02-19-2000

ADMINISTRATION: Clinton's Untilting Federal Bench

Two years ago, the Free Congress Foundation, a conservative activist group
led by Paul Weyrich, produced a fund-raising video lambasting President
Clinton's "superactivist" federal judges. In a letter
accompanying the video, conservative Robert H. Bork, the former federal
court of appeals judge and failed Supreme Court nominee, wrote that
Clinton's judicial appointments had been "drawn almost exclusively
from the ranks of the liberal elite" and had "blazed an activist
trail creating an out-of-control judiciary."


But the video fails to mention that Clinton-appointed judges did not make
the four court rulings it singles out as "tyrannical." In fact,
the video highlights a federal judge who ordered the release of a woman
convicted of murder-but it never points out that President Bush appointed
the judge.


Claims of judicial activism and denunciations of liberal judges have long
been a staple of conservative groups. During the 1996 presidential
campaign, Bob Dole warned that Clinton was promoting "an all-star
team of liberal leniency," and that his re-election "could lock
in liberal judicial activism for the next generation."


With last week's retirement of Judge Robert Maloney, a Reagan appointee,
the federal judiciary now has more judges appointed by Democratic
Presidents than by Republicans. But the allegations of liberal judicial
activism are increasingly difficult to pin on Clinton's
appointees.


Clinton "never recognized this as a symbol of presidential
power," said Nan Aron of the Alliance for Justice, a liberal judicial
monitoring organization. "He didn't fight for some nominees. He
didn't fight for a vision of the courts."


The Administration's scandals and the Republican recapture of Congress in
1994 limited the political capital Clinton could invest to get judges
confirmed. "It was important to them, but it didn't transcend other
important legislative issues for him," explained Abner Mikva, a court
of appeals judge appointed by Jimmy Carter who left the bench in 1994 to
work in the counsel's office at the Clinton White House. "I don't
think he pushed the ideological button as hard as the Reagan and Bush
Administrations did. With Clinton, it was usually, `Can this judge get
confirmed?' "


Rulings by Clinton appointees confirm what legal scholars and political
scientists have been arguing: The President's judges are decidedly
centrist and moderate, largely devoid of any streak of pioneering
liberalism.


"His appointments show a surprising indifference to trying to undo
the sharp tilt to the right of the Reagan and Bush Administrations'
judges," said Herman Schwartz, a professor at American University and
the author of Packing the Court, a history of President Reagan's
conservative appointments to the bench. "His judges have been quite
middle of the road, and I wouldn't call them liberals."


Clinton has, however, literally changed the face of the judiciary through
a calculated effort to appoint a disproportionate number of women and
minorities to the bench. Of the 343 judges he has appointed in the past
seven years-roughly 40 percent of the federal judiciary-100 of his
appointments have been women (Reagan selected 31) and 57 have been
African-Americans (Reagan selected seven). After seven years, Clinton has
appointed nearly half the total number of women and African-Americans on
the federal bench. While 8 percent of Reagan's judges were women or
minorities, more than half of Clinton's appointments have been. Clinton
appointed the first open homosexual to the court as well.


Professor Robert Carp, an expert in constitutional law and judicial
process at the University of Houston, analyzed more than 60,000 court
opinions from federal trial court judges and characterized each ruling as
liberal or conservative. According to Carp's analysis, accusations that
Clinton appointed liberal activists are untrue.


"It's just not so," Carp says. "The charges are made, and
people who want to believe them will, but just simply counting Clinton's
judges' opinions, they're way, way down from earlier eras of liberal
activism from the `60s and `70s."


For example, Carp compared rulings by Clinton's judges in criminal justice
cases with rulings made by judges appointed by Carter, Reagan, and Bush.
For judges appointed by Clinton, Carp found that 34 percent of the
opinions were classified as liberal, slightly higher than the 29 percent
of liberal judicial opinions by Bush's judges, but less than the 38
percent of liberal rulings by Carter's judges.


"Like his generally tough-on-crime approach he's taken in terms of
legislation, Clinton's judges have also taken some more-conservative
positions on criminal defendants," said Sheldon Goldman, an expert on
the politics of judicial appointments at the University of Massachusetts
(Amherst).


Indeed, in a critical case last year, all four of Clinton's appointments
to the 10th U.S. Circuit Court of Appeals in Denver sided with the
more-conservative judges appointed by Reagan and Bush. The judges ruled
that it is not "bribery" under a federal statute for prosecutors
to offer witnesses leniency in exchange for their testimony. Reagan and
Bush appointed two of the dissenting judges.


