to comment on why Baum bombed, but according to spokesman Chris Matthews, that experience has nothing to do with Smith's decision to use a selection committee this time. Smith is expected to run the three finalists by Democratic Sen. Ron Wyden and pass them on to the White House.
As for the rumors that Baum was too moderate, Matthews says, "The president has made it clear that there is no ideological litmus test when it comes to appointing judges."