Panel Backs Justice Dept. Nominees Despite Criticism

A Senate panel approved two key presidential nominations to the Justice Department on Thursday amid claims that the Reagan Administration is trying to “politicize” the federal bench and the office that represents the government before the Supreme Court.

By voice vote, the Senate Judiciary Committee endorsed the nominations of former Harvard law professor Charles Fried as solicitor general and Senate aide Stephen J. Markman as assistant attorney general for legal policy, the post that oversees the selection of federal judicial nominees. Both must be confirmed by the full Senate.

Although no committee Democrats opposed the nominations, they assailed the conservative views of Atty. Gen. Edwin Meese III during a free-wheeling three-hour hearing and voiced fears that the Administration was trying to engineer a legal shift to the right through its nominations.

“We don’t want a judiciary with loyalty to a political philosophy instead of the law,” Sen. Paul Simon (D-Ill.) said. “We face a real danger if we start having ideological tests for judges. . . . We are going to have great swings in court decisions.”

Meese, who was not present at the hearing, in recent months has drawn the wrath of liberals for urging the high court to overturn its controversial 1973 decision legalizing abortion and for sharply criticizing the court’s 1966 “Miranda ruling” that requires police to inform suspects of their rights before interrogating them.

Earlier Remarks

Sen. Joseph R. Biden Jr. (D-Del.) questioned Fried extensively about remarks he made earlier this year in which he declared that two landmark Supreme Court decisions--the Miranda ruling and a 1961 ruling barring the use of illegally obtained evidence in state courts--were “good examples of the judiciary’s departure from common sense.”

Fried said he regretted his choice of words and was not suggesting that the court should not have upheld barriers to forced confessions or illegal searches.

“But one must wonder whether it was wise to go as far as the Supreme Court did in laying down such detailed, rather intricate rules on confessions and search and seizure,” he said.

Fried, 50, had opened his testimony with a tribute to the late Justice John Marshall Harlan, whom he served as a law clerk in 1960 and who was among the court’s four dissenters in both the confession and search rulings.

Fried also defended the Justice Department’s decision to ask the court to overturn its ruling legalizing abortion. The department, he noted, had not taken a position on the political or moral questions of abortion but instead had said that the issue should be left to state legislatures.

He denied that the Administration was trying to “politicize” the office of solicitor general, a post he has held on an acting basis since June.

“Partisan political considerations have never entered into our judgments, and I would never allow them to enter into our judgments,” he said.

Markman, 36, chief counsel for the Senate Judiciary subcommittee on the Constitution, said in response to questions that, if confirmed, he would not use an “ideological litmus test” in recruiting and evaluating nominees to the federal bench. Such a test, he said, would be “inappropriate.”

Express Concern

Meanwhile, spokesmen for several liberal groups expressed concern over the Administration’s approach to selecting judges, pointing out, for example, that in filling some 200 vacancies in the past five years only three blacks had been named to federal district or appellate courts.

Herman Schwartz, a law professor at American University, said that previous presidents “almost never” have imposed ideological criteria in making appointments to the district and appeals court benches.