The Clinton courts: liberals need not apply.

Think a Democratic President guarantees progressive judicial nominees? Think again. Think about Judith McConnell.

By any measure of nominees for federal judgeships, McConnell was a "ten." With fifteen years' experience as a superior-court judge in San Diego, she had established a judicial record that pegged her as a logical choice to fill an opening on the federal bench for the Southern District of California. Impressed, Bill Clinton nominated her for the seat.

McConnell's fans chuckled when a radical-right group, Phyllis Schlafly's Concerned Women of America, objected to her nomination because the judge had awarded custody of a sixteen-year-old boy to his late father's male partner. After all, the boy's mother had once kidnapped the youth, the boy himself had asked to remain in what had been his father's home, and former California Appellate Court Judge Robert Thompson, a leading conservative, said that McConnell's handling of the case had displayed the "judicial characteristics of impartiality, independence, and the courage to carry them out."

But the Clinton White House wasn't amused. The hint of opposition to McConnell, even though it came from the most extreme fringe of the right, was too much for the President. In February, he withdrew her nomination.

McConnell's case is not an isolated instance. Since coming to the White House in 1993, Bill Clinton has consistently failed to advance nominees for federal judgeships who carry even the faintest whiff of liberalism.

"There are no liberals being placed on the courts by Bill Clinton," says Federal Judge Stephen Reinhardt, of the Ninth U.S. Circuit Court of Appeals based in San Francisco.

Reinhardt, a Carter-appointee who proudly accepts the "liberal" label, fears that he is one of a dying breed of jurists.

"Bill Clinton seems to consider the courts unimportant," says Reinhardt. "To him, judicial nominations are things to be traded for political advantage. They're of no significance to him. I don't think he's biased against liberals. He just thinks they will cause him political trouble, so he won't appoint any."

Reinhardt is positively generous in his assessment of Clinton compared to the columnist and civil libertarian Nat Hentoff.

"When it comes to court appointments, it's like everything else with Clinton--he has no principles whatsoever," says Hentoff. "I see no reason--from the Supreme Court appointments on down to the district-court appointments--to vote for this guy. If he thought it would make him more popular, he'd appoint Caligula."

Indeed, Caligula would probably have a better shot at being nominated these days than a genuine liberal in the tradition of William O. Douglas. Even before January 1995, when Republicans took control of the Senate, which must approve federal-court selections, Clinton specifically sought nominees who were acceptable to conservatives such as U.S. Senator Orrin Hatch, the Utah Republican who considers himself "the gatekeeper" on judicial appointments.

"The President has always pursued judicial selection by consensus rather than confrontation," explains Nan Aron, president of the Alliance for Justice, an association of public-interest advocacy organizations, including the NOW Legal Defense and Education Fund, the Native American Rights Fund, the Sierra Club Legal Defense Fund, the Children's Defense Fund, and the Center for Law in the Public Interest. "He's always sought to reach an agreement with Senate Republicans to avoid any sort of public debate on his nominations."

So fawning has the President been in courting Republican approval that, as of mid-1996, 182 of 187 Clinton judicial nominees that had come to a Senate vote were approved without any Republican opposition. Earlier this year, Bob Dole retreated from an attempt to make judicial selection a 1996 campaign issue when it was revealed that the Republican Presidential candidate had voted for 97 percent of Clinton's nominees.

"Bill Clinton has shied away from putting well-known liberals on the courts. In fact, he's pretty much shied away from putting anyone who is unacceptable to conservatives on the courts," says Aron. "Clinton has failed to take the opportunity to correct the imbalance in the federal courts that was caused by years of extremely conservative appointments to the bench by Reagan and Bush."

Clinton screens out nominees who might upset conservatives, according to Michael Gerhardt, the dean of Case Western Reserve University School of Law. "Reagan and Bush fought for their nominees. That's how they got a lot of conservatives on the court," explains Gerhardt, who has served as an adviser to liberal Democrats. "But Clinton doesn't fight. If there's even a sense that someone might be controversial, he drops them."

By and large, however, Clinton simply avoids progressive nominees in the first place. Clinton's appointees are wealthier and more closely tied to the business and prosecutorial wings of the legal profession than the nominees of Ronald Reagan and George Bush.

