Dole Faults Clinton Judges, but Charge May Not Stick

For nearly four years, liberal activists who follow the federal courts have repeatedly pronounced themselves disappointed with President Clinton.

To fill vacant seats on the federal bench, Clinton and his advisors have sought out veteran prosecutors, experienced judges and state officials. They have shied away from liberal academics and civil right activists.

Nonetheless, Senate Majority Leader Bob Dole (R-Kan.) has made Clinton’s record of appointing “liberal judges” a growing element of his presidential campaign--using the issue as the centerpiece of a speech Friday to the American Society of Newspaper Editors.

Clinton’s judges “are precisely the ones who are dismantling those guard rails that protect society from the predatory, the violent, the antisocial elements in our midst,” Dole declared.

Dole may face some difficulties in pursuing that theme, however, for Clinton and his aides have been so fearful of the “soft on crime” label that the administration has tried mightily to screen out judicial nominees who could be labeled as pure liberals. At the first sign of controversy, Clinton has usually moved to withdraw a disputed nomination.

Ramona Ripston, executive director of the ACLU of Southern California, criticized the White House last year for an “absence of intestinal fortitude.”

She was reacting to Clinton’s decision to withdraw the judicial nominations of Los Angeles civil rights lawyer R. Samuel Paz and San Diego Superior Court Judge Judith McConnell. Paz was criticized by police groups for having brought a number of civil suits seeking damages for victims of alleged police brutality. McConnell was criticized by a conservative women’s group over a 1987 custody decision involving a gay man.

When some Senate Republicans said they opposed the two nominations, Clinton withdrew them before a hearing could be held.

Similarly, liberal lawyers have championed Georgetown University law professor Peter Edelman for a seat on the U.S. appeals court here. A former aide to the late Sen. Robert F. Kennedy, Edelman is a prominent and outspoken liberal who worked for the White House during the transition to the Clinton administration. His wife, Marian Wright Edelman, heads the Children’s Defense Fund. But Clinton dropped plans to nominate him after Republicans said they would fight.

When faced with two vacancies on the Supreme Court, Clinton has spoken about naming a prominent liberal such as former New York Gov. Mario M. Cuomo, former Sen. George J. Mitchell (D-Maine) or Interior Secretary Bruce Babbitt.

But warned that those choices would be controversial, Clinton backed away and turned to obscure appellate judges. Some of the loudest applause for the nominations of Ruth Bader Ginsburg and Stephen G. Breyer came from Sen. Orrin G. Hatch, the conservative Utah Republican who chairs the Judiciary Committee.

So far, the two have compiled records as moderate liberals on the high court. Both dissented from last year’s 5-4 ruling limiting federal affirmative action, and both were in the 5-4 majority that struck down term-limits laws.

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But on crime cases, neither has been predictably liberal. Last month, for example, Ginsburg cast the deciding fifth vote to rule that the government could seize the property of an “innocent owner” if someone else used the item--a car in this case--to commit a crime.

In Friday’s speech, Dole strongly attacked two liberal judges who were named to federal appeals courts by Clinton--Rosemary Barkett of Florida and Lee Sarokin of New Jersey. Both fit the liberal stereotype. Barkett, as a member of the Florida Supreme Court, repeatedly found reasons for reversing death sentences, while Sarokin as a trial judge decided that the 1st Amendment protected a loud and smelly patron from being ejected for a public library.

Barkett and Sarokin were the only Clinton nominees among more than 125 to the federal bench who drew active opposition in the Senate.

Recently, to the dismay of liberals, Sarokin announced he is retiring from full-time duty on the U.S. appeals court in Philadelphia.

Barkett now sits on the U.S. appeals court in Atlanta, but thanks to changes in the federal habeas corpus law passed by Congress this week, she will have virtually no role in reviewing death penalty cases.