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How far can the President get in reshaping the law? Congress' leadership an open question in judge appointments

By Curtis J. SitomerStaff writer of The Christian Science Monitor / June 30, 1986



Boston

Heated controversies over the prospective appointment of one federal judge and the possible removal of another have broad implications for the White House and its ability to set the tone of America's courts. They also raise questions as to whether Congress will apply a rubber stamp to the President's judical appointments, or if it will take a strong lead of its own.

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Both cases will be tackled in earnest after lawmakers return from a long Fourth of July recess.

At that time, Congress will likely also start hearings on President Reagan's choices for the US Supreme Court -- the nomination of federal judge Antonin Scalia to Associate Justice and the elevation of Associate Justice William Rehnquist to Chief Justice. Mr. Rehnquist would replace the retiring Warren E. Burger.

Few predict that either of these appointments will be seriously challenged -- although many liberals are concerned that both Mr. Scalia and Mr. Rehnquist will further tilt the high court to the right.

Reshaping the law according to ``President Reagan's conservative vision'' is a major goal of the administration, says US Attorney General Edwin Meese III, in a documentary on the Justice Department entitled ``Justice For All,'' which will air on most PBS stations July 2. Choosing federal judges with the right ideology is a vital factor in accomplishing this change, he says.

The nomination by the President of arch-conservative Daniel A. Manion of Indiana as a federal appeals court judge, many believe, will be a litmus test for Mr. Reagan. It may also indicate how much clout a Senate of a slightly different persuasion from the President will have in resisting such an appointment.

Harvard law professor Laurence Tribe says it is the Senate's responsibility, in confirming presidential nominees to the bench, to take a ``strong lead'' in assessing qualifications by predicting ability to administer law fairly and justly. However, Professor Tribe doesn't believe that lawmakers should apply a flat ideological test to such appointments. Tribe and others would like Congress to take a stronger role in reviewing appointments.

After bitter debate, Manion's appointment was tentatively approved by the Senate last week, but by a narrow 48-46 vote. However, parliamentary manuevering will bring the matter back to the floor in July.

Predictably, the Indianan's supporters say Democrats and other liberals are not questioning his professional credentials but his conservative ideology. And they insist this is not a proper basis for rejecting him.

President Reagan, who has used a radio address to push for Manion's confirmation and also written a letter to the lawmakers urging it, charges that ``partisanship in the Senate has pushed fair play by the boards.''

(Manion's father was a founder of the right-wing John Birch Society and the younger Manion has also leaned heavily in this direction.)

However, critics -- just as predictably -- insist that their opposition is based not on ideology but on the nominee's lack of qualifications.

Sen. Edward M. Kennedy (D) of Massachusetts, says that Manion ``has almost no experience in the federal courts.'' And Senator Kennedy insists that Manion's ``briefs in state courts border on the illiterate.''

The last judicial nominee whom the Senate refused to confirm was G. Harrold Carswell, who was nominated for the US Supreme Court by President Nixon in l970.

While the Senate grapples with Manion, the House of Representatives moves toward what could be a historic impeachment proceeding of a sitting federal district judge.

Harry E. Claiborne of Nevada has been convicted of tax evasion for failing to report $106,000 in income on his l979 and l980 returns. He is presently serving a two-year prison term. Proclaiming his innocence and insisting that there is a conspiracy against him, he has refused to resign his judicial post and relinquish a $78,700 salary.

The House Judiciary Committee, under the chairmanship of Peter W. Rodino, Jr. (D) of New Jersey, late last week adopted four articles of impeachment against Claiborne. The matter goes to the full House in July where a vote will be taken on impeachment. If impeached, the Nevadan will face a trial in the Senate to determine whether he should remain in office.

The Senate hasn't held such a proceeding in 50 years. In l936, it convicted Federal District Judge Halsted L. Ritter and removed him from office.