Wrangling Over Judges

THE Anita Hill-Clarence Thomas debacle has prompted much discussion about how to avert a similar confrontation in the future. This raises questions about why the wrenching spectacle happened in the first place.The roots of the event go deeper than the current era of divided government and beyond the rejection of Robert Bork's Supreme Court nomination in 1987. They go back more than a decade, at least to the administration of Jimmy Carter, when the judicial nominating process assumed unprecedented visibility, even in the absence of a Supreme Court appointment. The reasons were varied: the pervasive role the federal judiciary had come to play in American life as minorities, in particular, turned to the courts to vindicate rights; criticism from conservatives, who considered federal judges to be "activist" quasi-legislators who were usurping the role of elected lawmakers; and raised expectations, based in large part on Mr. Carter's campaign promise to bring diversity to the federal bench. For nearly two centuries, the judiciary had been, with a handful of except ions, the preserve of white men, often a way for presidents and senators to reward friends and supporters who were lawyers. Two years into his term, Carter was given 152 judicial positions to fill - the largest influx of new judgeships ever. At the time, the Senate was in Democratic hands, but that did not prevent controversy and delay over several of his nominees to the lower federal courts. Criticism came from both ends of the political spectrum. In 1979 alone, four Carter nominees drew significant opposition and came out of the Judiciary Committee with split votes. Former Illinois congressman Abner Mikva was vigorously opposed by the National Rifle Association for his support of gun control laws, and 31 senators voted against his appointment to the federal court of appeals in the District of Columbia. His colleague, Patricia Wald, a former Justice Department official, was charged with being "anti-family" by conservative Republicans and had to we ather that storm before being confirmed. Black organizations opposed another woman, Cornelia Kennedy, for a seat on the United States Court of Appeals for the Sixth Circuit. They said she had been insensitive to the rights of minorities as a federal trial judge in Michigan. There was also opposition to Bailey Brown, a lawyer from Memphis, who had refused to resign from a private club that had no black members. He subsequently agreed to suspend his membership in the organization. By the time Ronald Reagan became president, federal trial and appellate court nominations were no longer considered in the relative obscurity that had once been the norm. But where Carter had been committed to a demographically diverse judiciary, Reagan was committed to ideology. In its 1980 platform his own party had pointedly called for the appointment of judges committed to overturning Roe v. Wade, the Supreme Court decision that made abortion legal nationwide. Reagan made no bones about looking for individuals who would interpret the law as narrowly as possible, and if few women or minorities fit the bill, well, so be it. The Senate was in Republican hands for the first six years of Reagan's presidency, but "unified" government was no bar to controversy. Between 1984 and the summer of 1986, there were disputes over five judicial nominees, and one of those, Jefferson Sessions III of Alabama, was rejected by the Judiciary Committee. A majority found him to be in sensitive on matters of racial justice. Concerns about racial issues as well as qualifications also figured in the controversies over the other nominees, particularly in the case of Daniel Manion, who was just barely confirmed. These were all before the fight over Reagan's nomination of William H. Rehnquist in the summer of 1986 to succeed Warren Burger as chief justice of the US. Rehnquist was confirmed, but with the most negative votes of any justice in this century prior to the Thomas confirmation. By the time Robert Bork was nominated for the Supreme Court in 1987, the Senate had shifted back to the Democrats. Furthermore, the Judiciary Committee and the Senate by now had a 10-year history of wrangling over judicial nominees, and the confirmation process had become a forum for debating issues of fundamental American values. We can expect this kind of charged debate to continue in nomination proceedings even with a "unified" government as long as the federal courts remain so involved in matters that touch on personal behavior and broader social mores. That they are so involved says as much about the country's lack of confidence in its elected bodies as it does about the makeup of the judiciary. After all, judges don't go out and seek cases. They act only on what is brought before them by aggrieved individuals. Reagan and President Bush may ultimately help shift the courts away from adjudicating individual rights and toward dockets filled with issues of property rights. For if the judges they have put on the bench are perceived by many as hostile to civil rights and civil liberties, then fewer and fewer federal lawsuits of the type that brought the judiciary into such prominence in the first place will be filed. Legislatures will become the principal battleground for these difficult matters, as conservatives sa y they want.