As Goes White House, So Go Federal Judges

Clinton win could stall conservative trend

The "judicial revolution" led by President Reagan in 1981 swept through the nation's federal courts, fundamentally changing them by a systematic appointment of conservative judges. By the time it was over in 1992, the GOP had appointed 550 of the 837 federal judges - using a "litmus test" that included tough views on crime and opposition to abortion and racial preferences.

Yet today, that GOP revolution is at a crossroads. Depending on who wins the White House and Senate next Tuesday, the conservative legacy in the courts could be significantly strengthened - or diluted.

Due to vacancies and attrition, the next president may appoint between 200 and 300 judges - about a third of the federal bench.

A Bob Dole victory could ensure that by the 21st century, 80 percent of all federal judges are conservatives - a political dominance not seen since midcentury when the Democrats under Franklin Roosevelt and Harry Truman controlled the bench.

If President Clinton wins, Democrats over the next four years will likely appoint about half of the federal bench, effectively ending the Republican revolution and changing the collective character of the courts from conservative to moderate. Over the past four years, Mr. Clinton has appointed 204 federal judges, about a quarter of the total.

"It's going to be dramatic either way," says Nan Aron, director of the Alliance for Justice, a public policy think tank in Washington. "The next president is going to have an opportunity to significantly affect the direction of the courts - especially the court of appeals, the most influential of the lower courts."

While the US Supreme Court attracts the most attention - and usually gets the main headlines - the brunt of the work of the federal court caseload takes place in the nation's 94 district courts and 13 circuit courts of appeal. The appeals court, the last stop on the way to the Supreme Court, tries thousands of cases a year - with less than about 1 percent ever getting reviewed by the Supreme Court, whose docket has been shrinking of late.

"The federal courts are the backbone of the judiciary," comments David O'Brien of the University of Virginia. "It's where the real day-to-day action is found."

Moreover, the federal courts, and the fight to control them, are also a major battleground in the ongoing American "culture wars."

The conservative wing of the Republican Party, religious groups in particular, have pushed to hold sway over judicial appointments - preferring ideological conservatives like Supreme Court Justices Clarence Thomas and Antonin Scalia, who would support states' rights, a traditional family values agenda, school vouchers, and school prayer. Last year the conservative Heritage Foundation published criteria and guidelines for GOP federal court nominees, suggesting they be "in the mold of [Justice] Thomas rather than [Justice] Souter" - and have a "proven" track record of "seeking the original meaning of the Constitution."

"We want restrained judges, not aggressive liberals," says Michael Pendleton of the conservative Free Congress Foundation. "It is a question of who will run the country, the people or the judges?"

The Clinton philosophy on federal judicial appointments is a somewhat more complicated mix. The administration has stressed both diversity of candidates and moderate judicial views as part of its goal. The Clinton White House, for example, appointed in its first year more blacks than the Reagan White House appointed in eight years; three of 10 Clinton judges are women.

Yet Democrats are split on the Clinton record, with the liberal wing of the party despairing over an increasingly conservative batch of judicial nominees. In 1995, for example, only two of the 23 White House nominees had experience as public defenders, considered more sympathetic to poor and minority concerns; 21 of the nominees had been prosecutors, considered tougher on crime and more conservative.

"If elected, Dole would make a much further-from-center move with his judicial appointments than Clinton," says Roy Schotland, law professor at Georgetown University. "Clinton's appointments are as much attacked from the left as the right - and that is how he wants it."

Moreover, the character of the federal courts will be strongly influenced by whether Republicans or Democrats control the Senate after the dust settles on Nov. 5. The Senate Judiciary Committee confirms White House judicial nominees. In the past year, the committee has been increasingly subject to political and ideological pressure from the Republican right - virtually shutting down the judicial confirmation process. In what scholars say is a first, the Senate confirmed no Clinton court of appeals nominees in the past year, and only 20 district judges for the entire year.

"That's unprecedented, even for an election year," says Sheldon Goldman of the University of Massachusetts at Amherst, an expert on the judiciary. "I expect we will see a very different picture in the new Congress, once the election is over."

Much depends on the question of vacancies, and a judge's willingness or desire to step down. Currently, 64 vacancies exist on the federal bench, according to the Administrative Office of the US Courts.

In addition, 17 judges recently said they will either step down or, more likely, take "senior status." This status, begun in 1980, is a key factor in the judicial appointment equation. Federal judges may claim it after 15 years if they are age 65 - a kind of semi-retirement allowing them to hear only the cases they are interested in, while still retaining full pay.

In the next four years, statistics show that between 200 and 250 federal judges will be eligible for senior status.

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