Path: bloom-picayune.mit.edu!snorkelwacker.mit.edu!americast.com!americast.com!americast-post
Newsgroups: americast.wpost
From: americast-post@AmeriCast.Com
Organization: American Cybercasting
Approved: americast-post@AmeriCast.com
Subject: Court Vacancies Await New President;Democrat Will Get Early Opportunity to
Date: Fri, 6 Nov 92 05:06:14 EST
Message-ID: <31.1992Nov6.050614@AmeriCast.com>

Court Vacancies Await New President;Democrat Will Get Early Op-
portunity to Leave Imprint on Judiciary<By Joan
Biskupic<Washington Post Staff Writer< President-elect Clinton
will immediately be able to name more than 100 federal judges
when he takes office, and he could have an enormous opportunity
to put a Democratic imprint on a judiciary now dominated by
Reagan-Bush appointees.  He comes to office presented with more
than three times the number of court vacancies that faced Ronald
Reagan and George Bush when they took office.  Based on average
numbers of judicial resignations, Clinton could end up naming
between one-fourth and one-third of all 846 life-tenured federal
judges.  Most attention has been on the Supreme Court, where
Clinton will almost surely become the first Democrat in 25 years
to appoint a justice, since Lyndon B.  Johnson named now-retired
Thurgood Marshall.

Justice Harry A. Blackmun, who will be 84 next Thursday, last
term raised the subject of his retirement, as has Byron R. White,
75, the court's most senior justice.

Clinton, a lawyer who is married to a lawyer and who has spent
time in legal circles since his days at Yale Law School, is like-
ly to have more direct contact with the nominations process than
his predecessors.

"When was the last time we had a lawyer as president who really
understood the court and understood the issues?" said Mark Giten-
stein, a former chief counsel of the Senate Judiciary Committee
who is now in private practice and worked on Clinton's campaign.
During the past 30 years, two other lawyers, Richard M. Nixon and
Gerald R.  Ford, became president. But Clinton would be the first
president in this century to have served as a state attorney gen-
eral, and he also taught constitutional and antitrust law at the
University of Arkansas Law School.  "I can't say that he would
put the courts up there with the economy or health care," Giten-
stein added, "but I think he will be personally involved in the
selection and where the court will go."

Overall, the Clinton presidency is likely to mean more women and
minorities on all courts, a greater emphasis on credentials and a
deliberate reversal of the present conservative dominance.
(Judges named by Reagan and Bush make up about 65 percent of the
lower courts.  They also appointed five of the nine current
Supreme Court justices and promoted William H. Rehnquist to chief
justice.)

Clinton, who increased women and minority representation on Ar-
kansas courts, complained in campaign speeches that there was a
lack of diversity among judges appointed by Bush and that they
failed to meet "high standards of excellence."

Clinton also has said he would select only people who "believe in
the Bill of Rights including the constitutional right to privacy
and the right to choose" abortion.

Yet, it is not clear how the broad themes from campaign speeches
and evident in Arkansas appointments will translate into indivi-
dual nominations.

Another uncertainty, given the huge stable of potential Democrat-
ic appointees, is with which factions of the Democratic Party
Clinton's choices will be aligned.  Speculation about Supreme
Court nominees, for instance, has shown how certain choices would
serve certain constituencies. Among those mentioned are Prof.
Laurence H. Tribe of Harvard University, a high-profile, widely
experienced liberal scholar; Richard S. Arnold of the 8th U.S.
Circuit Court of Appeals, a credentialed jurist who happens to be
a longtime Clinton friend in Little Rock; and Amalya Lyle Kearse,
who is on the 2nd U.S. Circuit Court of Appeals in New York and
whose appointment would make a statement about Clinton's commit-
ment to women and minorities.

But those three are among many who have been mentioned for the
first vacancy.

The range of Clinton's alliances and interests makes it difficult
to predict how his judicial appointments would philosophically
alter the courts. Clinton himself has said he would put "excel-
lence" before "ideology." The only name he has mentioned in con-
nection with high court appointments is New York Gov. Mario M.
Cuomo (D), although Clinton aides have said the link was intended
to illustrate the level of competence he would seek.

"Bill Clinton was caricatured as a liberal during the campaign,"
said Oklahoma Gov. David Walters (D), one of Clinton's national
campaign co-chairmen, "but he's a pretty conservative guy. He
founded the (moderate) Democratic Leadership Council. He carried
out the death penalty in Arkansas."

One indicator of Clinton's approach to the Supreme Court emerges
in his 1987 testimony before the Senate Judiciary Committee in
opposition to the Supreme Court nomination of Robert H. Bork.
Bork had been Clinton's constitutional law professor at Yale.

In a written statement, Clinton criticized Bork's restrictive
view of what the Supreme Court could do to protect individual
rights. He predicted Bork would set back progress on civil rights
in the South by seeking to overturn precedents of the liberal era
under Chief Justice Earl Warren.

"Like most Southerners, and most Americans, I support basic trad-
itional values," Clinton said. "Like most Southerners and most
Americans, I don't always agree with the Supreme Court and lower
federal courts. Finally, I know the Supreme Court has to reassess
its positions from time to time in order to fulfill its historic
mission and permit our country to endure for another 200 years.
That is why Supreme Court appointments are so important. They
keep our Constitution and its guarantees of liberty alive." But
if the Supreme Court is where the attention is, lower courts are
where more of the action is. (More than 99 percent of all federal
cases are decided in the district courts and circuit courts of
appeals.)

As of Nov. 1, there were 16 vacancies on the appeals courts, 84
on the district courts and two on the Court of International
Trade. The Administrative Office of the U.S. Courts estimates
that five judges retire every month, or 60 annually.

Clinton can thank Bush for many of the current vacancies.

Bush failed to make nominations for 46 openings before the Senate
adjourned in early October. Some 53 other nominees had not been
acted on by the Senate, and are now effectively withdrawn.

The gears of Bush's nomination process were slow from the start.
In his first year in office, Bush put just 15 judges on the
bench, the fewest any president had named in a single year since
1963, leaving nearly 60 spots open.

In all, Bush named 194 judges to the appeals and district courts.
Reagan named 378 such judges and Carter, 262.

Justice Department spokesman Paul McNulty rejects criticism of
the efficiency of Bush's nomination process, noting that Bush had
to fill 85 new judgeships that were created in 1990.  Also, for
all of Bush's four-year term, unlike for Reagan and Carter, he
was contending with a Senate controlled by the opposition party.

"Rather than thanking Bush, Clinton can thank his fellow Demo-
crats on the Senate Judiciary Committee who left nominations
pending," McNulty said. "The metaphor that comes to mind is that
you're scolding a chef for not preparing enough food, when they
couldn't even eat what was served."

Like Bush, and Reagan before him, Clinton is likely to hear his
share of gripes over court nominations.  Clinton himself noted in
1987, before he got to the substance of his complaint about Bork:
"As a governor who makes appointments that may be second-guessed,
I understand well the hazards of criticizing an appointment based
on a predicition of how that person will perform later. Some of
those predictions about Supreme Court nominees have been wrong in
the past."<02:25 11-06C9999-----

Copyright 1992, The Washington Post.  This story is from the
Washington Post's Capitol Edition On-Line and is not to be ar-
chived or redistributed.

For more information, send-email to American Cybercasting Cor-
poration (usa@AmeriCast.COM)