"There's certainly been a disturbing trend in the erosion and
reduction of the rights of criminal defendants," complained Steven
Rheinhardt, an outspoken liberal on the 9th U.S. Circuit Court of Appeals
who was appointed by Carter. "It's one of the greatest
disappointments of Clinton's presidency that the judiciary was not one of
his concerns."


A somewhat similar pattern emerged in civil rights and civil liberties
cases. Carp found that in cases dealing with such issues as affirmative
action, prisoner rights, freedom of speech and religion, and the
separation of church and state, Clinton's judges were distinctly more
conservative than Carter's. He classified only 39 percent of the civil
rights rulings by Clinton's judges as liberal, compared with 52 percent of
the rulings by Carter's judges and 33 percent for both Reagan's and Bush's
judges.


"I don't think you can detect any change [from Reagan's and Bush's
judges] in the vastly more conservative approach on the judicial bench
from criminal justice to affirmative action to church/state issues,"
said Bruce Fein, a conservative columnist and former assistant attorney
general who worked on judicial selection during the Reagan
Administration.


Critics of the President's judges nevertheless continue to rail against
their purported activism. "By and large, most of them are reasonable
on most issues, but on the hot-button constitutional issues of the day, I
think the Clinton judges are quite predictable that they will rule with a
liberal political worldview," argued Todd Gaziano, a senior fellow
for legal studies at the Heritage Foundation. "Many are still taking
a creative and expansive view of the establishment clause, for example,
requiring the government to be hostile toward religion."


Gaziano pointed to a recent controversial ruling by the 3rd U.S. Circuit
Court of Appeals that inflamed religious conservatives around the country.
A panel of judges in October sided with a public grade school after it
refused to allow a 6-year-old student to select a story from the Bible to
read to his classmates. The teacher had rewarded the students for their
reading skills by allowing them to read a story of their choice to their
classmates, but would not let the boy choose a Bible story because of its
religious content.


Although the ruling may reflect a liberal interpretation of the First
Amendment's separation of church and state, it should be noted that of the
four judges who ruled in the case, three were appointed by Reagan and the
other by Bush.


On the divisive issue of religion in the public schools, Clinton's judges
are slightly more liberal than judges appointed by Reagan and Bush.
Clinton's judicial appointments rarely permit religion in public school
settings, but that doesn't always put them at odds with the Reagan and
Bush judges. In a ruling that was appealed to the Supreme Court, two
Clinton appointees joined a Reagan judge in striking down a 32-year-old
law providing federal block grants for library equipment, computers, and
instructional aids for parochial schools.


In another case currently before the Supreme Court, one of Clinton's
lower-court judges teamed with a Bush judge last year to strike down a
public school policy allowing high school students to say a religious
benediction before graduation. Likewise, a 9-4 decision out of New Jersey
rejected a public high school policy allowing student-led prayer at a
graduation ceremony. Clinton appointed two of the judges in the majority;
five were Reagan appointees, and Bush and Carter appointed one
each.


The Heritage Foundation's Gaziano draws a sharper distinction: "My
sense is that it's far more endemic with Clinton appointees than Reagan's
or Bush's," he said of cases where religion in some form was not
allowed in schools. On strictly constitutional issues, Clinton's judges
are indeed more apt to find problems in cases involving religion and
public schools than are judges appointed by Republican Presidents.
Conservatives point to the decision in November by federal district court
Judge Solomon Oliver Jr.-a Clinton appointee-that struck down as
unconstitutional Cleveland's school voucher program. The program allowed
students to use public tax money to attend religious schools.



Clinton's judges, though, are far from crusading zealots who find new
"rights" buried within the text of the Constitution. Consider,
for example, the issue of physician-assisted suicide. In 1996, the Supreme
Court reversed two court of appeals decisions that held that the
Constitution granted a right to physician-assisted suicide. Both of
Clinton's nominees to the Supreme Court-Ruth Bader Ginsburg and Stephen
Breyer-joined the Court in unanimously reversing the two lower-court
decisions that had declared such a right existed.



In fact, those judges on the lower courts who "found" such a
right were largely Carter appointees, along with a few Reagan judges.
Clinton appointed only one of the 11 judges in the lower courts who found
a constitutional right to physician-assisted suicide-Guido Calebresi of
the 2nd U.S. Circuit Court of Appeals.


