Bipartisan Support Not Enough for Nominee

If ever there was an unlikely candidate to be the target of a militant campaign against “judicial activism,” it would be Los Angeles lawyer Margaret Mary Morrow.

An honors graduate of Harvard Law School, Morrow, 47, was the first female president of the California Bar Assn., where she worked to strengthen the state’s attorney discipline system.

A commercial litigation specialist, Morrow is a partner in the Los Angeles office of Arnold & Porter, one of the most venerable firms based in the nation’s capital. Her clients have included First Interstate Bank, McDonnell Douglas, TWA and The Limited.

President Clinton, on the recommendation of Sen. Barbara Boxer (D-Calif.), tapped Morrow for a federal trial judgeship in May 1996. She quickly won broad bipartisan support--including endorsements from judges appointed by presidents Ronald Reagan and George Bush and governors George Deukmejian and Pete Wilson.

“Margaret is superbly well qualified,” said Los Angeles lawyer Robert C. Bonner, who has served as a federal judge and head of the Drug Enforcement Administration during Bush’s presidency.

She also received the highest possible rating--”very well qualified”--from the American Bar Assn.’s judicial evaluation committee. By late June 1996, after a perfunctory hearing, Morrow cleared the committee unanimously. But the nomination died, along with several others in the congressional slowdown that inevitably occurs in election years.

Clinton renominated Morrow on Jan. 7. Within three weeks, trouble emerged and her nomination remains in limbo even though she was approved a second time on June 12 by the Judiciary Committee, whose chairman, Orrin G. Hatch (R-Utah), said in late September that he would push for a swift vote and support her.

Much to the surprise of her backers, particularly her Republican supporters, Morrow has become the subject of the sort of intense partisan attacks generally reserved for nominees with a long record of activism such as civil rights lawyer Thurgood Marshall or a trail of controversial decisions such as Judge Robert Bork.

Indeed, the story of Morrow’s confirmation battle is in significant measure a tale about the fissures within the Republican Party about judicial nominations.

One conservative federal judge, speaking on condition of not being identified, said that, in reality, the campaign against Morrow has nothing to do with her qualifications or her views, but rather is part of a “conscious plan to downsize” the federal courts in the western United States with the goal of remaking them after Clinton’s presidency ends.

Echoed Bonner: “Margaret has gotten tangled in a web of larger forces about Clinton nominees. She is a mere pawn in this struggle.”

The campaign against Morrow began with a Jan. 28 op-ed piece in the Washington Times by Thomas L. Jipping, director of the militantly conservative Free Congress Foundation’s Judicial Selection Monitoring Project.

Jipping contended that Morrow was likely to become an “activist judge,” who improperly would attempt to legislate a political agenda from the bench. Soon, Republican Sens. John Ashcroft of Missouri and Jeff Sessions of Alabama, both staunch conservatives, new members of the Judiciary Committee and Jipping allies, joined the attack.

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Since that time, Morrow has been back to the committee for another hearing and answered three sets of questions in writing--including highly unusual questions about her positions on many California ballot initiatives during the past 10 years. She also told the committee she would adhere strictly to precedents and would have no problem applying the death penalty.

Last Wednesday, the effort to derail Morrow’s nomination escalated. Ashcroft and Sessions announced that they would spearhead further opposition to Morrow and said more than 100 “grass-roots” organizations, including the National Rifle Assn. and the Traditional Values Coalition, had joined the campaign against her.

The coalition was assembled while Ashcroft had placed a “hold” on the nomination, which under Senate protocol had prevented it from coming to the floor for a vote. On Wednesday, at a news conference announcing the coalition, he said he now favors a roll-call vote.

Ashcroft and Sessions pointedly reminded their colleagues that several organizations in the coalition would be “scoring” the votes of senators on the nomination.

Morrow’s adversaries contend that she would be a “judicial activist” on the bench. “She views the law as an engine for social change . . . and as a means of imposing public policy from the courts on the rest of us,” Ashcroft said.

Morrow declined to respond. “I do not believe it is appropriate for me to comment while my nomination is pending before the Senate,” she said in a brief telephone interview at week’s end.

Morrow has previously denied such characterizations. For example, in June 1996, she told the Judiciary Committee: “I view the role of a judge as being the resolution of disputes that come before . . . him or her for resolution. So I would look to the facts of the case. I would attempt to apply the law as I understand it to those facts. And I would not seek to expand them or otherwise to use any particular case as a reason for articulating new constitutional rights or otherwise expanding what I understand to be the existing law.”

