Judging Carter's Judges

Merit--along party lines

Why not the best? Nowhere was the theme of Candidate Jimmy Carter's autobiography more explicit than in his campaign promises on the administration of justice. Said he: "All federal judges and prosecutors should be appointed strictly on the basis of merit, without any consideration of political aspects or influence." But, lo and behold, merit has turned up, as it so often does in politics, apportioned according to party lines.

The presidential nominations to date:

U.S. circuit courts--ten Democrats, no Republicans;

U.S. district courts--21 Democrats, no Republicans;

U.S. attorneys--55 Democrats, one Republican.

Faced with political realities, Carter backed away from a plan to have independent citizen panels nominate federal trial judges and prosecutors. One result in New Jersey and Michigan: two superb Republican U.S. attorneys who refused to resign were unceremoniously forced out of office. The choice of U.S. attorneys and district judges has long been controlled by U.S. Senators and state politics. But U.S. circuit courts usually cover several states, and appointments to them have less often been the absolute preserve of a Senator or Representative. So when Carter set up 13 panels around the country to pick appellate judges, the move to reward merit seemed likely to succeed.

The Administration has indeed selected from among each panel's nominees. The ten appellate court judges thus far chosen are all Democratic, liberal or moderate politically, and well qualified for the bench. But in at least four cases, political connections eased the way, and four other appointments promoted district judges previously named under predominantly political sponsorship. For example, Robert Vance, nominee for the Fifth Circuit, is the longtime Alabama Democratic Party chairman; Tennessee's Gilbert Merritt had contributed to Democratic Senator James Sasser's 1976 campaign (as had Merritt's two minor children); Thomas Tang of Arizona has close ties to Democratic Senator Dennis DeConcini. Yet even Republicans acknowledge that the nominees have good credentials, and the four trial court judges being moved up--Damon Keith of Michigan, Leon Higgenbotham of Pennsylvania, Hugh Henry Bownes of New Hampshire and Alvin Rubin of Louisiana --are men of qualily.

But the procedure suffered an embarrassment in September when Carter announced the nomination of Monroe McKay, 49, a Brigham Young University law professor, for a Utah-allotted vacancy on the Tenth Circuit Court. McKay's brother is Representative Gunn McKay, a Democrat close to House Speaker Tip O'Neill. The nominating panel had McKay on its list, but a poll of the Utah State Bar Commission had ranked Salt Lake City Attorney David Watkiss al the top. Utah's two Republican Senators even congratulated Watkiss. Then Representative McKay approached O'Neill, who approached Carter. This week McKay's nomination for the judgeship was to be confirmed by the Senate. Said a rueful While House adviser: "If politics is going to rule in the end, we're probably making more enemies than if we let it rule from the start."

The slip back toward politics as usual has raised no cries of alarm, because even the bad old system managed to produce a federal judiciary of a generally high quality. Many of the U.S.'s most respected jurists, including every Chief Justice but Harlan Slone, were political activists before taking the bench. But the Democratic Congress is now completing action on a bill to expand the federal judiciary by one-third, adding 113 new district and 35 new appellate judgeships. The bill has been delayed for years, awaking a Democratic President, and legislators are rubbing their hands in anticipation of the patronage to come.

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