THE COURTS : Diversity Goal Hurts Liberals

David M. O'Brien is a professor at the University of Virginia and author of "Storm Center: The Supreme Court in American Politics" and an annual "Supreme Court Watch" (Norton), among other books.

President Bill Clinton is backpedaling in his Department of Justice and in his selection of judicial nominees.

The loss of Democratic majorities in Congress gave Republicans the final word on judicial appointments. In assuming the chairmanship of the Senate Judiciary Committee, Utah's Republican Sen. Orrin G. Hatch plans to make the most of it. He is already playing hardball.

Even before November's election results, Hatch and other Republicans were vowing to oppose any nominees they deemed too liberal. A couple were lambasted during their confirmation hearings. Yet, only two of Clinton's 127 lower-court judges were targeted by Republicans for defeat, and they were ultimately confirmed by the Senate.

The great irony is that Clinton has not sought out liberal nominees. On the contrary. A quest for diversity and a more representative judiciary have basically replaced ideology as Clinton's guiding principle.

During the era of Republican Presidents Ronald Reagan and George Bush, judicial candidates' stands on controversial issues like abortion became "litmus tests." Some liberal interest groups expected Clinton to sharply reverse this approach. Instead, his Administration charted a centrist course. It has deferred to home-state senators on recommendations for district-court judges, even when the nominees went against the President's stand on a woman's right to choose abortion, for instance.

By the end of Clinton's second year, his Justice Department had amassed an impressive record of choosing highly qualified judges who brought greater diversity to the federal bench. Besides confirming his two non-controversial Supreme Court nominees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, the Senate confirmed the highest number of lower-court judges ever for a President's first two years in the Oval Office. More important, the American Bar Assn. rated 65% of Clinton's judicial appointees "well-qualified," the organization's highest ranking. By comparison, 59% of Bush's, 55% of Reagan's and 56% of Carter's appointees were similarly ranked.

In addition, nearly 60% of Clinton's judges are minorities and women. More such non-traditional federal judges were appointed by Clinton than by any preceding President. (About 25% of his judges are African Americans, 9% are Latino and 31% are women.) Indeed, Clinton has mostly fulfilled his campaign promises both to seek high-caliber appointees and to bring greater diversity to the federal bench. To his credit, he has achieved that without sacrificing quality. Unfortunately, Clinton has been unable to get even this important message out.

His Administration's anticipation of Republican opposition to nominees who appeared (or could be portrayed as) too liberal caused it to appoint mostly moderate to conservative lower-court judges. As a result, his judicial appointments, on balance, have disappointed some liberals and groups like the Alliance for Justice, which has monitored judicial appointments since the Reagan era. Criticism from the left, moreover, has been largely dismissed by the Administration.

Meanwhile, during the President's first two years, the Justice Department has become even more deferential to and conciliatory toward Senate Republicans. Given the new powers in the Senate, Clinton has no practical alternative.

Within the past two weeks, two judicial nominees whom Clinton put up last year were abandoned because Republicans threatened to block their confirmation. California's Democratic Sen. Barbara Boxer was told by the Administration that it had withdrawn support for the two nominees she had recommended--R. Samuel Paz and Superior Court Judge Judith D. McConnell--and the President had nominated. They became the first but probably not the last to be forsaken to avoid controversy.

Clinton is also reconsidering earlier plans to elevate to the federal bench two prominent and respected lawyers within the Administration. Both Health and Human Services counselor Peter Edelman and Assistant Atty. Gen. Walter Dellinger were targeted by Republican senators and conservative interest groups. They may never get the nod.

The President's retreat into naming more conservative judicial nominees may not be enough to satisfy Senate Republicans, however. In particular, Hatch may go for the jugular. By delaying or refusing to hold hearings on judicial nominees, he may sharply limit the number of judges Clinton appoints during the next two years. Hatch has suggested that only one confirmation hearing should be held each month and that the number of appellate-court nominees considered should be limited to one at each hearing. In these ways, he could block the appointment of a considerable number of federal district and appellate-court judges.

The reason why Hatch may try to narrow Clinton's opportunities to name more judges is clear. But it is not as simple as thwarting nominees who come across as too liberal. Rather, it is because GOP-appointed judges now dominate the federal judiciary, filling 65% of the seats on the bench, and Hatch aims to conserve as much of the revolution forged in the federal courts by Reagan and Bush as possible. GOP judges comprise majorities on each of the 13 circuit courts of appeals and on all but one of the district courts. Currently, there are 68 judicial vacancies, including 15 on the appellate courts.

If Hatch schedules confirmation hearings just once a month, for example, and includes only one appellate-court nominee per session, his obstructionism will go well beyond past partisan politics of "turnabout-is-fair-play." Even when Democrats controlled the Judiciary Committee and Reagan and Bush were in the White House, confirmation hearings were never so severely restricted.

Such mean-spirited tactics to scuttle Clinton's chances to fill present and future vacancies on the federal bench would not only be unprecedented. They would also prove unwise, exacting a price from the courts and the country. The federal judiciary would be deprived of much-needed judgeships. As Chief Justice William H. Rehnquist said recently, "There is perhaps no issue more important to the judiciary right now than the serious judicial vacancy problem." It is also a problem certain to grow.

Nationally, appeals in the federal appellate courts jumped 24% between 1989-93. In the district courts, civil filings have increased 9% over the last three years. Leaving aside the caseload of criminal cases, a diminished federal bench will further delay civil suits currently pending, due to crowded dockets. "Justice delayed is justice denied," as the old saying goes. And that will be the price paid by citizens, if Hatch and other Republican obstructionists prevail.

That price is too high. Even if Clinton is able to fill current vacancies, Reagan-Bush majorities would be eliminated on only three circuits, at best. If the President fills all the openings on the appellate bench, Republican-appointed judges would still constitute majorities on all but one circuit court of appeals.

Rather than backpedal, Clinton should stand firm on his record of making highly qualified judicial appointments while bringing diversity to the federal bench. No less important, during the next two years, he needs to defend the courts and the country against Republican obstructionism that could ultimately deny access to justice in exchange for preserving modest partisan political advantage.

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