Keeping the Covenant on the Federal Courts

By Carl Tobias. Carl Tobias, a. professor of law University of Montana, frequently writes on judicial selection. | The Christian Science Monitor, February 14, 1994 | Go to article overview

Keeping the Covenant on the Federal Courts


Carl Tobias. Carl Tobias, a. professor of law University of Montana, frequently writes on judicial selection., The Christian Science Monitor


OBSERVERS of American politics, from Jerry Brown to Ross Perot, have criticized President Clinton for breaking many promises. However, Federal judicial selection is one critical area in which the chief executive has clearly honored his commitments.

In discharging the constitutional duty to appoint judges, the administration has carefully implemented a new covenant with the American people by increasing gender, racial, and political balance on the federal bench.

When Mr. Clinton was campaigning, he contended that the court appointments of Presidents Reagan and Bush significantly reduced the diversity that President Carter had strongly promoted. Candidate Clinton pledged to rectify that situation. Since the election, he has fulfilled his promise by naming outstanding judges who reflect society's diverse composition. As the president begins his second year in office, his administration's record of choosing judges should be evaluated to ascertain how he has kept his covenant.

Clinton appointed and nominated unprecedented numbers and percentages of women and minorities, although the Senate has yet to confirm two-fifths of his nominees. He named 11 women out of 28 judges (39 percent) and seven minorities out of 28 judges (25 percent). He nominated 18 female lawyers out of 48 (37 percent) and 13 minority attorneys out of 48 (27 percent). These figures eclipse Mr. Reagan's record and substantially surpass those of Mr. Bush and Mr. Carter.

All of Clinton's appointees and nominees apparently have excellent qualifications. They seem to be highly intelligent, industrious, quite independent, and to possess great integrity. Quite a few have earned respect for their effective performance as federal or state court judges.

United States Supreme Court Justice Ruth Bader Ginsburg is illustrative. Her litigation of landmark women's rights cases prompted some observers to analogize her career to that of Justice Thurgood Marshall. For 13 years she served with distinction on the DC Circuit, the country's second most important court. Professor Ginsburg enjoyed a reputation as a clear thinker and a consensus-builder on a very contentious court, which decides many cases involving complex issues of science, economics, and public policy that affect millions of Americans.

Clinton also elevated to the Second Circuit Pierre Leval, who was widely acclaimed as one of the preeminent federal district judges. Moreover, he appointed to the Sixth Circuit Justice Martha Daughtrey, a highly-regarded member of the Tennessee state bench for over a decade.

The administration has implemented efficacious selection processes and instituted special efforts to find and nominate excellent women and minorities. Moreover, the president and high-ranking personnel have proclaimed that the appointment of distinguished, diverse judges is a top administration priority, specifically urging senators to forward the names of female and minority attorneys for nomination.

Clinton's success is even more striking given the obstacles he faced. Lengthy Republican control of the executive branch meant that the administration lacked individuals with applicable governing experience.

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