Judging Clinton.

Judicial selection has become an important priority for Bob Dole. Speaking to the American Society of Newspaper Editors on April 19, he said that "the federal judges a President chooses may be his most profound legacy." Then on April 22, from the Senate floor, he called on President Clinton to withdraw the nomination of Charles "Bud" Stack to the U.S. Court of Appeals. The Washington Times quoted a source close to the Senate GOP leadership as saying that all nominees are now "at risk." What's going on here?

In 1992 candidate Bill Clinton pledged to use what he admitted was a litmus test on political issues such as abortion in appointing federal judges; indeed, key left-wing constituencies demanded nothing less. Now that Senator Dole has made Mr. Clinton's judicial-selection record an issue, however, apologists are attempting to sanitize the story. In a "news analysis" in the March 23 New York Times, for example, Linda Greenhouse insisted that the Clinton nominees "comprise [sic] a moderate, mainstream group."

That group includes U.S. District Judge Harold Baer. In January, he threw out evidence including 80 pounds of cocaine and heroin and a drug courier's confession because he said police did not have reasonable suspicion to search her car. Even liberals condemned this decision; USC law professor Susan Estrich (Mike Dukakis's campaign manager in 1988) said it was "dangerously" wrong and "must be reversed on appeal." After universal criticism, Judge Baer last month reversed himself.

Miss Greenhouse described Judge Baer as an "anomaly." But decisions by Mr. Clinton's appointees prove otherwise. A review by the Institute for Justice's Clint Bolick concluded that "Judge Baer is not an aberration among Clinton judges." Mr. Bolick observes that Clinton judges on the U.S. Court of Appeals for the 4th Circuit, for example, rule for criminal defendants more than twice as often as non-Clinton judges. Some Clinton appointees, such as Rosemary Barkett on the 11th Circuit, have ruled for the defendant in every criminal-law opinion they have written. In Judge Barkett's case, this continues a pattern she established before her appointment. While on the Florida Supreme Court, she voted against the death penalty for reasons including "learning problems" or "emotional deprivation" suffered by murderers. In 1988, she blamed all youth crime on the social system, and in 1992 she said a heinous murder was caused by "discordant racial relations." In 1989, she wrote an opinion declaring unconstitutional police searches of interstate buses for drugs even with the passengers' permission. She compared police officers to Hitler's SS and to the agents of "white supremacist South Africa." The Supreme Court reversed her.

In fact, Judiciary Committee Chairman Orrin Hatch observed of Mr. Clinton's appeals-court appointees that "more than half . . . have issued or joined activist opinions that have been sympathetic to criminal defendants at the expense of legitimate law-enforcement interests, or that have sought to substitute their policy preferences for those of the people as expressed in written law."

By the time Mr. Clinton nominated H. Lee Sarokin to the U.S. Court of Appeals, the Almanac of the Federal Judiciary had already named him the most liberal federal judge in New Jersey. He wrote in the West Virginia Law Review that he opposes all detention of criminal defendants before final conviction. He opposes mandatory sentencing, uniform sentencing, and a good-faith exception to the judiciary-created exclusionary rule.

As an appellate judge, he is behaving as expected. In one case, a Delaware jury convicted a man of murdering his elderly aunt and uncle while robbing their home and found several different factors justifying the death penalty. The Delaware Supreme Court and the U.S. District Court upheld the conviction and sentence, and the U.S. Court of Appeals voted 9 to 4 to do the same. Judge Sarokin was in dissent, arguing that a mistake in certain instructions to the jury was sufficient to void the death penalty even though there were sufficient independent grounds to justify it.

Mr. Clinton's record goes beyond the 185 judges he has already appointed. He has proposed elevating James Beaty, whom he appointed to the U.S. District Court in 1994, to the U.S. Court of Appeals for the 4th Circuit. Last fall, Judge Beaty participated in some appeals-court cases, providing a sample of what he would do if named permanently to the higher court. In one case, a Maryland jury convicted Timothy Sherman of double murder. Joined by a liberal Carter appointee, Judge Beaty voted to overturn the conviction because a juror had driven past the house where the murder had taken place to see the tree in which Sherman had hidden the shotgun. The full appeals court is already reconsidering that decision.