Boxer and Sen. Patrick Leahy (D-Vt.), the ranking minority member on the Judiciary Committee, came to Morrow’s defense last week. Boxer described her as “the epitome of mainstream,” and Leahy charged that a coalition of conservative activists is using Morrow as “a fund-raising vehicle” for its campaign to reduce the power of federal judges.

Perhaps more importantly, several staunch Republicans said the accusations against Morrow are ludicrous. “My party has the wrong woman in their sights,” said Sheldon H. Sloan, former president of the Los Angeles County Bar Assn. and a close ally of Wilson. “There is no flag burning for Margaret Morrow,” said Sloan, describing the nominee as an outstanding lawyer and “a churchgoing, basketball mom.”

A large number of prominent Republicans have backed the nominee in writing--highlighted by rare letters of support from three conservative U.S. 9th Circuit Court of Appeals judges--Pamela A. Rymer, Cynthia Holcomb Hall and Stephen S. Trott. State Supreme Court Justice Marvin R. Baxter and state appeals court justices Roger Boren, H. Walter Croskey and Charles S. Vogel, all appointed by Republican governors, also have weighed in on Morrow’s behalf, as have Los Angeles Mayor Richard Riordan, then-state Assembly Majority Leader James E. Rogan of Glendale and Orange County Dist. Atty. Michael R. Capizzi.

In an effort to unclog the nomination, Trott, who earlier served as a high-ranking official in the Justice Department under President Reagan, recently wrote to Senate Majority Leader Trent Lott (R-Miss.).

“I know you are concerned, and properly so, about the judicial philosophy of each candidate to the federal bench. So am I. I have taken the oath, and I know what it means: follow the law, don’t make it up to suit your own purposes. Based on my own long acquaintance with Margaret Morrow, I have every confidence she will respect the limitations of a judicial position.”

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In their letters, some of Morrow’s backers have sought to clearly establish their bona fides with conservative senators.

“I am a lifelong Republican from Orange County, California,” Costa Mesa attorney Andrew J. Guilford wrote Hatch. “I have never voted for a Democrat in any presidential campaign. . . . I did not believe Anita Hill, I am happy that Justice Clarence Thomas is on our Supreme Court and I regret that [Robert] Bork is not on our Supreme Court. It is partly my concern over the unfair destruction of Judge Bork’s judicial career that causes me to enthusiastically endorse Margaret Morrow.”

Backers of Morrow cite her intellect, character and record of public service. As president of the Los Angeles County Bar Assn., she instituted a voluntary program urging attorneys to provide at least 35 hours of free legal services yearly for the poor. And she was a member of the commission that drafted an ethics code for Los Angeles city government.

Morrow’s advocates also assert that her speeches and writings have been distorted beyond recognition by her foes, particularly one sentence in a 1988 article on the initiative process that is cited as prime evidence of her “activist” proclivities.

In the Los Angeles Lawyer magazine article, Morrow wrote: “The fact that initiatives are presented to a ‘legislature’ of 20 million people renders ephemeral any real hope of intelligent voting by a majority.”

The article was written in the wake of one of the most expensive initiative campaigns in state history, highlighted by five complicated measures dealing with insurance and attorneys’ fees. At the time, many charged that television advertising about the measures was misleading, prompting widespread calls for reform.

Morrow’s article did not call for abolition of initiatives. The article noted that use of the initiative had escalated dramatically in the 1980s, discussed possible reforms of the initiative and legislative processes, and urged lawyers to play a role in improving government.

Croskey, an appointee of Deukmejian, said he was stunned that the article was cited as evidence that Morrow would improperly legislate from the bench.

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“She was making a profound and useful criticism of the initiative process and how it could be improved,” Croskey said. “To metamorphose that into the conclusion that she is a judicial activist has no foundation.”

On Friday, Croskey faxed a letter to Lott urging the senator to bring the nomination to the floor for a vote. But it seems unlikely that will happen before Congress adjourns in the next few weeks. Lott, who has the power under Senate procedure to hold up the nomination indefinitely, said a few days ago that he felt no pressure to take any action on judicial nominees during the remainder of the year.

The White House declined to comment last week on Morrow’s nomination.