"Clinton's picks are far more conservative than Jimmy Carter's," says Ronald Stidham, an Appalachian State University political-science professor who has analyzed the ideological underpinnings of almost 28,000 federal court decisions made since 1968.

"Clinton's appointees are about as liberal as Gerald Ford's," adds Stidham. "In fact, the Clinton judges aren't all that much more liberal than Nixon's."

On civil-liberties issues, federal district-court judges appointed by Carter have issued liberal rulings 52 percent of the time, according to Stidham's research. Ford appointees have been in the liberal column 39 percent of the time, while Nixon's achieved a 37 percent liberal rating. The Clinton appointees ruled on the liberal side only 35 percent of the time, just two percentage points better than the appointees of Reagan and Bush.

On labor and economic issues, Clinton's appointees to court-of-appeals positions have issued liberal decisions at precisely the same rate--50 percent of the time--as have Ronald Reagan's picks.

Perhaps the quintessential Clinton nominee is Supreme Court Justice Stephen Breyer. A multimillionaire with close ties to the Lloyd's of London financial empire, Breyer was portrayed by former U.S. Senator Howard Metzenbaum, Ohio Democrat, as a judge whose rulings had helped "those who have the wealth and resources and hurt the average American who needs some protection." A five-year study by the Fordham Law Review determined that Breyer had a more conservative record on antitrust cases than any judge appointed by Reagan. Consumer activist Ralph Nader labeled Clinton's pick "the corporate candidate for the Supreme Court."

When he was appointed, it was broadly assumed that Breyer would take a prochoice stance in the abortion debate, however, and for many progressives that was sufficient justification for supporting his nomination. After a harrowing few years in the 1980s, when it appeared that Ronald Reagan might actually succeed in building a pro-life majority on the Supreme Court, many on the left were satisfied with any nominee who did not want to return to the days of back-alley abortions.

Rightwing activists took a different approach to Breyer, however. Aware that the high court had a pro-choice majority, and that the vast majority of American voters preferred that abortion rights be maintained, conservatives looked to Breyer's stances on other issues. On economics, in particular, they liked what they saw.

Bruce Fein, a Reagan Administration insider and leading conservative activist on judicial issues, hailed Breyer's appointment as "better than anything that could have been hoped for by George Bush."

The vast majority of appointments made by any President are transitory, with no more staying power than the Chief Executive's term. But appointments to the nation's Supreme Court, courts of appeal, and district courts--837 slots in all--are for life.

As such, they allow the influence of a particular Administration to extend across decades, even generations. Justice William O. Douglas, who was appointed before World War II began, was still writing influential decisions after the end of the Vietnam War. Even now, an appointee of Dwight Eisenhower continues to render opinions on the federal court of appeals, while eighteen appointees of Richard Nixon remain in key district and court-of-appeals positions.

But the real lingering influence in the federal judiciary is that of the Reagan-Bush years. Fifty-six percent of the judges currently sitting in the federal courts were appointed by the last two Republican Presidents.

Of the nine Supreme Court justices, six are Reagan-Bush appointees. Of the 179 court-of-appeals judges, 105 are Reagan-Bush appointees. Of the 649 district-court judges, 364 are products of the Reagan-Bush era.

What makes those figures all the more daunting is that Reagan and Bush were not casual about their appointments. "Ronald Reagan clearly used judgeship nominations as symbols of his philosophy," says Nan Aron. "Through his nominations for judgeships, he articulated his vision for the courts."

In the words of Case Western's Gerhardt, Reagan and Bush packed the courts with white men who were "young, conservative, and committed to a rigid judicial ideology that roughly tracked with Reagan's political ideology."

The Reagan-Bush legacy has been seen in decisions across the country that have undermined civil rights, prisoners' rights, affirmative action, protections for unions, antitrust prescriptions, and a host of other legal standards that were once thought to be sacrosanct.

During his 1992 campaign, candidate Bill Clinton gave every indication that he would--like Democratic Presidents going back to Franklin Roosevelt--appoint a fairly progressive judiciary that would be thick with veterans of the civil-rights, women's-rights, environmental, and labor movements.

Running just a year after George Bush's Supreme Court appointment of Clarence Thomas, a rightwing ideologue widely viewed as a judicial lightweight, Clinton promised to set a higher standard, and to assure that benches around the country were filled by men and women who were sensitive to concerns about sexual harassment, racial discrimination, equal protection under the law, and the sanctity of the Bill of Rights.