"You'll find some [liberal decisions] by Clinton judges,"
concedes Professor Carp. "But the number of cases are really isolated
and very, very small comparatively."


Even some conservative commentators agree. "I think his appointments
have been as centrist as can be," Fein says. "These are not wild
pioneering judges; they're not Lani Guiniers on the bench trying to use
the federal courts to launch their agendas through
jurisprudence."


In the area of abortion law, Clinton's appointments have been reliably
faithful to the abortion-rights constituencies of the Democratic Party,
and have invariably struck down laws banning partial-birth abortion as
unconstitutional under Roe vs. Wade.


But at the same time, Clinton's judges are not trailblazers on this issue:
In the 20 federal cases weighing the constitutionality of partial-birth
abortion bans, six Reagan appointees and six Bush appointees have found
such laws unconstitutional, and four judges chosen by Clinton struck down
the bans.


While no Clinton appointee has ever upheld a partial-birth abortion ban,
seven judges appointed by Reagan and Bush have found such laws
constitutional, including an all-Reagan panel of judges from Chicago that
ruled such bans are constitutional.


Conservatives also cite some of the few court rulings on affirmative
action as signs of judicial activism in the courts. One of Clinton's
judges on the 1st U.S. Circuit Court of Appeals voted against two Reagan
and Bush appointees in 1998 who ruled that diversity was not a
sufficiently compelling justification to employ race and gender
preferences for admission to the prestigious Boston Latin public
school.


Yet even in affirmative action cases, some Clinton judges have,
surprisingly, decided to strike down preferences for minorities. In two
separate cases last year in the 4th U.S. Circuit Court of Appeals-the most
conservative court in the nation-two of Clinton's appointees joined Reagan
and Bush judges to end minority preferences at an alternative kindergarten
in Arlington, Va., and in Montgomery County, Md., schools.


Some critics, however, urge looking beyond such isolated decisions.
"Sure, there are exceptions, but if you look at the landscape as a
whole, they tend to be judicially active. Plus, Clinton's appointments at
the circuit courts don't have a majority yet," countered Alex Acosta,
a conservative legal activist with the Ethics and Public Policy Center.
"Once they get in the majority, then what happens?" Acosta
warned. "There is often a lag before you are able to exert your
philosophy. They just haven't had enough of an opportunity to assert
themselves."


Most observers would concede that a number of Clinton's judicial
appointments are more liberal than centrist, including Rosemary Barkett, a
former nun and Florida Supreme Court Justice who is now on the 11th U.S.
Circuit Court of Appeals; David Tatel on the District of Columbia Circuit
Court of Appeals; and Richard Paez at the district court in Los
Angeles.


In the collective afterglow of Clinton's election in 1992, liberals were
energized at the prospect of reshaping the ideology of the courts after a
12-year drought of Reagan and Bush appointees. But many are now dismayed.
"Liberal groups are angry at Clinton for not fighting to put more
liberals on the bench to fight the perceived imbalance after the Reagan
and Bush years," said Sheldon Goldman, who wrote a history of picking
federal judges. "The vast majority are mainstream moderates, tending
toward the restraint side."


A look at some numbers lends credence to this view. Clinton set a record
for selecting a relatively high percentage of his nominees from large law
firms-four times as many as Carter, and more than Reagan. In fact, nearly
40 percent of Clinton's appointees are millionaires. "He got an
inordinate number [of his judges] from some of the top law firms in the
country," Carp explained. "You cannot be a radical or too
liberal at these big firms."


Unlike Carter, Clinton's list of appointments is noticeably short on
attorneys with public-interest law or academic backgrounds-prime real
estate for mining liberal-leaning judges. Clinton also elevated six judges
to courts of appeals who had been appointed by Reagan or Bush. In
contrast, neither Reagan nor Bush elevated a Democratic-appointed
judge.


Clinton has set a modern record for the high quality of his judges. The
American Bar Association rated 60 percent of his appointments as
"well qualified"-the highest rating available-compared with 52
percent of Bush's judges and 53 percent of Reagan's.


Conservatives anxious over Clinton's final-year opportunity to appoint
dozens of additional judges to the bench are getting little traction on
allegations of activist, liberal judges run amok. "Orrin Hatch ran a
feeble presidential campaign largely on the basis that he knew how to
appoint judges," notes Fein. "But it just doesn't resonate with
the public, in part because they don't have the horror stories to
tell."


David Byrd

National Journal