Carter's "Merit"

Bending a campaign promise

"All federal judges and prosecutors should be appointed strictly on the basis of merit without any consideration of political aspects or influence."

Had Jimmy Carter not made that statement during his campaign, a quarter of the 20 questions at his press conference last week would probably not have been about the removal of a Republican U.S. Attorney in Philadelphia. But once again, the President was hoist on his own piety.

The Philadelphia Attorney, David W. Marston, 35, is a Tennessee-born Ford Administration appointee who during 18 months in Pennsylvania has both shown a talent for public relations and built himself a generally deserved reputation as a dogged attacker of misdeeds in high places--which in the Keystone State are mostly occupied by Democrats. Earlier this month, word seeped out that Carter's Justice Department, having done nothing about replacing Republican Marston for a year, had formed a blue-ribbon panel of Philadelphia lawyers to recommend a replacement. The ensuing ruckus in Philadelphia raised questions at Carter's press conference.

Carter handled the Marston queries poorly. At first he said he had known nothing about Marston until he heard that Attorney General Griffin Bell was going to replace him. Then, under sharp probing from reporters, Carter conceded that he had telephoned Bell and asked him to "expedite" Marston's ouster after Pennsylvania Democratic Congressman Joshua Eilberg requested him to "look into" the Philadelphia situation. It was an uncomfortable admission to say the least: although Carter denied being aware of it, Eilberg has been implicated in a Marston investigation into financial irregularities in the construction of a Philadelphia hospital. While smilingly ignoring questions on why Marston was being dumped, Carter insisted that the choice of his replacement would be made "on merit and not politics."

Griffin Bell was more forthright. Said he: "We have two parties in this country. The In party right now happens to be the Democrats. There are a lot of complaints about Mr. Marston. They say we ought to have a Democrat as U.S. Attorney in Philadelphia."

Bell says that he decided early on that Marston, who had been an aide to Republican Senator Richard Schweiker with no prosecutorial experience to speak of, should be replaced. But lawyer friends of Bell in Philadelphia argued that he should be retained for a year since he had some major corruption investigations under way and his removal would smack of an attempt to take the heat off errant Democratic officeholders. In short, the timing was all wrong.

Now the timing is even worse. Marston has endeared himself to Philadelphians by being the first prosecutor in recent years to hit political corruption hard. In May, Marston got the state speaker of the house, Herbert Fineman. convicted of obstruction of justice in a case involving influence peddling to help students gain admission to medical schools. Just last month the most powerful member of the state senate, Philadelphia Democrat Henry J. Cianfrani. pleaded guilty to 106 counts on various charges--including obstruction of justice, tax evasion and mail fraud--involving efforts to place his girlfriend and others in no-show jobs on the senate appropriations committee.

The Marston flap inevitably raised questions of how nonpolitical Carter has been in dealing with all of the 94 U.S. Attorney jobs in the U.S. The Carter/Bell innovation of using panels of respected local lawyers to nominate new U.S. Attorneys is some improvement on the old system. But thus far, only one of the 65 federal prosecutors appointed by Carter has been a Republican. While the new officials have generally been of high caliber, it would appear that only those who are both well qualified and Democrats need apply.

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