Jimmy Carter's judges.

JIMMY CARTER'S JUDGES

THE WELL-ORCHESTRATED attack on Robert Bork is the culmination of a long campaign by left-wing ideologues to discredit Ronald Reagan's judicial appointments. The campaign has included assaults on individual nominees such as J. Harvie Wilkinson III, Alex Kozinski, Jefferson Sessions, Daniel Manion, and even William Rehnquist, as well as the general, insistently repeated charge that Reagan is lowering the quality of the federal bench by appointing ideologically biased judges.

This charge, directed at Reagan, is absurd. In a systematic study of federal appointments going back to Lyndon Johnson's Administration, Professor Sheldon Goldman of the University of Massachusetts at Amherst, a leading authority on the judicial selection process, concluded: "With few exceptions Reagan appointees to both the district and appeals courts have been men and women of accomplishment. . . .' According to Professor Goldman, "If we consider previous judicial or prosecutorial experience significant preparation for a federal district judgeship, then the second-term Reagan appointees were the best prepared group of appointees of all the Administrations surveyed.'

The outrage directed at Reagan would be better directed at his predecessor. Jimmy Carter used explicitly political litmus tests to review appointees. He gave the nation its first judge to be impeached in over fifty years (Harry Claiborne) and another, Alcee Hastings of Florida, who has been referred to Congress by his Circuit Judicial Council and the Judicial Conference of the United States for possible impeachment. Carter unabashedly enforced a policy of race and gender quotas in the appointment of federal judges. And he allowed the selection and confirmation process to become infused with a spirit of political and ideological partisanship that made a mockery of his professed dedication to the merit selection of federal judges. Moreover, he tried to institutionalize these biases, perverting what has traditionally been a relatively non-partisan judicial selection process.

Judging by the Numbers

THE TONE of the Carter Administration's approach was set by Carter himself when he said, "If I didn't have to get Senate confirmation of appointees, I could tell you flatly that 12 per cent of my appointees would be black and 3 per cent would be Spanish-speaking and 40 per cent would be women and so forth.'

Carter proved as good as his word: 16 per cent of his circuit-court appointees were black and 3.6 per cent were Hispanic. In several instances, Carter openly permitted race or gender to override basic standards of moral and legal fitness for appointment to the bench.

Consider Carter's appointment of U. W. Clemon, now a U.S. district judge for northern Alabama. Clemon had been a feisty civil-rights activist with the NAACP Legal Defense Fund and was subsequently elected to the Alabama State Senate. The ABA Committee rated Clemon "not qualified' by a vote of 12 to 2. The hearings prompted by this rating were lengthy, but a sizable portion of the inquiry was devoted to denouncing the ABA's integrity in criticizing Clemon rather than to investigating Clemon's well-documented shortcomings.

In his reply to the Senate Judiciary Committee questionnaire, Clemon falsely denied that there were federal and state tax liens against him. Clemon's defense before the Judiciary Committee was that the tax liens had escaped his attention and that he had been careless in responding to the questionnaire. The hearing record also showed that Clemon had been apprehended for speeding at nearly 100 mph en route to the State Senate. He had declared at the time, on the State Senate floor, that he would continue to exercise his senatorial right to speed as long as white senators were also allowed to do so. Other charges against Clemon concerned his removal from the board of the Birmingham Area Legal Services Corporation in connection with allegations of cronyism and other improprieties. These various peccadillos raised questions about Clemon's judicial temperament, if not his integrity. But neither these considerations nor the ABA's "not qualified' rating proved important to the Democratically controlled U.S. Senate. Clemon was confirmed.

During the Carter years, ideology pervaded the entire judicial selection process. Carter used his so-called "judicial nominating commissions' to screen candidates for federal judgeships. These panels were touted as a means to eliminate politics from the process and to restore merit selection. In fact, the commissions were overwhelmingly partisan. Stuides show that some 87 per cent of the members of Carter's circuit-judge nominating commissions were Democrats, and 79 per cent of the judicial candidates they recommended were Democarts. One report found that as of October 1980, 97.8 per cent of the judges Carter ultimately selected were Democrats. Yet when nominees produced by this process were introduced before the Senate Judiciary Committee, they were described, with no hint of levity, as the choices of "bi-partisan' nominating commissions.

Carter's Litmus Tests

THE MODUS OPERANDI of the commissions was straightforward. They grilled candidates on their political views. They explicitly adopted the kind of grossly improper "litmus tests' that the Reagan Administration has falsely been accused of using. One major study of the Carter nominating-commission process reports:

Applicants had often been questioned [by judicial selection panelists] about nine contemporary social issues. . . . The four areas which received most attention were the Equal Rights Amendment, affirmative action, First Amendment freedoms, and defendants' rights. Candidates were also asked about abortion, capital punishment, busing, economic regulations, and a number of pending Supreme Court cases.

