Dole's litmus test for judges Does he have one? He says he does, but it isn't what you think.

August 22, 1996

BOB DOLE DREW loud cheers and applause when he said in his acceptance speech that he has "a litmus test for judges." For many conservative Republicans, that has become a code phrase for supporting the death penalty and opposing abortion and affirmative action. Is that what candidate Dole meant?

Judicial nominations are an important part of a president's job. But except for Supreme Court justices and, to a lesser extent, court of appeals judges, presidents routinely defer to senators' recommendations when naming men and women to the federal bench. As senator, Mr. Dole recommended enough judges over the decades to give an insight into his judicial philosophy. And in fact, "Dole did not use a litmus test," says Kim Wells, a Kansas City bond lawyer who used to serve as an adviser to Senator Dole on judicial appointments. "He never has. He picks simply on the basis of qualifications. I'd characterize his choices as mainstream."

Another Kansas City attorney who tries a lot of cases in federal court, Lawrence Berkowitz, has said, "[Dole] judges are qualified lawyers who are not ideological at all." Ideological judges of the right and left often get away from what mainstream conservatives (and mainstream liberals) hope for.

How have Senator Dole's recommendations turned out once they got on the bench? A Wichita lawyer and banker who has followed them closely over the years sums them up in two words: "excellent" and "moderate."

But what about as a president on his own? Would Mr. Dole apply the sort of litmus test the conservative wing of his party prefers? It is impossible to predict, of course, but one bit of history in this regard is interesting. When President Ronald Reagan nominated Judge Robert Bork to the Supreme Court, Senator Dole's support was "tepid," according to Ethan Bronner's book about the Senate's defeat of the Bork nomination. Noting Mr. Dole's role in the Senate fight over Judge Bork, Patrick McGuigan, a legal scholar and chief editorial writer for the Daily Oklahoman of Oklahoma City, says, "It is quite possible that under Dole we would get judges who are not really as good conservatives as the Reagan-Bush judges."

Moderate, mainstream, qualified, excellent, non-ideological, a departure from the Reagan-Bush pattern -- that's a litmus test in itself, and a good one.

Pub Date: 8/22/96

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