Hanging judges.

HANGING JUDGES

PATRICK LEAHY can't stop bragging. "No 'iffy' nominees are going to get through now," he crowed to the New York Times on March 24 after Democrats appeared to have successfully blocked the nomination of Professor Bernard Siegan to the Ninth Circuit Court of Appeals. "The Administration knows it has to send us consensus candidates." Just a year earlier, the Democratic senator from Vermont warned an audience at Georgetown Law School that the Democrats were ready to play "hardball" with judicial nominees. He wasn't kidding.

In 1987, on regaining control of the Senate Judiciary Committee, the Democrats set up a special unit of several full-time staffers to investigate nominees. Within sox months, Robert Bork's nomination had been crushed, and the campaign to "scrutinize" other nominees into oblivion was in high gear. The payoff is praise from Democratic special-interest groups; the price is protracted delays and spurious charges against nominees--leaving the nominees in limbo.

As we go to press, there are 22 appointees awaiting Judiciary Committee action; only five have been scheduled for hearings, let alone votes, in the next month. In the first quarter of 1986, 95 per cent of the 21 pending nominees had had at least one Senate hearing; in the first quarter of 1987, only 50 per cent of 24 pending nominees had had a hearing--and the Democrats have begun to schedule second hearings far more frequently. As a point of comparison, at the end of 1987, with only a year to go in the Reagan Administration, an unprecedented 27 nominees were still pending. (Since 1960, as Tom Bethell has noted, there have never been more than four judicial nominees pending one year before a presidential election.)

On March 24, 1988, Strom Thurmond told the committee's Democrats, "I would again like to express my deep concern over the extremely slow pace [at which] the committee is processing nominations this year." One Republican aide I spoke with, not bound by senatorial courtesy, was more direct: "Some Democratic senators would like to see the process completely stopped." Steve Metalitz, special counsel to the Senate Judiciary Committee and chief of the Democrats' investigative unit, shrugs off charges of delay. "They have nothing legitimate to object to...We're conducting thorough investigations where necessary."

The Democrats' investigations have been thorough indeed. David Sentelle--already a federal district-court judge--waited almost a year to take his seat on the D.C. Circuit because Senator Leahy found out he was a Mason and decided that the Masonic order excluded blacks (it doesn't). Sentelle cleared the committee once Leahy had been browbeaten by some of the 75 or so Mason in Congress, but then Senator Paul Simon put a hold on the nomination until he could ask the ABA what it thought about Masonic judges. In his letter to the ABA, which Simon's staff took more than a month just to mail, Simon said, Yes, of course the Masons don't discriminate, but isn't it possible that individual lodges discriminate? Like, say (nudge, nudge), Sentelle's lodge? The ABA refused the bait so Simon reluctantly withdrew his hold. But the Simon staffer I talked to remains convinced that the ABA dodged an important issue.

Bernard Siegan, head of the law-and-economic-studies program at the University of San Diego Law School, was rated qualified or well qualified by all members of the ABA's evaluation panel and has been endorsed by Alan Dershowitz. Siegan waited nine months for his first hearing (only Senator DeConcini bothered to show up for it), and almost four more months for a second hearing. Dan Popeo, founder and chief counsel of the Washington Legal Foundation (a high-powered conservative alternative to the ACLU) is outraged: "The Siegan nomination is a travesty--it's a disgrace that a man of his ability is being held back by the intellectual pygmies that sit on the committee." Ricki Seidman, a spokesman for People for the American Way, explained that Siegan was "outside the mainstream" because of his concern for economic liberties and because, like Bork, he persists "in saying that the Constitution provides very little protection through the judiciary for basic civil rights and civil liberties." Siegan has just received another packet of questions to answer; after a full year, it seems the commitee still doesn't understand his judicial philosophy. The current betting is that Siegan's name will never come to a vote.

Trial by Rumor SUSAN LIEBELER, the sitting Chairman of the International Trade Commission, has been nominated to the federal circuit court of appeals. She was unanimously rated qualified by the ABA panel, but her nomination also seems to be on terminal hold. On February 23, after 11 months of wrangling, she was passed out of committee, but the Democratic staff can't seem to produce the report, normally pro forma, that must accompany her name to the floor. Among Mrs. Liebeler's crimes: she is a free-trader, nominated to a court that handles many cases involving trade law. The committee also investigated an allegation that once, after a long wait in line, she yelled at a bank clerk. This has led some Democrats to interrogate Mrs. Liebeler at length about her "lack of judicial temperament," painting her, according to one Republican staffer, as "abrupt, irrational--some sort of `pushy bitch.'"

