Will War Over Judges Become Permanent?
BOSTON — Margaret Morrow has been waiting since 1996 for the United States Senate to decide if she will become a federal judge. The nomination of the Los Angeles corporate lawyer has been stalled by conservatives on grounds that she's an "activist liberal."
Ms. Morrow is not alone. White House nominees to the federal bench have become an ongoing flash point for conservative groups, who have succeeded in using judicial appointments to highlight differences between Republicans and Democrats - and even to define the culture war over values.
But in a sign that the heated battle over judges may be abating, the Senate will finally vote on Morrow's nomination at the outset of the next congressional session. Still, a bigger question remains as the Senate resumes its work late next month: Will judicial appointments follow a more traditional pattern of review, or will federal judgeships for the first time become a permanent battleground between the White House and the GOP?
"There have always been attacks on the judiciary by both sides, but never a permanent battle," says Johnny Killian, a Congressional Research Service legal analyst. "I don't think [Senate Judiciary Committee chairman Orrin] Hatch wants to hold the judiciary hostage; he believes in hearings and votes. But he has to deal with the far right of his party."
Indeed, this fall the GOP-controlled Senate approved 25 judges to the federal bench. But before September, Republicans had quietly throttled most judicial appointments President Clinton sought this year, saying yes to nine of some 80 White House candidates. Last year, the Senate approved 17 federal judgeships, the fewest in 40 years. It made no appointments to US circuit courts of appeal, the highest legal benches short of the US Supreme Court.
Conservatives see their task as continuing the fight for judicial balance begun during the Reagan and Bush administrations. They are proud of reversing what they call a judicial-activist philosophy on the federal bench during the 1960s and '70s, which created new rights for minorities, ignored state legislatures, and looked leniently at prisoners and criminals. These advocates of judicial restraint want to protect "balance" on the bench, especially in the influential US circuit courts of appeals.
In fact, Mr. Clinton has nominated roughly one-third of sitting judges on the 845-member federal bench since 1992. In the past year, vacancies hovered at about 100, and it is possible by the end of his term that Clinton will have nominated almost half of all federal judges.
A break with tradition
Typically, federal bench confirmations slow during a presidential election year. But Senator Hatch (R) of Utah and Senate majority leader Trent Lott (R) of Mississippi blocked appointments through last summer. Other GOP lawmakers talked of impeaching sitting judges whose rulings advocate liberal causes or try to "effect political or social change" - one charge against Morrow, a former president of the State Bar of California.
"We were getting judges scrutinized as if they were Supreme Court candidates, in an effort to create an issue," says a source close to the White House. "But ... the fact that these nominees are decent people, not wild-eyed radicals, has taken some of the steam out of the issue."
That is not the view, however, of conservatives like Tom Jipping of the Judicial Selection Monitoring Project. The group lobbied against Morrow and other nominees, is putting out voter guides for members of the Christian Coalition and the National Rifle Association, and orchestrated a pledge signed by 10 US senators to fight activist judges. "We are going to continue to ratchet up this issue," says Mr. Jipping.
But the White House, which succeeded in naming Asian-American Bill Lann Lee as acting head of the Justice Department's civil rights division, believes that Hill Republicans are wary of appearing too hard-line on minority appointments, say sources close to the administration. It also suspects that Senators Hatch and Lott are concerned about alienating GOP figures who support Morrow, such as California Gov. Pete Wilson.
Legal experts say that choosing judges has always been a political exercise, but that protecting judicial independence has been paramount. "The process can only work by good faith, and that is what has kept it going so far," says Sheldon Goldman, author of a new book, "Picking Federal Judges." "Too much political tampering with the process is dangerous to good faith and to an independent judiciary. That is, sadly, what I see now."
But others see a thriving judicial independence. Last week, for example, US District Court Judge Richard Paez, whose nomination to a US appeals court has been on hold for more than a year, struck down an ordinance that banned "aggressive begging" on the streets - a decision not likely to endear him to Senate conservatives who must approve his nomination. "He voted his conscience, which is what I expect a judge to do," says one judicial expert.