Judges Need No ‘Litmus Test,’ 9th Circuit Told

Times Staff Writer

A Justice Department official told 300 federal judges and lawyers here that the Reagan Administration does not need a “political litmus test” to find new judges with acceptable political philosophies.

Deputy Solicitor Gen. Charles Fried, responding to questions at the U.S. 9th Circuit judicial conference last week, said it would be “crude” to screen judicial candidates on their views about abortion and the death penalty.

“I would have a quarrel with that because it would be stupid,” Fried said at a news conference. “It would not give you the quality of judges you want.”

Fried’s comments followed expressions of concern by some judges attending the annual conference that the Justice Department may be screening some candidates for federal judgeships on a number of sensitive political issues.


The question was raised repeatedly at the conference, attended by judges and lawyers from nine Western states, although there has been no substantiation of the persistent speculation that the Justice Department has a “litmus test” for new judges.

‘Too Much Heat’

One attorney said privately that the Justice Department was asking last year how judicial candidates stood on the abortion and death penalty questions but that it has dropped the practice “because it was getting too much heat.”

Another attorney familiar with the selection process said no new judges in the 9th Circuit have been subjected to such questioning. Both requested anonymity.


The question of a political “litmus test” for judges was also addressed by Supreme Court Justices William H. Rehnquist and Sandra Day O’Connor, who appeared together Friday for a panel discussion on a range of legal issues.

Although both endorsed President Reagan’s right to pick judges with similar political views, they expressed discomfort with any selection process focused on specific issues.

“In my own situation I was very uncomfortable,” said O’Connor, who was questioned at length about her views on abortion during Senate hearings on her nomination. “My sympathy goes out to nominees who are pressed (on such questions).”

Rehnquist said the political leanings of new judges are obviously known before their appointment and agreed that strict screening of candidates on specific issues would be improper.


“One would hope it wouldn’t be reduced to a litmus question-and-answer test,” he said. “The country would not be well served by that.”

James R. Browning, chief judge of the U.S. 9th Circuit Court of Appeals, opened the conference with an optimistic report on the 9th Circuit’s progress in the last year in overcoming problems of both image and size. It is the largest in the nation.

“The 9th Circuit is no longer the court nobody knows,” he said. “This circuit and its appellate court have been the subject of considerable public attention. This will continue to be so, for we are unique in size among federal judicial institutions, and we are challenging the widely held supposition that size is incompatible with effectiveness.”

The 9th Circuit has reduced its median time in disposing of cases almost by half to about 11 months, and Browning said a focus in the coming year will be to cut it even more to improve the circuit’s standing with the nation’s other appellate courts.


He set a goal of 6 1/2 months for deciding cases, saying the 9th Circuit will begin collecting efficiency statistics on judges this year in an effort to help slower judges improve their output.

In the past, the only efficiency statistics on federal judges have been collected by the administrative Office of the U.S. Courts in Washington. Judges in the 9th Circuit have complained that there is too much of a time lag in compiling the statistics and that they are misleading.

‘A Permanent Change’

“I think we can make a permanent change in the attitude of both district and circuit judges about working to improve our speed,” Browning said. “Collecting our own statistics and discussing them among ourselves will help.”


Browning said there has been no decision yet on regular public release of the statistics on individual judges, a controversial topic among judges and lawyers. But he said he generally favors such a policy.

“We are a public institution; it is incumbent upon us to communicate with the public about our activities,” Browning said in his opening remarks.

“Public scrutiny is not always comfortable,” he said. “But if we make sure that the facts are widely available, public exposure will increase public understanding of our efforts and will strengthen, not weaken, our institution.”

Among delegates, another major theme of the conference was the conflict of fair trial and free press issues raised by last year’s daily media briefings in Los Angeles by defense lawyers in the John Z. DeLorean cocaine case, which ended in DeLorean’s acquittal after a long jury trial.


Some judges and lawyers critical of attorney Howard Weitzeman’s daily courthouse press briefings urged restraining orders on lawyers or the sequestering of juries to prevent similar conduct in other high-profile cases. Others, however, said that judges should not restrict public comment in any way.