Government's Judicial Watchdog

Abner Mikva presides when political branches duel or when citizens haul the US bureaucracy into court

FOR a man with an open face, a soft voice, and a genial manner, Abner Mikva sure can make people mad.

In 1979, when President Carter nominated Mr. Mikva for a seat on the United States Court of Appeals in Washington, the National Rifle Association spent six months and $1 million trying unsuccessfully to defeat his Senate confirmation. (As a five-term Democratic member of Congress from Chicago, Mikva had pushed bills to control handguns.)

Now Judge Mikva, who became chief judge of the prestigious court in 1991, has the White House and the Pentagon up in arms. He wrote the opinion for a three-judge panel that ruled Nov. 16 that the military's ban on homosexuals is unconstitutional.

Although the appeals court was not ruling directly on the Clinton administration's new ``don't ask, don't tell, don't pursue'' policy, the decision may have legal implications for that policy. It almost certainly will be appealed to the Supreme Court.

The fact that his work and that of his fellow jurists is likely to be reviewed by the high court keeps him on his toes, Mikva says. Sitting in his chambers at the federal courthouse in Washington, he describes his work on a case this term involving the North American Free Trade Agreement. A lower federal court had ruled that NAFTA could not proceed until the government filed an environmental-impact statement - a lengthy process that could have stalled the treaty for years.

Of his opinion allowing NAFTA to go forward, Mikva says, ``I spent a lot of time on it this summer and fall, not only because of its political significance, but also I knew this was the kind of case that invariably had to go to the Supreme Court. In writing and rewriting it, going over every word, dotting every `i' and crossing every `t,' I was not unaware that my paper was going to be graded by a higher authority.''

(Congressional passage of NAFTA may have cut off any Supreme Court appeal, however.)

Mikva presides over an intermediate court that is different in two key respects from the 11 other circuit courts that review appeals from federal trial courts. First, nearly half of its cases involve challenges to actions by government agencies, and in almost 80 percent of its cases, the government is a party (90 percent, including criminal cases). It is the most authoritative court in the land on administrative law, which governs regulatory procedures.

Second, the District of Columbia has no US senators to weigh in on judicial appointments. (Presidents traditionally accord senators considerable influence in choosing judges for the federal courts in their states.) ``It's purely the president's call,'' Mikva says.

Together, these two factors make the D.C. Court of Appeals a national, not a regional court. ``Presidents look throughout the country for their nominees'' to this court, the chief judge says. Current members include a one-time US senator, an ambassador to the former Yugoslavia, law professors at Harvard and the University of Michigan, and two US district-court judges from the South.

A sign of the court's national prominence is the number of judges who have gone on to the Supreme Court. High-court justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg came from the D.C. Court of Appeals.

``We're the triple-A team for the Supremes,'' Mikva says with a laugh. This ``reflects the fact that presidents look for people of national dimension to put on this court.''

``The quality of the judges on this court has traditionally been very high,'' says Robert Gordon, a professor at Stanford Law School who studies the court's work. ``Presidents need to appoint people who are up to the job. By and large, these have been intellectually formidable judges.''

These ``people of national dimension'' hardly see eye to eye, however. Of the 10 judges now on the 12-member court (the Thomas and Ginsburg vacancies remain to be filled), three are liberals appointed by President Carter and seven are Reagan-Bush conservatives. The court is known for ideological clashes. With the expected addition of two moderate-to-liberal judges by President Clinton, the fireworks could intensify.

The ruling on gays in the military last month was made unanimously by a panel composed of the three Carter appointees - Mikva and Judges Patricia Wald and Harry Edwards. Did Mikva pack the panel?

``I know that some people will look at the case and the panel and add 2 plus 2. But they'll get 5,'' he says. Panels are formed and cases assigned by computer, he explains. ``No judge has any influence on the members of the panels or the cases they hear.''

The decision ``will certainly divide the court,'' says Robert Bork, a conservative who served on the D.C. Court of Appeals from 1982 to 1988. Asked about contentiousness on the court, Mr. Bork, now a scholar at the American Enterprise Institute in Washington, acknowledges that ``there was some bad feeling'' based on philosophical disputes during his years on the bench.

``But I'm told that [the history of strong differences] goes back a long time,'' Bork says, ``at least to the days when Warren Burger and David Bazelon were on the court.'' Mr. Burger, a conservative, served on the court from 1956 until he was appointed chief justice of the Supreme Court in 1969. Judge Bazelon was a leading liberal on the D.C. court for three decades beginning in 1949.

The D.C. Court of Appeals has ``an active history of conflict over many years,'' agrees Prof. Thomas Sargentich of American University College of Law in Washington. But he says that's to be expected of a court that ``has a major role in interpreting cutting-edge statutes on government regulation and procedures.'' The disputes usually are ``deeply intellectual,'' Professor Sargentich emphasizes, not merely political or personal.

Situated in the nation's capital, Mikva's court often gets the cases when, as he says, ``the two political branches of government fuss with each other.'' The Watergate-tapes case and the Iran-contra cases landed there.

The meat and potatoes of the court's docket, however, are administrative-law cases - claims by a citizen or company that a government agency acted improperly in adopting a rule, taking regulatory action, or granting or denying a license.

The Administrative Procedures Act prohibits agencies from acting in an ``arbitrary or capricious'' manner.

Even to many lawyers, the issues seem arcane. Yet Mikva stresses their importance. ``It's the rare individual who isn't affected in some way by the administrative process and rules,'' he says. And after years of seeing how regulators sometimes behave, this longtime liberal - an avowed believer in government - says he knows ``there are such things as pointy-headed bureaucrats who can be insensitive to the common people.''