Appellate bench has key vacancy

CLINTON COURT PICK TO SET TONE

November 28, 1992|By Lyle Denniston | Lyle Denniston,WASHINGTON BUREAU/STAFF GRAPHICWashington Bureau

WASHINGTON -- To get an idea what change will begin t look like once President-elect Bill Clinton is in the White House, the nation will see few gestures more revealing than his choice for a single vacancy on a federal court.

Right away, on Jan. 21, Mr. Clinton will be able to name 102 nominees to the U.S. courts, but none is likely to be more symbolic than the man or woman he picks to take the seat most recently held by Clarence Thomas and, before that, by Robert H. Bork.

That is a seat on the U.S. Circuit Court of Appeals here. Mr. Bork, one of the nation's best-known conservative judges, resigned from the seat in frustration and anger after the Senate refused to approve his promotion to the Supreme Court.

Mr. Thomas, now one of the nation's most prominent conservative judges, took the appeals court seat next, but vacated it after about 18 months when the Senate approved him last year to sit on the Supreme Court.

"That is a very important vacancy," says George Kassouf, who monitors federal judgeship selections for the liberal advocacy group, Alliance for Justice. "There will be a nominee who will be the Bill Clinton contrast to Clarence Thomas and Robert Bork."

If the president-elect "is seeking reform on a massive scale, dealing with economics and health care, he is going to find an obstacle in the federal judiciary, stacked with 12 years of conservative judicial appointees," Mr. Kassouf contended.

Among others watching the selection for the "Bork-Thomas seat" to detect the new symbolism will be Thomas L. Jipping, director of the Center for Law and Democracy at the conservative Free Congress Foundation. After supporting almost all of the judicial nominees named by President Bush, and after years of watching contentedly the work of most of the judges chosen by former President Reagan, Mr. Jipping is now switching into "the opposition" with a Democrat in the White House.

An activist who is said to remain personally close to Justice Thomas, Mr. Jipping says: "I don't expect to see nominees [by Mr. Clinton] who will make me extremely pleased. We will not allow the clock to be turned back to an age of rampant judicial activism without a fight." He said that "the far left desperately wants" to "hijack" the Clinton judicial selections, and he said it "remains to be seen" whether that will happen.

If Mr. Clinton's choices for the 102 vacant judicial seats are likely to start making a distinctive change in the way U.S. laws are interpreted, the most significant impact is likely to come on the federal appeals courts.

For one thing, he is not likely to get many nominees to the Supreme Court. It is now speculated that, at most, he would get to name no more than two or three justices over the next four years. The court is clearly dominated by six conservatives put in their present seats by Mr. Reagan or Mr. Bush and none of whom is likely to retire.

But there is another reason: The appeals courts are the layer of federal courts having the most to do with developing new approaches to the law. The appeals courts focus only on the law as they review trial court decisions, and few of their rulings ever get reviewed by the Supreme Court.

But it will take the new president years to turn around those appeals courts from the dominance of the Reagan-Bush judges. Of the 13 separate appeals courts, 11 now have majorities of judges named by those two Republican presidents. On the other two, the Reagan-Bush judges have more seats than any grouping of nominees of any other president, but do not yet have majorities.

One of those other two is the 4th U.S. Circuit Court of Appeals, the Richmond-based court that decides appeals from federal trial courts in Maryland and other mid-Atlantic states. That 15-judge court now has two vacancies for Mr. Clinton to fill.

Conservatives lost one of their favorites for a federal judgeship .. when time ran out on Mr. Bush's nominee for a seat on the Richmond court: Virginia law professor Lillian BeVier, a supporter dTC of Mr. Bork's Supreme Court nomination and an activist in the deeply conservative Federalist Society.

Ms. BeVier's nomination was one of 53 made by Mr. Bush that expired when the Democratic-controlled Senate refused to act on them this year. Among the others passed over by the Senate was Mr. Bush's choice for the "Bork-Thomas seat" on the appeals court here: Deputy U.S. Solicitor General John Roberts Jr., a top-level official in the conservative-led Justice Department.

Mr. Clinton will also be able to name three federal District Court judges for the Baltimore-based trial court for Maryland. Judges Alexander Harvey, Joseph Howard and Norman Ramsey have moved up to part-time "senior" status.

PORTRAIT OF THE JUDGES

Two out of every three judges now sitting on the federal courts -- from the Supreme Court on down -- were named by Presidents Reagan and Bush. The U.S. courts are now dominated by white men. Here is the judges' portrait:

OVERALL:

Seats

837 Seats existing

102 Now vacant

Race

650 Whites

44 Black

35 Hispanic-Americans

06 Asian-Americans

Sex

644 Men

91 Women

Supreme Court:

Nine seats, no vacancies. Chosen by Reagan and Bush: five named, a sixth elevated to chief justice.

Pay (after Jan. 1 raise): Chief justice, $171,500; associate justices $164,100.

Appeals Courts:

179 seats, but 16 now vacant. Chosen by Reagan and Bush: 111 of the still - sitting judges. Pay (after Jan. 1): $133, 600.

President Clinton's opportunities: 100 seats on regular courts now open for nomination, two on special nine-judge trade court, four or five seats become newly vacant each month. 250 vacancies likely over next fours years.

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