Some Political Foes Back Manion Court Nomination

Daniel A. Manion, whose nomination to the federal appeals court in Chicago has touched off a savage partisan battle and split the Senate down the middle, receives surprisingly high marks from political foes and friends alike here in his home state for both his integrity and his legal talents.

Back in Washington, Manion is portrayed by Democrats and a handful of liberal Republicans as a mediocre lawyer unfit to join the federal judiciary at the level just below the Supreme Court.

Senate opponents, who hope to sink his nomination this week after having narrowly lost a preliminary vote July 2, are backed by a raft of law school deans and reform-minded Chicago lawyers who challenge Manion’s limited experience in federal court, criticize his writing ability and question his willingness to adhere to Supreme Court rulings.

Yet to many who have dealt personally with the 44-year-old Manion, all that is a bum rap.

Manion, his supporters contend, is actually a competent lawyer who has become a pawn in a larger Democratic campaign to keep President Reagan from placing qualified conservatives on the federal bench.

While acknowledging a touch of local bias, Manion’s defenders here--notably Democratic lawyers, judges and former state Senate colleagues--insist that the amiable, soft-spoken South Bend attorney would be a credit to the federal appeals court.

David T. Ready, a former U.S. attorney and self-described liberal Democrat, said Republican Manion possesses the required “temperament, legal intellect, experience, fair-mindedness, judicial integrity and plain, old-fashioned willingness to work long and hard.”

In fact, the real Manion may be less than coruscating, but his nomination also appears to be less than the travesty his critics suggest.

Interviews here and in Chicago and Washington, coupled with an examination of Manion’s professional record, suggest an able though scarcely brilliant attorney who has become caught up in a partisan brawl.

The struggle over Manion derives extra intensity from the fact that the larger battle over judicial nominations will shape the federal courts for years to come. With 2 1/2 years still to go in his second term, Reagan has already named 267 of the 752 judges on the federal bench--the district courts, circuit courts of appeals and the Supreme Court.

Thus, while Democrats insist that their challenge to Manion rests strictly on questions about his personal qualifications, he also appears to symbolize what many liberals see as an extreme effort by the Reagan Administration to make sure that all judicial appointees meet strict standards of ideological conformity.

“In nobody’s memory has an administration tried to put in sitting judges who have prejudged all the issues,” complained television producer Norman Lear, head of People for the American Way, which has opposed Manion and many other Reagan court appointments.

Indiana Supporters

Here in Indiana, Manion’s list of supporters includes Father Theodore M. Hesburgh, president of the University of Notre Dame and former chairman of the U.S. Civil Rights Commission; former Democratic Sen. Vance Hartke; present and former state senators; a respected Democratic judge; the chairman of the county Democratic committee here, and Democratic attorneys who have worked with and against Manion in lawsuits.

John W. Montgomery, a longtime state judge and Democratic leader here, asserts that Manion is being unjustly portrayed as an “incompetent small-town lawyer” and an ideological copy of his late father, Clarence Manion, a prominent official of the John Birch Society.

“Dan Manion is qualified. If he were not, I have enough principle about me not to say that he is,” the crusty Montgomery wrote to Sen. Joseph R. Biden Jr. (D-Del.), who is managing the opposition to Manion on the Senate floor.

‘High Regard’

Attorney Douglas McFadden, a Democrat with offices in Indianapolis and Washington, said he developed “high regard” for Manion while competing with him in a complex securities fraud suit that was settled out of court--”very favorably” for Manion’s client, according to another admiring attorney in the case.

“Not everybody appointed to the federal appeals court is going to be a Justice (Oliver Wendell) Holmes,” McFadden said, “but I think Dan will bring to the bench a very practical, level-headed, fair approach.”

Doug Hunt, a liberal Democrat who served a four-year term with Manion in the state Senate, called him “a hell of a good guy who has all of the qualities of intellect and character for the position he has been nominated to.” Hunt discounted Manion’s much-criticized support of a “flaky bill” that would have allowed the 10 Commandments to be posted in public schools despite a Supreme Court decision barring the required posting of such a document.

