Strict Reconstructionist

The Reagan Administration intends to appoint Lino A. Graglia, a University of Texas law professor, to a vacancy on the 5th U.S. Circuit Court of Appeals, which sits in New Orleans and covers Texas, Louisiana and Mississippi. At the urging of the Justice Department, the White House has sent Graglia’s name to the FBI and to the Judicial Screening Committee of the American Bar Assn., which reportedly found him “unqualified.”

Still eager to appoint Graglia, the White House pressed the Bar committee to reevaluate him, and that apparently is being done. But the panel was right the first time. Graglia’s record in both words and deeds makes him unfit for a federal judgeship.

Graglia is a longtime and outspoken opponent of school busing--which is his right, but his opposition has gone beyond mere advocacy. In 1979, when the federal courts ordered busing to integrate the schools in Austin, Tex., Graglia urged that the court order be ignored. At a community rally to oppose busing he said, “You are under no obligation to go along with this. Busing can be stopped if we all get together and stop it.” And, in a column in the Austin American-Statesman, he added, “It is certainly correct that citizens in a democracy ordinarily have a moral obligation to obey the law whether they agree with it or not, but this obligation is clearly dissolved when ‘the law’ is a prescription for community destruction . . . . Our courts are not subject to law--they are free to make ‘the law’--unless citizens refuse to acquiesce in their illegal decrees.”

Graglia’s statements urging defiance of a federal court reflect his overall view that the judiciary has usurped unwarranted power and that constitutional rights are much more limited than the courts in this century have held them to be.

In an article last year in the National Review entitled “Was the Constitution a Good Idea?” Graglia said, “It is doubtful that the net contribution of the Constitution to our national well-being has been positive, and it is certain that the net contribution of judicial review has been negative.” Furthermore, he wrote, “Even without judicial review, most constitutional restrictions are just bad ideas.” Small wonder that the Bar committee found Graglia unqualified.

In 1981 Graglia was considered for the post of assistant attorney general in charge of the Justice Department’s civil-rights division. But Atty. Gen. William French Smith rejected him as too extreme. Now that Edwin Meese III is attorney general, Graglia’s fortunes have been revived. They see eye to eye on these basic issues of the Constitution and the role of the judiciary.

Graglia clearly lacks the temperament to be a judge. His views and actions are not in keeping with this country’s basic understanding of justice. The White House should not nominate him; if it does, the Senate should turn him down.