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March 7, 2007

What kept McKay off the federal bench?

Posted by David Postman at 7:16 PM

Former U.S. Attorney John McKay was in D.C. Tuesday to talk about his firing as part of a wide purge of federal prosecutors around the country. But away from the official hearings he also talked about how he thinks politics may have killed his change to get a new job just weeks before he was fired.

McKay suggested to reporters, according to The Times, "that bitterness over his refusal to pursue the fraud allegations" in the 2004 governor's election "played a part in his failure to win a federal judgeship."

McKay said that during a White House interview with former White House Counsel Harriet Miers, and her deputy, William Kelley, he was asked to explain "criticism that I mishandled the 2004 governor's election."

McKay seemed to blame Congressman Doc Hastings, R-Pasco, for that. Hastings says he had nothing to do with it and that no one from his office tried to stop McKay from getting the judgeship.

But did McKay's approach to allegations of fraud surrounding the 2004 governor's race hurt his chance of getting the federal court nomination? Even before his trip to D.C. last fall, McKay had been sidelined in his efforts when a bipartisan judicial selection panel left his name off a list of three finalists sent to the White House.

I talked to three members of the panel today, two Republicans and a Democrat. (There are three from each party on the committee.) They say the election did not come up in any of their deliberations. To get on the finalists list, a candidate has to get at least four of six votes on the panel. The committee members wouldn't discuss specific votes, but it has been reported that McKay didn't make the list.

Seattle attorney Jenny Durkan, the Democratic co-chair of the selection committee, said that given what is known now about McKay's removal as U.S. Attorney and what he said about his interview with Miers, she's convinced politics sunk his chances for the federal bench:

"Based on what I've read, with the White House almost simultaneously rejecting him for a judgeship and firing him, it's clear to me he was disqualified for political reasons. The White House had political reasons and the Justice Department had some political agenda."

CHUCK KENNEDY/MCCLATCHY


McKay in D.C. this week.

She said that McKay was a victim of a fight raging "over the soul of the Republican Party" and he was seen as too liberal by some party activists.

Durkan said it was strange that McKay didn't make the list of finalists.

"There's not a process I'm aware of, on the Republican side or Democratic side anywhere in the nation, where a sitting U.S. Attorney, appointed by the president, wanted to be considered for a federal judgeship and wouldn't be on the list automatically. It just isn't done. He's a presidential appointment. He's been vetted. He's your law enforcement guy. He's going to panel after panel sticking up for the Patriot Act."

When I told that to Chehalis attorney J. Vander Stoep, the Republican co-chair, he said, "I'll just respectfully say, that's obviously an overstatement."

Vander Stoep and Durkan played major roles in the 2004 election dispute. Durkan was part of the Democrats' legal team and previously was Gov. Christine Gregoire's personal attorney. Vander Stoep was a close advisor to Republican Dino Rossi and his legal team, though he did not argue the case in court.

Vander Stoep said he first met McKay the day the U.S. attorney was interviewed by the selection panel. Durkan has known him since they were both children, considers him a close friend and calls him Johnny.

Vander Stoep said the 2004 election did not come up in McKay's application for a judgeship, during meetings or afterwards:

"Neither on the record or off the record as part of the judicial screening process was anything related to the 2004 governor's election discussed."
Republican committee member Dick Derham says the same. He said in a room of attorneys, all would know it was inappropriate:
"None of us talked about the Rossi election case or John's handling of it or not handling of it. I don't know what he did and I have no reason to think there was a smoking gun that he ignored."

Derham said the committee members had detailed conversations about the candidates after each were interviewed. "And we worked through those until we had three candidates that four of us or more felt were the best candidates for the federal district court," he said.

Derham said he was looking for someone ready today for the job.

"I did not feel my job was to find somebody who would be very good after on the job training if we had someone who was very good right now. You want someone who's got all of the qualifications. Since no one is perfect, you end up with some subjective balancing of which is more important. Personally, I feel very comfortable that we set forward the maybe the three best federal trial judge candidates that were before us.

"John doesn't know what we were all thinking. And nobody outside the process knows what we were going through. I can understand a person feeling that he's very qualified and therefore if he wasn't selected then it must be for some personal reasons.

"John is well respected for the things that he has done. I do not want to take that away. But as we compared him to the others, we ended up saying others are also very good at what they have done, and we think they would be better federal trial judges on day one."

The White House meeting between McKay and Meirs is a curiosity. Durkan, Vander Stoep and Derham said they didn't know about it until reading about it last fall. They didn't know the 2004 election came up in the interview until today.

The judicial selection committee is designed, in part, to be a filter for the White House and to help take politics out of the system. With three Democrats and three Republicans, the requirement for a majority vote would tend to keep out extremes of either party. The White House has rejected all finalists before. But no one could remember a time when an applicant who didn't make the list showed up for an interview with the White House counsel.

"It means that he has friends in the administration,' Vander Stoep said. "There's no other reason that I can think of for how he would have been given the extra review." Derham said it could have just been a courtesy. Or maybe the White House liked McKay a lot and wanted to give him a chance despite what the selection panel thought.

Durkan thinks, as McKay does too, that the call to McKay from Hastings' chief of staff inquiring about any voter fraud allegations in the 2004 election had something to do with Miers mentioning the election dispute.

"I think Hastings could have had more impact than he appreciated. I have no reason to disbelieve his statement that the call was the only call. But clearly whatever was said reverberated in the halls for a long time.

"If in the fall of 2006 John McKay is being asked about the governor's election contest it had a shelf life that none of us could have predicted."

However, McKay says he told only his two closest aides about the call.

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