This comforted many liberals and progressives, who were distraught after years of Republican domination of the courts. "That frustration over the fact that the court had been held captive for twenty years had built up in a lot of people, and Clinton played on it," Gerhardt says.

But upon his arrival in Washington, Clinton quickly made it clear that he was not about to follow the traditions of past Democratic Presidents, who had proudly nominated federal judges who were labor partisans and civil-rights veterans, such as former NAACP lawyer Thurgood Marshall and Thomas Fairchild, a Wisconsin progressive who ran against Joe McCarthy during the height of the Red Scare.

Instead, Clinton's aides announced that they intended to "depolarize" appointments and shape "a judiciary truly independent of any pre-set agenda, liberal or conservative."

While that sounds noble enough, the translation has been: "No liberals need apply."

"Bill Clinton has not made any effort to move the judiciary in a liberal direction," says Gerhardt. "Actually, he's done everything he can to avoid even the suggestion that he is appointing liberals."

So intent is the President on avoiding any association with the L-word that he has jettisoned virtually every nominee who has become even marginally controversial. Consider the experience of R. Samuel Paz, a Los Angeles attorney who specializes in police-abuse cases. One of the first Mexican Americans nominated to a California-based federal judgeship, Paz was rated qualified by the American Bar Association and strongly backed by California Senator Barbara Boxer. As such, he was far better positioned for a confirmation battle than a host of successful Reagan and Bush nominees.

But when police organizations raised objections to Paz, the President abruptly dropped the nomination. As in the case of Lani Guinier, whose nomination to a top civil-rights post was canceled before she ever got a chance to explain her views, Paz was denied an opportunity to make his case before the Senate Judiciary Committee.

In a pointed letter to Boxer, Paz wrote, "It saddens me to think that I and those other nominees who have acted competently within our profession as advocates can be prevented from serving on the federal bench."

The Clinton Administration said it had to pull the nominations of Paz and Judge McConnell because they could not win approval from a Republican-controlled Senate. But U.S. Senator Paul Simon, Illinois Democrat, who sits on the judiciary committee, isn't so sure. "We're giving up on fights too early," he told The Washington Post immediately after the Paz and McConnell nominations were withdrawn. "I think it is important that we stand up and fight for people who are nominated."

Simon's point is proven by the example of Lee Sarokin of New Jersey, whose appointment to a court-of-appeals position was almost withdrawn after Republicans objected to his record. U.S. Senator Bill Bradley, New Jersey Democrat, demanded that the Clinton Administration stick with Sarokin, and the nominee was confirmed by a comfortable 63-35 Senate vote--a far wider margin than that of Bush Supreme Court nominee Clarence Thomas.

By and large, however, the Administration has proven more likely to switch than fight. Peter Edelman is a prime example. A longtime friend of Bill and Hillary Clinton, Edelman has a wealth of experience. He was an aide to Robert F. Kennedy, he was the director of New York state's juvenile-justice system, and he was a Georgetown University law professor.

Edelman had initially been promised a seat on the powerful District of Columbia Circuit Court of Appeals. But when Republicans objected to the lawyer's liberal credentials, Clinton instead offered Edelman a district-court seat--an appointment Hatch announced he could live with. When far-right groups complained about Edelman's scholarly writings concerning the possibility that there is a Constitutional right to a guaranteed minimum income, Clinton dropped the nomination altogether.

"Even when Hatch said Edelman was OK--which meant there would be no serious Senate opposition--Clinton still wouldn't fight for a liberal nominee," says Hentoff. "And Edelman was Clinton's friend. You can just imagine how unlikely it is that Clinton would nominate a great judge who is totally qualified but just happens to have written some liberal opinions."

This is not to suggest that Republicans in the Senate are anything less than partisan. During the first six months of 1996, GOP Senators slowed the approval process to a virtual standstill, allowing only three Clinton nominees to assume judgeships.

The Republican gamesmanship has created appointment gridlock. More than sixty federal judgeships--roughly 8 percent of all such positions--are currently vacant. Twenty judgeships have been vacant for more than eighteen months, qualifying them as "judicial emergencies" under the standards established by the Judicial Conference of the United States, and six positions have been vacant since before Clinton was elected.

Yet, unlike Reagan and Bush, who made campaign issues of Democratic delays in approving court nominees, Clinton has been quiet. "The Republicans are just a little better at the game--judging by the results," says Gerhardt.

