Why Not the Worst? the Reagan Judges

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WHY NOT THE WORST?

The Reagan Judges

"Why not the worst?' That seems to be this Administration's motto, at least as far as some of its recent nominations to the Federal judiciary are concerned.

Daniel Manion, whom the Senate Judiciary Committee rejected for a seat on the United States Court of Appeals in Chicago on May 8, is just one example. Manion is clearly unqualified to serve on a court that ranks just below the Supreme Court in the judicial structure. He has handled almost no litigation of any complexity, shows no intellectual distinction, has written no scholarly or any other articles and in his briefs displays an embarrassing awkwardness in using the language, a serious handicap for an appeals judge, who spends most of the time writing opinions. The Chicago Council of Lawyers found him unqualified.

Manion's inadequacies go beyond legal ability. Both in prior statements and at his confirmation hearing he made clear his hostility to judicial protection for constitutional rights, the most important obligation he would have as appellate court judge. He has opposed applying the Bill of Rights to state and local officials, advocated stripping the Supreme Court of jurisdiction to enforce constitutional rights and praised the John Birch Society for "being on the front line of the fight for constitutional freedom.' He also called a book by Birch Society spokesman Representative Larry McDonald, which attacked Brown v. Board of Education, "one of the finest summaries of the history of our country--what has happened in the past, what has happened to us and what we have to do about it.' And while in the Indiana Legislature he co-sponsored a bill to authorize posting the Ten Commandments in classrooms, even though he knew the Supreme Court had struck down an almost identical statute a few months earlier.

Although Manion failed to get a committee majority, which would ordinarily kill a nomination, Republican Senator Arlen Specter of Pennsylvania and Democrat Dennis DeConcini of Arizona, both of whom had voted against the nomination, agreed to report it to the full Senate without recommendation. It will probably be voted on this month, and the count is likely to be very close.

Manion is not unique. Since January 1985 half the Reagan nominees for appellate court posts have received a "qualified' approval rating, the lowest one, by the not-overly-demanding American Bar Association's Standing Committee on the Federal Judiciary. Of those, 71 percent were found "unqualified' by a minority of the committee. During the Carter Administration, only 5.1 percent of the candidates received such a mixed evaluation.

Consider also the following judicial nominees:

Eric Bruggink, who tried to exclude from Alabama public schools literary anthologies that used the terms "God,' "Almighty God,' "Oh, God,' "My God,' "hell,' "damn,' "What in God's name do they want from me?' and "for godsake.' He also tried to ban Henrik Ibsen's A Doll's House and Virginia Woolf's A Room of One's Own as expressions of "radical feminism,' and an essay by Marian Anderson which he said was "bitter about racial prejudice.'

Jefferson B. Sessions, who called the National Association for the Advancement of Colored People and the National Council of Churches "un-American' and "Communist-inspired' organizations that were "trying to force civil rights down the throats of people.' Sessions once said he thought the Ku Klux Klan was "O.K. until I learned they smoke pot.'

Lino Graglia, a law professor, who told a Texas community it was "under no obligation' to obey Federal court busing orders, who argued that white parents should be allowed to evade Federal court orders by sham custody arrangements, who referred to black children as "pickaninnies' and who condemned judicially created constitutional safeguards for individual rights as "just bad ideas.' Even the A.B.A. …