Mr. Clinton has nominated Margaret McKeown to the U.S. Court of Appeals for the 9th Circuit. A partner in a Seattle firm with significant Democratic Party connections, she worked pro bono as lead counsel for the American Civil Liberties Union in litigation to keep an initiative off the Washington ballot that would have decided the question of special legal status for homosexuals. She signed pleadings arguing that the very process of direct democracy -- the gathering of signatures to place the initiative on the ballot -- would cause everything from hate crimes and sexually transmitted diseases to depression, substance abuse, and suicide. In addition, she helped persuade the American Bar Association to abandon its officially neutral position on abortion and embrace an abortion-rights agenda. And speaking of the ACLU and homosexual rights, Mr. Clinton has also nominated to the U.S. District Court Susan Oki Mollway, a board member of the ACLU of Hawaii, which is on record endorsing homosexual marriage.

Mr. Clinton decided not to re-nominate some extremists he had submitted to the Democratic-led 103rd Congress. These include Judith McConnell, first nominated to the U.S. District Court in August 1994. On the California Superior Court, Judge McConnell once gave custody of a teenage boy to the homosexual lover of the boy's dead father rather than to the boy's Christian mother. Judge McConnell relied on social workers to conclude that the mother "has consistently . . . interfered with [the boy's] attempt to make independent decisions."

President Clinton's agenda for a more activist judiciary is clear. The Constitution, however, conditions a President's appointment of judges upon consent of the Senate. Senator Dole's recent attention to this issue is heartening -- except that it stands against a very deferential backdrop.

When the issue was raised with then - Minority Leader Dole on Family Forum Live in 1993, he promised one caller: "Give us a majority, and if we don't produce you ought to throw us out." But since taking over in January 1995, the Republican Senate has processed Clinton judicial nominees faster than the Democratic Senate had done for the first two years of his Administration.

The first problem is that the Republican Senate has been handling lifetime appointments to the judicial branch in the same routine way it handles temporary appointments to the executive branch. It considers nearly all nominees without any floor debate and without a roll-call vote. On August 11, 1995, for example, minutes before the Senate adjourned for a recess, Majority Leader Dole, in a nearly empty chamber, asked for "unanimous consent" confirmation of a list of nominees. In less than a minute, the Senate confirmed 53 presidential nominees. Most of these were to patronage positions such as the Marine Mammal Commission, but 11 of them were federal judges.

Second is Senate Republicans' entrenched habit of cutting deals with their Democratic colleagues. Take the strange case of Louisiana Supreme Court Judge James Dennis. President Clinton nominated Judge Dennis to the U.S. Court of Appeals for the 5th Circuit in 1994, but controversy kept even the Democratic Senate from acting. President Clinton renominated Dennis in January 1995, and Senator Orrin Hatch, the new chairman of the Judiciary Committee, agreed to push the nomination. The committee quickly approved it, without a hearing. Just a few days later, the Louisiana press broke a story suggesting the nominee had committed a serious breach of judicial ethics. Senator Thad Cochran, chairman of the Republican Conference, moved to send the nomination back to committee for reconsideration. Against the entire Republican leadership, and over the objections of eight of the ten Judiciary Committee Republicans, Senator Hatch helped defeat the motion 46 to 54 and the Senate immediately confirmed the nomination. Judge Dennis has already issued opinions placing him among the most liberal of President Clinton's appointees.

This puzzling deference, unjustifiable in terms either of politics or of principle, has allowed President Clinton to craft an increasingly activist federal bench. He has appointed as many judges in three years as President Bush appointed in four, 21 more than Ronald Reagan appointed in his entire first term with a Senate of his own party. There is still time, however, for Republicans to establish meaningful principles on which to chart a different path. President Clinton has said he still backs the nomination that Senator Dole wants him to withdraw. What will the Republicans do about the nomination of Charles Stack and other controversial nominees now before them?

Senate Republicans have talked the talk, and now they must walk the walk. If they do not, American voters may just accept Senator Dole's 1993 invitation and throw them out.