Even if Clinton were to push for a speed-up in the approval process, no one expects that he would engage in the sort of pitched battles with his Senate opposition that America witnessed when Reagan and Bush fought for their nominees.

While some Clinton backers suggest that the President might adopt a different approach in a second term, Judge Reinhardt is doubtful. He thinks the Administration has absolutely committed itself to avoiding liberal appointees. Last year, Reinhardt wrote to the assistant attorney general who advises President Clinton on judicial picks, and asked, "Do you stand for anything?"

"I got a totally phony statement that said the Administration was only interested in merit. What a foolish, hypocritical response!" recalls Reinhardt, his voice filling with disdain. "Everybody's interested in merit--Justices Scalia and Rehnquist are extremely able people. If the Clinton Administration is only interested in merit, why don't they appoint more Scalias and Rehnquists?"

Reinhardt says, "There are liberals who are highly qualified, there are reactionaries, there are conservatives, there are moderates. There are people who are highly qualified in every philosophy, so to say `we're not interested in philosophy, we're only interested in qualifications' is just an untruth. But that's the official party line of the Clinton Administration, and it's most hypocritical."

The Clinton Administration's merit argument begins to crumble when the backgrounds of the President's nominees are revealed. In fact, the President has--to a greater extent even than Ronald Reagan--limited his choices to the elite circle of lawyers whose experience lies in the lucrative field of defending corporate interests.

Of Clinton's nominees so far, 34 percent have been millionaires. By contrast, 24 percent of Reagan's nominees were millionaires, and only 4 percent of Carter's nominees were members of the Million Dollar Club.

Not surprisingly, Clinton has avoided potential nominees with a record of defending the poorest Americans. Only two of the President's nominees in 1995 had any experience serving as public defenders--and their combined tenure added up to a total of six years. By contrast, twenty-one of the President's appointees that year had worked as prosecutors.

And what of Clinton's much-vaunted commitment to make the courts reflect America?

In the first three years of his Administration, 68 percent of the President's judicial nominees have been white, and 71 percent have been male. That is a better record than his predecessors, but even this bright spot on Clinton's record has recently fallen under a shadow.

After Republicans took control of the Senate in January 1995, there was a sharp drop in the number of minority nominees. In 1994, 25 percent of the President's appointments were African-American; in 1995, that figure dropped to 9 percent. Over the same period, Hispanic representation among Clinton's nominees dropped from 10 percent to 4 percent.

"While the overall increase in the diversity of the federal bench under President Clinton is important, the sharp decrease in that commitment in 1995 undercuts this achievement," according to the latest annual report from the Judicial Selection Project of the Alliance for Justice.

Nor, for all the talk of the Administration's openness to sexual minorities, has Clinton made any effort to appoint openly gay or lesbian jurists to the federal courts.

Despite this record, Clinton continues to benefit from the argument that he must be reelected to "save" the courts from Republican influence.

Conscious of the dangers inherent in the election of an anti-abortion President and a Republican Senate, many pro-choice activists are arguing that Clinton must be reelected, and there is no question that the President has a better record on the abortion issue than his Republican challenger.

But with a pro-choice majority on the high court, and a Senate where moderate Republicans and Democrats could combine to block a pro-life nominee--as happened with the nomination of Robert Bork--the argument that electing a President who would nominate pro-choice judges no matter what else he does lacks the force it had in the 1980s.

In a recent interview, David Mixner, the veteran gay-rights activist who has bitterly condemned the President for joining rightwingers in opposing same-sex marriage, said he would still vote for Clinton in November.

His rationale: "We have to be concerned about the courts. Clinton will appoint better judges."

Judge Stephen Reinhardt, who waited a dozen years for a Democratic President to be elected and to begin correcting the imbalance created by years of conservative Reagan and Bush appointments, cannot cloak his frustration.

"The Reagan-Bush effort to change the philosophy of the judiciary and the judicial system has won by default. Clinton has allowed the basic objectives of the Reagan-Bush efforts with respect to the courts to be accomplished," he says. "Those who used to be able to look to the courts as their saviors certainly cannot do that anymore. That's not where their best hope lies these days. The Warren-Brennan-Marshall-Blackmun era is over, at least until there is a different President who seems to consider the courts important."