Jones said lawyers who argue death penalty and abortion cases before the 5th Circuit often give him grief when they find out he spoke out in favor of Smith's nomination.
"They say, 'I really wish you hadn't done that,'" Jones said with a laugh.
Somin, who himself wrote a Supreme Court amicus brief for the Washington Legal Foundation in favor of striking down the federal health care law's individual mandate, said Smith hasn't been shy about taking positions many conservatives wouldn't support.
"You don't need to take my word for it because the decisions are available in the public record," he said.
Somin cited two of Smith's opinions as examples: a 2003 decision that struck down a San Antonio ordinance restricting the location of adult businesses on First Amendment grounds, and a 2001 ruling in a drug case that held a homeowner has a "reasonable expectation of privacy" when police searched a vehicle owned by somebody else but parked on the homeowner's driveway.
More recently, Smith wrote the March 2 opinion when a three-judge panel upheld a landmark ruling that the Army Corps of Engineers is liable for New Orleans property owners' claims that shoddy work on a shipping channel caused billions of dollars in damage from Hurricane Katrina's storm surge. The panel rejected the federal government's argument that it is entitled to immunity from the plaintiffs' lawsuits.
"Judge Smith was not buying the company line," said Joe Bruno, one of the plaintiffs' lawyers in the case. "They affirmed a decision when the government thought it was a slam dunk for them."
James Garner, who also represented plaintiffs in the same case, described Smith as a "straight, fair, smart judge."
"He zeros in on the issues and asks the right questions," Garner said.
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