‘Score Like Diver’

“I don’t think it represents his overall record,” said Hunt, who cited other successful Manion bills to improve the juvenile justice system and provide alternative sources of energy. “He should be scored like a diver: You throw out the high and the low scores.”

Sen. Paul Simon (D-Ill.), a leading opponent of Manion’s nomination, dismisses such endorsements.

“Obviously, you bend over backwards to help someone in your home town or state,” said Simon, a reform-minded member of the Senate Judiciary Committee who is politically allied with one of the groups leading the charge against Manion--the predominantly liberal Chicago Council of Lawyers. “You’ll rarely find a lawyer there publicly critical of the nominee. In the back of their minds, they figure they may come up before this guy” if the Senate agrees to make him a judge.

‘Shouldn’t Be Judge’

“All I can say is, this kind of guy shouldn’t be a judge in a rural county, much less on the second highest court in the land,” he said.

As Simon suggested would happen, several Indiana lawyers, legislators and former officials who are critical of Manion spoke only off the record when interviewed by The Times, or asked not to be identified.

Some, such as South Bend Assistant City Atty. Carolyn V. Pfotenhauer, commented only guardedly. Referring to one legal encounter with Manion, she said: “He handled the case differently than I would have, and I won.”

‘Really Irritated’

In an interview, Manion said he felt special weight ought to be given to the support of those who know him best, particularly Democrats who are “really irritated at their own party for attempting to make a fool of me.”

Manion said the backing of Hesburgh, who praised Manion’s “commitment to justice,” stemmed not so much from firsthand knowledge of his legal skills as from a longtime relationship with his family.

“But who can better testify about one’s temperament, personal philosophy, the kind of person you are?” Manion asked.

Different Standards

A key element in the dispute over Manion is the fact that the combatants are appraising Manion’s fitness against different standards.

Manion’s supporters argue that a federal judge does not have to be a dazzling litigator or legal scholar so long as he is reasonably bright and exceptionally fair. Critics seek to discredit Manion by applying a more demanding standard, suggesting in effect that federal judges--like the children of Lake Wobegon--should all be above average.

For his part, Manion said he disagrees with the notion that an appeals court judge “has to be some kind of an elite person. I don’t think a person has to be above everyone else. I think it can be a person who is competent, has integrity, will work hard and can master the legal issues.”

‘Qualified’ Rating

Using such criteria as intellect, writing ability, legal experience and temperament, the American Bar Assn. rated Manion “qualified,” the lowest of three passing grades. The same rating has been given to 43% of Reagan’s appeals court choices, including Supreme Court nominee Antonin Scalia when he was tapped for the appeals bench. Scalia is now widely praised as a scholarly judge with a powerful legal mind.

The ABA said that between one and four members of its 14-person screening panel considered Manion “not qualified” but as a matter of policy would not name them.

Much of the ammunition used against Manion has come from the reform-minded Chicago Council of Lawyers, which has 1,400 members.

Lifetime Job

Charging that Manion “would not be able to deal adequately with the difficult legal issues that are routinely presented” to the appeals court based in Chicago, the council declared that he was unqualified for the lifetime job.

The council complained that Manion had argued few cases in federal court and that his state court experience was limited primarily to small personal and commercial claims, particularly land condemnation cases. When asked on a Senate Judiciary Committee questionnaire to list the 10 “most significant” cases of his 13-year legal career, Manion included one involving a car dealer accused of misrepairing a Volkswagen Rabbit.

The Chicago group reviewed five of Manion’s legal briefs and said they were dotted with spelling and punctuation errors, bad grammar, poor organization and less than forceful arguments.

Court of Last Resort

“He is not an incompetent lawyer. He is just not up to the standard for what is really the court of last resort for most of the cases that get there,” council President Robert Perkins said.

