Senate Confirms Manion 50 to 49 : Bush Vote, Although Unneeded, Breaks Tie as Jurist Squeaks By

The Senate Wednesday approved by a single vote the controversial nomination of Daniel A. Manion to a federal appeals court, with Vice President George Bush casting a tie-breaking vote for the Indiana lawyer that opponents had claimed was unqualified.

The 50-49 vote was the second vote on the politically charged nomination, which President Reagan had deemed a major test of his appointment prerogatives. Only five Republicans defected from party ranks and voted against Manion, while two Democrats supported him.

Manion’s nomination had been approved narrowly last month, but the outcome of that vote had been disputed immediately. Senate Minority Leader Robert C. Byrd (D-W.Va.) had demanded that the Senate reconsider Manion’s appointment to the U.S. 7th Circuit Court of Appeals, whose jurisdiction includes Illinois and Indiana.

Bush Vote Symbolic

Bush’s vote technically had not been needed to clinch the appointment, because the second test was on a vote to reconsider the earlier confirmation and a tie was all that was needed. However, a spokesman said the vice president believed that it was “important to register the Administration feeling, as well as to let people know how he felt.”

The intense fight over the nomination of the 44-year-old conservative attorney reflects a larger and escalating battle of wills between Reagan and the Senate over the issue of judicial appointments. Those lifetime appointments offer Reagan his best hope of leaving a lasting conservative ideological imprint on American society after he leaves office.

The stakes will soar next week, when the Senate Judiciary Committee begins hearings on Reagan’s nomination to elevate William H. Rehnquist to chief justice and follows them with hearings on the nomination of Antonin Scalia to replace Rehnquist as a Supreme Court justice. Both men, however, are expected to win easy confirmation.

Manion’s nomination marked the first test of Reagan’s clout on judicial appointments since the President’s defeat on a judicial nomination last month, when the Judiciary Committee rejected the nomination of Jefferson B. Sessions III to a federal district court in Alabama. The increasingly rebellious committee earlier had refused to endorse Manion’s nomination as well but had allowed it to be sent to the Senate floor without recommendation.

Heightened Sensitivity

Some opponents said the showdown over Manion has heightened the Senate’s sensitivity to its constitutional duty as the single legislative body screening judicial nominations and may intensify its scrutiny of Supreme Court nominees.

“In the future, Reagan certainly is on notice,” said Nancy Broff, speaking for the Judicial Selection Project, a coalition of organizations that opposed the Manion nomination.

For the time being, however, the Administration celebrated Manion’s nomination as an unqualified victory. Reagan jubilantly announced it to a cheering crowd at a political rally in Dallas.

And, before a political fund-raiser for Sen. Paula Hawkins (R-Fla.), Reagan said at a rally in Miami that the senator was delayed “because a judge I nominated had to be ratified, and a little lynch mob had organized resistance against his appointment--we won by one vote.”

The President telephoned Senate Majority Leader Bob Dole (R-Kan.) from Air Force One shortly after the vote and was quoted by an aide to Dole as thanking the majority leader for “a great engineering job.” Victory came when one senator reversed his earlier vote against Manion and another opponent agreed not to vote at all.

“Today’s vote vindicates (Manion) and his selection,” Atty. Gen. Edwin Meese III said in a statement. Meese congratulated the Senate for “resisting extremist attempts to politicize the judicial confirmation process” and Manion for withstanding “vicious and unfounded ideological assaults against his professional reputation.”

California Republican Pete Wilson voted for the nomination, while Alan Cranston, the state’s Democratic senator, voted against it.

Critics claimed that Manion’s legal record was average, at best. The standard for federal judgeships should be “one of excellence--not mediocrity, not bare minimum, not scraping by--excellence,” argued Sen. Joseph R. Biden Jr. of Delaware, the Judiciary Committee’s ranking Democrat.

Critics claimed that a review of some of Manion’s legal briefs showed that they were poorly written and included many misspellings. The critics also repeatedly referred to the fact that Manion, who has little experience practicing law outside a state court, had been given the lowest acceptable rating by the American Bar Assn.

But Manion’s supporters noted that roughly half of all judges now sitting on federal benches had been elevated to those jobs with no better than the “qualified” ABA rating given Manion. They insisted that opposition was actually based on Manion’s conservatism, not his competence.

‘Ideological Attack’

“This is an ideological attack. There is no question about it,” said Sen. Orrin G. Hatch (R-Utah), one of the Judiciary Committee’s most influential conservatives. Sen. Dan Quayle (R-Ind.), Manion’s chief Senate supporter, added that Reagan “has the right to appoint judges who share his judicial philosophy.”

Manion’s conservative views became well known in Indiana during the 1970s, when he used to appear on “Manion Forum,” politically oriented radio and television programs, with his father, Clarence Manion, a founder of the right-wing John Birch Society.

Biden and others denied that their objections were based on Manion’s political views and noted that they had voted to approve some of Reagan’s other conservative nominations.

Opponents nonetheless had suggested that Manion’s conservatism could temper his willingness to conform his own judicial opinions with those of the Supreme Court.

They noted, for example, that as an Indiana state senator, Manion had sponsored a 1981 measure authorizing the posting of the Ten Commandments in public schools only two months after the U.S. Supreme Court had struck down a similar Kentucky law. Manion also had endorsed literature that was harshly critical of the high court.

Testifying at his confirmation hearings, Manion distanced himself from those earlier stands and pledged to follow the Supreme Court’s legal dictates.

Praise for Manion

Many lawyers and judges in Illinois and Indiana, including several political foes, have praised Manion as a competent lawyer who became a pawn in Senate politics.

Senators also hurled bitter criticism at each other during the debate. One target was Sen. Slade Gorton (R-Wash.), who reportedly had expressed reservations to other senators about Manion’s qualifications. Gorton decided to vote for Manion minutes before last month’s vote, but only after receiving Reagan Administration assurances that it would proceed on a stalled Washington state judicial appointment being sought by Gorton.

Sen. Edward M. Kennedy (D-Mass.) made indirect references to the incident as “a deplorable episode in the rule of law--the selling of the federal judiciary.” Sen. Howard M. Metzenbaum (D-Ohio) said the earlier vote had been “tainted by the open trading of judges.”

Gorton insisted that he had been convinced that Manion was qualified and was only employing the common tactic of using his vote on a national issue as leverage to get the Administration to address a local concern. However, he acknowledged that he would not have nominated a man with similar qualifications for a judgeship in Washington state.

Several absences for the initial vote on Manion last month had cast doubt on the validity of its official 48-46 outcome. Several opponents of the nomination had agreed to withhold their votes to offset those of absentees they believed to be supporting Manion but later discovered to their dismay that those senators had actually claimed to be undecided.

Dole had threatened to postpone Wednesday’s vote because he feared that the absence of Sen. Barry Goldwater (R-Ariz.), who was hospitalized unexpectedly early Wednesday morning, would mean defeat. However, Sen. Dennis DeConcini (D-Ariz.) agreed to refrain from casting his planned negative vote, offsetting his fellow Arizonan’s absence.

(Goldwater was admitted to Walter Reed Army Medical Hospital with abdominal pain, but tests found he only had indigestion and aides said he would be released today.)

A key vote toward providing a victory came from Sen. Daniel J. Evans (R-Wash.), who switched from his earlier opposition. Evans said he continued to have reservations about Manion’s qualifications but did not believe the Senate should be reconsidering the vote it had already cast several weeks ago.