Senate OKs but Will Reconsider Manion as Judge

After a dramatic session of risky moves and switched votes, the Senate left the controversial federal appeals court nomination of Daniel A. Manion hanging by a thread Thursday.

Final action was postponed until Congress returns from its July Fourth recess. As matters stand now, it is possible that Vice President George Bush, serving as the Senate’s presiding officer, will be given an opportunity to break a 50-50 tie and cast the deciding vote in Manion’s favor.

President Reagan’s nomination of Manion--an Indiana attorney accused by Democratic-led opponents of being inexperienced and extreme in his conservative views--for a seat on the U.S. 7th Circuit Court of Appeals has been fought largely along partisan lines. In Thursday’s voting, all but five Republicans supported Manion, while all but two Democrats opposed him.

Republicans Surprised

Manion’s backers say the dispute is ideological, contending that Democrats oppose him because he is too conservative. But Democrats, led by Sens. Joseph R. Biden Jr. (D-Del.) and Paul Simon (D-Ill.), insist that the issue is not ideology but qualifications.

Thursday’s unusual parliamentary battle began when Democratic leaders, believing that they had the votes to defeat Manion, surprised Republicans by moving for an immediate roll call to avoid a lobbying drive by President Reagan.

Republican Majority Leader Sen. Bob Dole of Kansas, startled by West Virginia Sen. Robert C. Byrd’s request, said he would “need a few minutes to take a quick head count and see how many of (Manion’s allies) are in town. If it were my gamble, I would take it. But I’m gambling with somebody else’s future.”

After haggling that resembled a flea-market scene, Dole finally acquiesced to a vote.

However, with the tally 48 to 47 against Manion, Sen. Nancy Landon Kassebaum (R-Kan.) withdrew her vote, indicating that it was being done as a courtesy to offset the absence of Manion supporter Barry Goldwater (R-Ariz.), who was in Washington but inexplicably detained.

That left Bush in position to break the 47-47 tie and hand Manion victory. But, in a parliamentary move that qualifed him to force reconsideration of the vote next month, Byrd switched his vote, briefly giving Manion a 48-46 edge but paving the way for the delay.

If all absentees had been present Thursday, the projected vote would have been 50 to 50, enabling Bush to break the tie.

A Test of Will

The nomination of Manion has become both a symbolic and practical test of will for conservatives and liberals that has focused as much on political partisanship as the judicial qualifications of the nominee.

Those opposed to Manion--charging that he is not qualified and has comparatively limited legal background--have maintained that the Senate must draw the line at his nomination or risk seriously compromising the nation’s judicial standards.

And several liberal law professors have argued recently that the Senate has a constitutional duty to maintain ideological “balance” in the federal courts if Reagan continues nominating conservatives for vacancies.

President Reagan, responding to the mounting charges against Manion, became personally involved in the battle, defending his decision in his weekly radio address Saturday. And, in an interview Monday with The Times, Reagan--viewing the opposition as strictly partisan but nonetheless a potential threat to his drive to place conservatives on the federal bench--agreed that he would risk being “relegated into lame duck” status if he did not make a stand on the Manion nomination.

Similarly, a White House official said Thursday, Reagan is battling for this nomination because “it’s a matter of principle--not only on the appointment itself, but because the power of the presidency is on the line.”

Reagan, for the most part, has encountered little Senate opposition to his 264 prior nominations to the federal district and appellate bench.

However, only in the last month he was rebuffed by the Senate Judiciary Committee, which rejected a Reagan judicial choice for the first time in turning down the nomination of Jefferson B. Sessions III as a federal district judge in Mobile, Ala. And the rejection of Manion would mark the first time that a Reagan nominee had been defeated on the Senate floor.

It is clear that the rejection of Manion would represent a turning point of sorts in the Senate’s role in scrutinizing judicial appointees. Any future nominees who, like Manion, seem relatively limited in their legal backgrounds could expect substantial opposition--and that opposition would intensify if their political views seemed too far to the right or left.

But there is wide agreement that nominees with solid experience and proven legal ability would likely win confirmation, regardless of their views of politics or the role of the judiciary.

These observers, for example, believe that Reagan’s pending nominations of Supreme Court Justice William H. Rehnquist to succeed Chief Justice Warren E. Burger and the naming to the high court of appellate Judge Antonin Scalia are not likely to be jeopardized by the Manion fight, no matter which way it is resolved.

“Whether Manion goes through or not, the effect on us is minimal,” said a Justice Department official, declining to be quoted by name. “The Reagan judicial view will still be put forth on the courts--and if you have Rehnquist and Scalia at the apex of the judiciary--which is already conceded by some of those who oppose Manion--then you have won the battle.”

Times staff writer Philip Hager contributed to this story.