Some 41 per cent of the members of Carter's circuit-judge nominating commissions responding to a survey indicated that candidates were asked their views on the abortion issue during commission interviews. Several commissioners later confirmed that the political slant of the process heavily influenced the deliberations and recommendations of the commissions.

When judicial nominees are introduced to the Senate Judiciary Committee, the traditional ritual includes reporting that the ABA Committee on the Federal Judiciary has rated the nominees as "qualified,' "well qualified,' etc. But during the Carter Administration, it also became established procedure to recite evaluations from the Federation of Women Lawyers' Judicial Screening Panel and the National Bar Association, an association of minority (predominantly black) lawyers. The Women Lawyers' panel purported to determine the adequacy of a nominee's "commitment to equal justice,' while the National Bar Association decided the acceptability of his "attitude on racial and social issues.'

The ideological prejudices of these groups became institutional components of the Judiciary Committee's "advise and consent' procedure. Here is the official introduction during a typical confirmation hearing on three nominees during the Carter era: "The Federation of Women Lawyers' Judicial Screening Panel has reviewed the qualifications of the nominees and found that Professor Aldrich has demonstrated an exceptional commitment to equal justice, Mr. Holschuh has demonstrated an adequate commitment to equal justice, and Judge White has demonstrated significant commitment to equal justice.' The charade proceeded as though these special-interest groups were performing a high public service of disinterested professional evaluation. In consequence, legitimate standards of qualification, competence, and integrity became hopelessly obscured and compromised.

Without a Qualm 

THE ABA itself colluded with the Carter Administration to disguise the mediocre quality of some appointments. As my colleague Peter Ferrara has reported, Brooksley Born, who served on the ABA Committee during the Carter years, says that Administration officials secretly lobbied the ABA for favorable ratings for minority judicial nominees. With no apparent compunction, Born notes that on at least one occasion, the ABA responded to this political pressure by changing a nominee's rating:

There have been instances, particularly on minority candidates and women, where there was much interaction with the Attorney General and the White House. Much of the discussion focused on how standards should be applied and we discussed the standards in rather general terms. In one case, the Attorney General asked for a reconsideration. We did a new investigation and got a new rating of "qualified.'

The racial double standard in ABA ratings prompted by the Carter procedures lingers on. During the hearings on Reagan nominee J. Harvie Wilkinson, for example, ABA Committee member Stewart Dunnings explained his vote finding Wilkinson "not qualified' in this way: "His admission to the bar did not comply with our rules, where we have announced that they should have at least 12 years. Now, we in the past, of course, have waived that, when you have an affirmative-action candidate--and certainly he did not fall within that category.'

In the cases of several Reagan appointees, including Wilkinson, Senate liberals complained that the nominees received ABA ratings of only "qualified,' as if that rating were equivalent to unqualified. But a straightforward "not qualified' sometimes carried no dire consequences for Carter nominees. Besides Clemon, the Senate confirmed two more Carter nominees rated "not qualified.' Twenty-two Carter district-court nominees were rated "not qualified' by a minority of the ABA Committee, but such mixed ratings rarely prompted closer scrutiny of the nominee.

Robert Aguilar, for instance, was rated "not qualified' by a minority of the ABA Committee. Mr. Aguilar had not only served less than one year in his position as a local trial judge in Santa Clara, California, but had also dropped out of law school before completing his degree. Since a law degree might reasonably be considered a basic qualification for appointment to the federal bench, some questioning of Aguilar would have seemed in order. But the only question raised in the Judiciary Committee was a personal query from Senator Heflin about the health of Senator Cranston's son, who had just been injured in California.

Judicial selection has never been completely apolitical. But to understand fully the havoc wreaked by Carter on the integrity of the process, it is necessary also to look at the treatment accorded some of his best-qualified appointees.

Cornelia G. Kennedy was nominated for the Sixth Circuit Court of Appeals, having served with distinction as a federal district judge in Michigan since 1970. She was rated "well qualified' by the ABA Committee. But under the strangely skewed standards of the Carter era, Judge Kennedy was subjected to a prolonged and bitter confirmation challenge largely because she had been criticized by the NAACP Legal Defense Fund. Her adherence to the Federal Rules of Civil Procedure in dismissing frivolous and contrived cases was also roundly criticized. The Democratically controlled Judiciary Committee found these criticisms so disturbing that it called some 24 expert witnesses to testify about Judge Kennedy. The judge appeared before the committee in July of 1979 and had to return two months later to confront the rising attack on her record.

Rarely, if ever, have considerations of raw partisanship and ideological prejudice so thoroughly distorted the judicial selection and confirmation process as under Carter. It is greatly to Reagan's credit, and one of his unsung achievements, that he has succeeded in restoring the integrity of the process--at least on the executive branch's side.