Clinton remaking Reagan bench
President's wide-ranging appointments roughly double number ofminorities and women in the federal judiciary.
BOSTON — When Bill Clinton moves out of the White House in January 2001, he will leave behind a significant legal legacy - completely unrelated to the Monica Lewinsky scandal.
Through his power to make lifetime appointments, Mr. Clinton will have contributed to the diversification of the federal bench, naming more women and minorities as federal judges than any other president in American history.
At the same time, he is being criticized within his own party for bypassing many liberal judicial candidates in favor of moderates. It is a strategy that has left many Democrats disappointed that Clinton judges, as a whole, aren't liberal enough.
"The bottom line is that the Clinton judges are ideologically moderate and were generally not picked for their ideological qualifications," says Robert Carp, a political science professor at the University of Houston, who has studied judicial appointees dating back to the 1920s.
Clinton appointments since 1992 have doubled the number of women federal judges, increased the number of African-Americans on the bench by 56 percent, and boosted the number of Hispanic judges by 39 percent, according to statistics collected by Alliance for Justice, a liberal Washington-based group that monitors judicial appointments.
"This is unprecedented," says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst and author of "Picking Federal Judges." Clinton "has brought literally dozens and dozens of women and minorities to the federal bench."
Those numbers are expected to rise even further during Clinton's final two years in office. The big question is whether Senate Republicans - chastened by the impeachment trial - will permit Clinton any latitude in appointing his final 100 or so judges, or whether they will employ delay tactics, keeping a large number of judgeships vacant in the hopes a Republican wins the presidency in 2000.
The elevation of qualified minorities and women to judgeships traditionally held by white males provides a powerful message to society and helps fulfill fundamental democratic ideals, analysts say.
"By having new people, new ideas, diversity of views and people on the bench, you have a more vibrant and representative process - one in which litigants can look at the court and think, 'I can get a fair shake,' " says Mr. Goldman.
The Clinton appointments are critical for another reason, some legal analysts say. They are a counterbalance to the ongoing effect of the Reagan revolution. A key component of President Reagan's approach to judicial appointments in the 1980s involved an attempt to reshape the federal judiciary into a conservative bastion that would undercut the influence of liberal activists across the nation.
When Clinton was elected president in 1992, many Democrats urged him to appoint liberal federal judges to offset the entrenched conservative jurists.
But the president followed a different strategy. He made a deliberate effort to seek out and appoint qualified African-Americans, Hispanics, and women regardless of their ideology. In the process he bypassed many liberal stalwarts.
The Clinton strategy wasn't entirely voluntary. It was prompted in large part by the White House perception that liberal ideologues would probably not survive tough confirmation hearings in the GOP-led Senate Judiciary Committee.
So instead of turning to liberal academics and activists as judicial candidates, he sought instead women, minorities, and others with solid experience as state court judges or who held jobs at some of the nation's most prestigious law firms.
One example of this pragmatic appointment strategy is evident in the current controversy over Clinton's nomination of Barbara Durham, a conservative Republican, to the federal appeals court in Seattle. Liberal analysts are denouncing the move as a "Faustian bargain" between Clinton and Senate Republicans.
Indeed, the president's appointment strategy has drawn criticism from both liberals and conservatives. Liberals are unhappy because his candidates have tended to be more moderate than liberal. And conservatives are displeased because most of the Clinton picks for the federal bench do not subscribe to the conservative mantra of judicial restraint.
The conservatives view nearly all of the Clinton judges as judicial activists, defined as any judge willing to use his or her power to accomplish through expansive rulings what a judge believes is right or good, rather than strictly adhering to the letter, scope, and intent of the law.
Liberal legal analysts say the Constitution was written to respond to the necessities of the times, and that judges shouldn't hesitate to use it to safeguard liberty and justice when necessary.
By the end of his second term, it is likely that Clinton will have appointed almost 400 of the nation's 845 federal judges. That prospect frightens many conservatives, because it threatens to significantly water down the impact of the judicial restraint movement.
"Clinton's appointments will make sure that for the next quarter century - at least - there will be a large majority of activist judges throughout the judiciary," says Thomas Jipping of the Judicial Selection Monitoring Project at the Free Congress Research and Education Foundation in Washington.
On the left, Nan Aron, who heads Alliance for Justice, is just as concerned about Clinton appointments, but for a different reason. "I would say a major disappointment of this administration's appointments is its resistance to addressing the imbalance on the circuit courts [of appeal]," she says. "Most are still heavily dominated by Reagan and Bush appointees and are very ideological."
Ms. Aron adds, "Reagan and Bush sought to reshape the direction of the law by choosing very carefully circuit judges who had a conservative academic or activist background." In contrast, "this president has chosen the pathway of least resistance by choosing [judicial appointees] with very moderate backgrounds."
Analysts say appointments in 1999 and 2000 will be particularly important because, in most cases, Clinton will be replacing a Reagan or Bush appointee. In 1992 and 1993, most of Clinton's appointees replaced judges who had been appointed by President Carter. But this year he will likely have the best opportunity of his presidency to substantially erode the influence of the conservative judges.
If history offers any hint, Clinton will avoid confrontation with the Senate and continue to nominate moderate appointees who can be confirmed with a minimum of political bloodshed.
Clinton appointments combined with earlier appointments by Mr. Carter have resulted in majorities with a more liberal outlook in three circuit courts, the Second in New York, Sixth in Cincinnati, and Ninth in San Francisco.
Ten other circuit courts continue to have a majority of conservative judges appointed by Reagan and Bush. That could change. This different composition of judges on highly influential appeals courts will likely result in a growing number of conflicting decisions among the circuits, conflicts that can only be resolved by the US Supreme Court.
"The number of cases that the Supreme Court is going to be taking in the years ahead is going to go up," says Mr. Jipping. It will end a 10-year trend toward a reduced caseload at the high court, he says.