Fight behind the fight: US judges

Ashcroft's efforts to push judiciary to the right help explain furor over his nomination.

Over the past 20 years, the two big parties that govern America have fought increasingly pitched battles over what used to be a relatively nonpartisan part of the government: federal judgeships.

Simple competence and bar association approval used to be enough to win Senate confirmation. Now candidates for the federal bench are at times subjected to the sort of scrutiny of their ideological beliefs and political record that used to be reserved for Supreme Court nominees.

As a senator, John Ashcroft excelled at this new political martial art. During his years in office, his influence and actions made the federal judiciary more conservative than it otherwise would have been.

In doing so, he angered many Democrats and liberal interest groups - and that spark has now flared into fierce opposition to his nomination as President-elect George W. Bush's attorney general.

"His nomination raises the issue of ... his long record of attacking good candidates for public office, well-qualified candidates for federal judgeships, not based on the merits, but to achieve his own personal ambitions," says Nan Aron, president of the Alliance for Justice, a liberal group that studies the makeup of the federal bench.

The current round of warfare over the federal bench might be dated back to 1980. The Reagan administration, eager to reshape the law by reshaping the nature of the federal bench, carefully chose court candidates who had conservative academic or political backgrounds.

This successful effort continued into the George Bush presidency. It was necessary, say conservatives, to rebalance an important level of the federal government that had long supported the left's agenda.

"That's where they win. Conservatives simply want the courts to stay out of the way," says Tom Jipping, director of the Free Congress Foundation's Center for Law and Democracy.

The Clinton administration, by contrast, was not as organized when it came to judge recruitment. It was only in the past 12 months that the number of Clinton appointees to the federal bench surpassed the number of Reagan-Bush appointees.

According to Alliance for Justice figures, when Clinton first took office Reagan-Bush judges made up two-thirds of the federal judiciary. Now they constitute 42 percent of the total, and Clinton nominees 43 percent.

Nor were Clinton judges as partisan as Reagan-Bush counterparts, say some analysts.

Claims of liberal activism for Clinton judges are greatly exaggerated, says Robert Carp, a political scientist at the University of Houston who has studied Clinton appointees.

"They're moderates," Mr. Carp says. "Somewhat more liberal than Reagan and Bush appointees, but more conservative than LBJ and Carter."

Clinton judges are more diverse in terms of their race and gender, says Carp. And he claims that taken as a whole they constitute a quality group.

"Clinton's judges tend to be right at the top of the American Bar Association ratings," he says. "In my mind the best sets of judges in the 20th century are [those of] Eisenhower and Clinton."

This relative moderation may reflect the fact that many Clinton nominees came from top law firms, and thus tend to be part of the existing establishment. But it may also stem from something else, says Carp: the increased scrutiny that was placed on them in the Senate.

Then-Senator Ashcroft, along with several conservative allies, realized they had it within their power to slow Democratic judgeship nominations, and thus protect gains made during the 1980s.

Competence was not the issue, as Ashcroft said when discussing the 1996 nomination of Los Angeles corporate attorney Margaret Morrow to a district court judgeship. Ideology was.

"The only question is: Does she have the right view of the Constitution?" said Ashcroft.

After a two-year delay, Morrow was finally confirmed by the Senate in 1998. More controversial was Ashcroft's role in killing the 1997 Disctrict Court nomination of Ronnie White, a Supreme Court justice from Ashcroft's own state of Missouri.

On the Senate floor, Ashcroft said White would push the law in a "pro-criminal direction" - a charge White's defenders decried as baseless. White was rejected by the Senate in a 54-45 party line vote on October 15, 1999.

Many of Ashcroft's opponents are now, in essence, trying to do to him what they claim he did to others - block his nomination due to disagreements over ideology, not competence.

Whether they will be successful remains to be seen. But even if Ashcroft is confirmed as Attorney General, it may be unlikely that the administration of George W. Bush will follow in Reagan's footsteps and push for more committed ideological conservatives on the federal bench.

In Texas, Governor Bush appointed many women and minorities who were only nominally Republican to judgeships, says Carp.

With the Senate split 50-50, some sort of compromise seems likely. "Either he'll have to appoint moderates, or work out a deal - so many conservative appointments in exchange for so many moderates and liberals," says Carp.

(c) Copyright 2001. The Christian Science Publishing Society

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