Simon, Biden and three other Democrats on the Senate Judiciary Committee also accused Manion of having taken extreme positions in the past supporting the Birch Society and defying Supreme Court decisions. They said his efforts to explain them away at hearings on his nomination lacked credibility.

In a report, the Democrats contended that Manion’s sponsorship in 1981 of the 10 Commandments bill--what Manion termed a “legislative protest” of the Supreme Court--demonstrates a clear refusal to support the Constitution. As further evidence, they cited his ringing endorsement in 1977 of a book by the late archconservative Rep. Larry P. McDonald (D-Ga.) that said “a Supreme Court decision is not the law of the land” and called both the 1964 Civil Rights Act and the Supreme Court’s 1954 school desegregation decision unconstitutional.

Position Confusing

Moreover, the Democrats said, Manion once repudiated the long-established doctrine that Bill of Rights protections are binding on the states. They said his newly articulated position is confusing.

The Democrats also noted a 1979 letter from Manion to a Birch Society office, stating: “Your members are certainly the people who are on the front line of the fight for constitutional freedom. . . . “ At a hearing, Manion said the letter was merely a thank-you note for condolences offered on the death of his father and did not indicate that he agreed with positions of the society, to which he has never belonged.

Arrayed against a President who has lobbied fiercely to win Manion’s confirmation, the opposition has been bolstered from the outside by 50 law school deans and groups such as Common Cause and People for the American Way.

Two Deans Surprised

However, two deans contacted by The Times--Paul D. Carrington of Duke and Arthur N. Frakt of Loyola in Los Angeles--expressed surprise at the Indiana support for Manion.

“I’m feeling a little sheepish,” said Frakt, who signed a group letter based on materials sent by a law professor and a liberal activist in Washington. “If it turns out he is someone of substantial ability, I would feel it was unfortunate he got caught up in this.”

Carrington, after hearing of the praise Manion received from associates in Indiana, said he was reminded of the “false views” that developed on appellate Judge Clement F. Haynsworth Jr. when his nomination to the Supreme Court was rejected in 1969. Today, the conservative Haynsworth wins wide praise even from liberal law professors.

Backers Incensed

Manion’s bulging list of assailants has incensed his backers, who believe they are fighting an elitist, big-city bias.

“I would think the Chicago Council of Lawyers would welcome a person of Dan’s integrity to the bench,” Ready said, “considering the fact you can’t pick up a newspaper without reading about the indictment or conviction of some Chicago judge. The only convicted judge from the 7th Circuit (Court of Appeals) was not a small-town lawyer from Indiana, but a big hitter from Chicago, Otto Kerner.”

And lawyers who have rallied around Manion scoff at the attacks on his briefs and limited experience.

Won Three

“The proof is in the pudding,” said attorney Robert M. Parker, who noted that Manion had won three of the five cases submitted for Senate scrutiny, with one still pending.

Both Parker, a Republican, and attorney Kenneth P. Fedder, chairman of the local Democratic committee, contend that Manion is a victim of guilt by association: People figure he is the strident ideologue his father was. Actually, said Frank L. O’Bannon, Democratic leader of the state Senate, Manion pleasantly surprised him as “not radical or strident, but very kind and quiet and almost gentle . . . a good listener, though very firm in his conservative convictions.”

If confirmed, Manion would be the first Vietnam veteran to go on a federal appeals court. As an Army lieutenant, he was in charge of a supply depot.

Intramural Boxer

An intramural boxing champion at Notre Dame, Manion recently won a canoeing and running biathlon. He was felled by a bout of multiple sclerosis seven years ago, but said he is now in excellent health.

Sen. Dan Quayle (R-Ind.), who attended night law school with Manion at Indiana University while both held state jobs, recalled that Manion went to the library after class while others went home.

“He is what you’d call a straight arrow in the nice sense,” said Quayle, a friend and leading Senate supporter.

Manion, told he had been described as “very serious, almost to a fault,” laughed and said: “Well, I don’t drink or smoke, but I’ve had a lot of fun at parties I give, and I’m a real good rock ‘n’ roller.”