REED

WASHINGTON — Judge William E. Smith “has served well” on Rhode Island’s federal court, U.S. Sen. Jack Reed said Friday, but his nomination to the federal appeals court in Boston “is a different situation,” colored in part by what Reed depicted as President Bush’s failure to consult with senators about his choice.

Meanwhile, Judge Bruce M. Selya, the federal appeals judge whom Smith would replace, called on Reed and U.S. Sen. Sheldon Whitehouse to consider the nominee’s qualifications — “excellent,” in Selya’s view — rather than Mr. Bush’s selection procedure.

While couched in decorous legal language and “no comments,” the exchanges about the Smith nomination afford a rare Rhode Islander’s-eye-view of the bitter partisan disputes that have erupted in Washington over a number of Mr. Bush’s choices for federal judgeships. The discussion about Smith echoes what was said last month when Mr. Bush chose U.S. Magistrate Judge Lincoln D. Almond for an opening on the U.S. District Court, where Smith has sat for five years.

In the cases of Smith and Almond — neither of whom appears to qualify as Mr. Bush’s brand of conservative Republican — the counterpoint may have less to do with their qualifications than with the larger backstage struggle for power over the judicial branch of government.

Democrat Reed supported Republican Smith’s nomination to the U.S. District Court when it cleared the Senate with no opposition in 2002. Reed said Friday, however, that Smith should get another extensive review before he is seated on an appeals court where judges are “literally making the law” because they rule on disputes over weighty constitutional issues.

Reed said he will take a hard look at Smith’s qualifications before he will decide on the 47-year-old judge’s fitness to sit on the 1st U.S. Circuit Court of Appeals.

Mr. Bush nominated Smith on Thursday to take what has long been the unofficial “Rhode Island seat” on the six-judge circuit court, which also includes Massachusetts, New Hampshire, Maine and Puerto Rico. The Senate must confirm Mr. Bush’s nomination. By tradition, Rhode Island Senators Reed and Whitehouse hold considerable power over the nomination.

Reed noted, however, that the nomination must be considered by the Senate Judiciary Committee. He said he did not know whether there is enough time for that panel, and later the full Senate, to consider Smith before Mr. Bush leaves office in January 2009.

Whitehouse, who sits on the Judiciary Committee, declined to be interviewed about Smith on Thursday, but he joined Reed in a terse, printed statement pledging a “thorough and independent review” of the judge’s qualifications for elevation to the appeals court.

In September, Whitehouse sharply criticized what he depicted as Mr. Bush’s failure to consult with senators or seek a consensus candidate, suggesting that it was already too late for the Senate to consider nominees for openings on the circuit court or the District Court where Smith sits. Whitehouse has since softened that position but has given no indication of whether he would support Smith or Almond, Mr. Bush’s nominee for the lower court.

“The central point” of the coming Senate inquiry into Smith’s nomination “obviously is reviewing what he’s done” as a judge for several years, Reed said.

“The Constitution requires the advice and consent of the Senate” in judicial nominations, added Reed, once a lawyer at Edwards & Angell, the prestigious Providence law firm that employed Smith until 2002. “When the president doesn’t seriously seek the advice” of the Senate on a nomination such as Smith’s, it can affect the Senate confirmation process, Reed said.

He said the Senate has much study ahead on Smith’s record. If the White House had conferred with senators on the way to selecting Smith, “a lot of that would already be done by now,” Reed said.

It is not clear how the White House settled on Smith. Months before Republican Sen. Lincoln D. Chafee was defeated in the 2006 elections, he announced that he would suggest to Mr. Bush that former Rhode Island Supreme Court Justice Robert Flanders be the next judge on the federal appeals court.

The nomination went nowhere — “a mystery to me,” Chafee said last month, and a cause of great frustration. Chafee also said he believed that the Bush White House was forcefully attempting to shrink the traditional power of senators to suggest judicial nominees to the president.

Reed said yesterday that Flanders — whom he and Whitehouse would have supported — would have moved well along the Senate confirmation process if Mr. Bush had accepted Chafee’s suggestion, even after Republican Chafee left the Senate.

jmulligan@belo-dc.com