WASHINGTON — The Obama administration is considering a Washington, D.C., attorney and former adviser to the president’s campaign to fill an appeals court vacancy created by the resignation of veteran Judge Robert Henry of Oklahoma, the Tulsa World has learned.
If officially nominated for what is viewed as an Oklahoma seat on the court, Keith Harper is expected to draw strong opposition from key Oklahoma Democrats and Republicans.
The White House move to vet Harper for the slot on the Denver-based 10th U.S. Circuit Court of Appeals is being described as an “insult” to the state and even “stupid.”
Opposition appears to be coalescing around the fact that Harper is not from Oklahoma and the way the White House has excluded certain key players from the process to fill the post.
Republican U.S. Sen. Jim Inhofe vowed to do whatever needs to be done to block the nomination, if it ever gets to the Senate.
Inhofe’s options range from the so-called “blue slip” process, which allows senators to make their wishes known privately on judicial nominations and can be used to kill a nomination, to an outright hold.
“It is stupid,” he said. “If they are serious about doing something with this guy, there were ways they could have done it that would have been much more palatable to us.”
He said the White House’s decision not to even contact the state’s lone congressional Democrat, Rep. Dan Boren, and other key players almost would be enough on its own to draw his opposition.
Boren also expressed his unhappiness with the way the White House has handled the matter.
“I can assure you that this will not stand,” he said.
In the past, Boren said, the White House has worked with all interested parties on efforts to fill other key federal posts in Oklahoma.
“In this instance, that is not the case,” he said.
“The White House has not collaborated with us on this choice at all, and it is my belief that whoever the nominee is, they should be from Oklahoma.”
Boren pointed to a 2010 Congressional Research Service report that indicates the seats on the 10th Circuit have remained attached to the states as they are today for several decades. Those seats are not assigned legally to Oklahoma and the other five states that make up the 10th Circuit but by tradition.
Oklahoma has had its two seats on the court for decades.
That report also points out federal law does require that judges “reside” in the circuit at the time of their appointment.
Gov. Brad Henry clearly has reason to be more interested than others in who takes the position.
Robert Henry, who is resigning, is his cousin, and the term-limited governor at one time reportedly was letting others know he might be interested in looking at the post for himself.
The governor also endorsed Obama during his run for the White House, which presumably would guarantee Henry a voice in filling such slots.
Still, he offered a brief, somewhat muted response to the Harper development and avoided any criticism of the White House.
“I’ve always believed the 10th Circuit Court post was an Oklahoma position and should be filled by an Oklahoman,” Henry said. “I also believe there are plenty of highly qualified Oklahomans who would serve honorably on the court and should be given the utmost consideration.”
Other Oklahoma Democrats think a stronger response is needed in this case.
“This is nothing personal against Mr. Harper. He may be very well qualified to be a circuit judge,” said Oklahoma City attorney Dan Webber, who served as a U.S. attorney during the Clinton administration.
“The fact is he is not an Oklahoman. His nomination would be an insult to Oklahoma, especially to its legal community, and to Oklahoma Democrats. It is the rough equivalent to treating Oklahoma like Guam.
“Even the president’s supporters, including me, need to speak out and push back on this.”
Oklahoma’s junior U.S. senator, Republican Tom Coburn, did not respond to a request seeking comment even though he is a member of the Senate Judiciary Committee, which handles judicial nominations.
Harper also did not return a phone call, and the White House declined to comment.
According to information on the website of the Washington, D.C., law firm, Kilpatrick Stockton, which lists him as a partner, Harper focuses his practice on litigation and American Indian affairs.
He has been counsel in a decade-old class-action case filed on behalf of 500,000 Indians against the federal government, which recently culminated in a $3.4 billion settlement.
A member of the Cherokee Nation of Oklahoma, Harper served as a principal adviser for President Barack Obama’s campaign in 2008 and later as a member of the Obama-Biden transition team.
He received degrees from the University of California-Berkeley and New York University School of Law.
Chad Smith, principal chief of the Cherokee Nation of Oklahoma, said the tribe has not taken an advocacy position on behalf of Harper.
Smith said, however, he knows Harper and appreciates the administration’s willingness to consider American Indians with his kind of background for appointment to such federal positions.
In addition to the governor, several names have been mentioned as potential nominees for the 10th Circuit slot, including former Attorney General Michael Turpen, Assistant U.S. Attorney Scott Williams and U.S. Magistrate Judge Robert Bacharach, all of Oklahoma City.
Recently, the two leading contenders appeared to be Janet Levit, dean of the College of Law at the University of Tulsa, and Oklahoma City attorney Miles Tolbert, former Oklahoma secretary of the environment.