David Treen, a former governor of Louisiana, still couldn't get a hearing nine months after his nomination to the fifth circuit court; his membership in the States' Rights Party over a quarter-century ago upset the NAACP Legal Defense Fund--though the Louisiana NAACP chapter refuses to oppose him. The final straw was the committee's acquisition of an anonymous sources whose unsubstantiated allegations of racism and corruption would have taken more months to clear up. Treen withdrew in late April, noting that he "could not afford to defer my professional and business activities" any longer, while "some persons on the Democrat-controlled committee would just as soon see the vacancy go unfilled until after the election...in the hope that a Democrat will succeed to the White House." Representative Robert Livingstone (R., La.) told me, "David Treen ran the most color-blind administration in the history of Louisiana. The Judiciary Committee has reached a new low."

District court nominees face equally rough times. No hearings have even been scheduled for Paul Gadola, 11 months after his nomination to the Eastern Michigan District Court; Gadola has thirty years' experience as a trial lawyer in the region. Five other nominees have waited for three to eight months for hearings to be scheduled. Vaughn Walker, nominated to the Northern District Court, is clearly doomed--groups opposing his nomination include: the San Francisco Coalition for Civil Rights, the Harvey Milk Lesbian and Gay Democratic Club, Stonewall Gay Democratic Club, Gay Rights Advocates, Feminist Men's Alliance, Alice B. Toklas Lesbian and Gay Democratic Club, and Legal Advocates for Women. Walker's mistake? He represented the United States Olympic Committee in its trademark case against the Gay Olympics.

When the Democrats play the scrutiny game, the Justice Department and the Republican members of the Judiciary Committee have no choice but to play along. As Assistant Attorney General Stephen Markman says, "We don't begrudge the committee its opportunity to look closely at our nominees and scrutinize with great intensity--indeed, I wish that the Congress had taken its role in the advise-and-consent process over the courts as seriously over the past generation--but I do think these individuals are ultimately entitled to their day before the Judiciary Committee. Many of them, for example, have seen their practices suffer considerably as their names have lingered before the Judiciary Committee without action." In January, Robert N. Miller asked President Reagan to withdraw his nomination after an 11-month ordeal, noting that "this protracted process has been an agonizing and distracting odyssey for me, my family, friends, and office."

Then there are those nominees that sweep through. Senator Arlen Specter (R.,Pa.) made quite a show of his opposition to Bork, and now, one staffer told me, "It seems we have a Pennsylvania nominee sailing through every week." "It doesn't take a great leap to see what's going on. He's being rewarded for his sterling efforts in the Bork fight."

Aside from a lack of insider sponsorhip, what makes a nominee controversial? Principally, being "outside the mainstream." As George Smith, Senator Gordon Humphrey's chief aide on the committee, noted, "anyone who appears to have Ronald Reagan's judicial philosophy--or meets protests from liberal constituencies--always seems to encounter difficulties."

Pat McGuigan, Legal Affairs Analyst for Coalitions for America and editor and co-author of The Judges War, faults the Administration: "White House legislative operations is a joke. It's been increasingly ineffective under the leadership of [Navy Secretary-Designate] Will Ball." McGuigan also faults Ed Meese for keeping the ABA in the process--which allows some of the leftist on the ABA evaluating committee to start the "controversy" that is so useful in "forcing" the Judiciary Committee to "scrutinize." Judge Harold Tyler, chairman of the ABA committee, denies the charge, but does note that often "the very issues that troubled us in our considerations, trouble the committee. That's happened over the whole forty-year history" of the ABA's role in the process.

Full Stop WHAT'S NEXT? Pat McGuigan makes a basketball analogy: "They're running a four-corner offense--passing the ball around because they've got the lead, running out the clock." And time is running out for the Reagan Administration. Except the Democrats to claim that it's really not necessary to process nominees at the end of Reagan's term--that it's better to wait for the next Congress. "In a month or so, I expect the current trickle to just stop," says Paul Giordano, an assistant to Senator Charles Grassley (R., Iowa). Of course, the Republicans point out that thirty of Jimmy Carter's judicial nominees were confirmed in the second half of 1980, including one who was confirmed after Reagan's election and one who was confirmed in spite of being rated unqualified by the ABA.

While the Senate plays politics, the federal judiciary remains understaffed. As Don Baldwin, Executive Director of the National Law Enforcement Council, points out: "While the president of the Bar Association and other prominent leaders in criminal justice have pointed out the dire need for judges, the Senate Judiciary Committee is sitting on qualified nominees for political terms. Politics is playing a heavier hand than those people waiting for justice."