WASHINGTON. — Washington -- Last week's vote rejecting the nomination of Judge Kenneth Ryskamp to a circuit court seat may mark the beginning of a major battle over the courts, or it may prove only a temporary setback for an administration bent on reshaping the federal judiciary. It is up to the Senate.
That President Bush is trying to change the judicial landscape is hardly surprising. Campaigning in 1988, he promised to appoint judges in the Reagan mold, and he has done so. Nearly two-thirds of circuit-court nominees were plucked from the Reagan bench or from the Reagan administration. As a result, a conservative majority is in place in all but three of the 13 circuit courts.
The Reagan-Bush judges are making a difference. Their judgments have rewritten much of the civil-rights and civil-liberties legislation of the recent past. A recent study found that plaintiffs claiming race discrimination, and lawsuits by environmental and civil-rights groups, won far less support from the federal bench.
The Reagan-Bush judges can frustrate much of the social legislation being contemplated by Congress, yet the Senate remains reluctant to exert its constitutional check on the presidential power to appoint. Judge Ryskamp was the first nominee defeated, after 77 sailed through confirmation.
A 1988 study of the Twentieth Century Fund Task Force on Judicial Selection reported that the Senate rarely challenges presidential selections. Examining the appropriateness of judicial nominees is difficult, often unpleasant work unless local citizens' groups turn up the heat in the home state, as happened with Judge Ryskamp. Without constituent pressure, senators see few political benefits from trying to derail a judicial nominee.
Except for a handful of organizations, the public, and particularly the private bar, has not been pressuring the Senate to scrutinize nominees more rigorously. The American Bar Association has been largely muted during the Bush administration, which threatened to exclude it from the judicial-selection process. Appeals courts had rebuked and reversed Judge Ryskamp for bringing his personal views on civil rights into his judicial opinions, and he was a member of an allegedly discriminatory private club for 23 years. Yet he received a ''well-qualified'' rating from the ABA.
President Bush has a unique opportunity to mold the federal bench. Last year's Federal Judgeship Act created 85 new seats on top of more than 50 existing vacancies. If history is any guide, those nominees won't be women or minorities or judges sensitive to the concerns of the underrepresented. They are more likely to be like the former Reagan-administration official Richard Goldberg, recently confirmed to his federal court seat, who was once quoted that ''women shouldn't be allowed to go to law school, let alone be appointed to the bench.'' Or like William Shubb, appointed to the Eastern District of California, who cited his wife's work on behalf of the blind as evidence of his own pro-bono commitment to the disadvantaged.
Judges who reflect America's economic, political and social diversity will have as great an impact in the lives of our citizens as any civil-rights and health and safety legislation. Congress can pass all the legislation it wants. But it won't make any difference if the judiciary is unwilling to interpret the legislation as its supporters intended.
The lesson of the Ryskamp nomination is that Congress is willing to stand up as long as public involvement provides a reason to do so. Without continued grass-roots vigilance, history is likely to record the rejection of Judge Ryskamp as an aberration, not as a watershed.
Nan Aron is executive director of the Alliance for Justice, a coalition of law groups.