Aquiet revolution is taking place in the large, nondescript granite block of a building at the corner of Third and Constitution in Washington D.C. In this building, the Federal District Court for the District of Columbia, Judge John Sirica held court over the Watergate conspirators a quarter century ago. This spring, 11 top officials of the Clinton Administration came here to testify before a federal grand jury investigating the Whitewater affair.
But today, 333 Constitution Avenue is also the symbol of a more fundamental change--the deepest and most revolutionary in a generation in the entire federal judicial system. President Bill Clinton is putting his imprimatur on federal courthouses across the nation. It may be his ultimate legacy with implications for businesses of every conceivable size, in every industry. Long after Whitewater fades into history, long after the debates over NAFTA, GATT and health-care have become distant echoes, the men and women chosen as federal judges during this Administration will still be dispensing justice.
The importance of the federal judiciary to businesses continues to grow every year. Each session of Congress removes more items from state and local jurisdiction and turns them over to the federal court system including product and shareholder liability statutes, and privacy laws at home and in the workplace. Moreover, an admittedly activist Justice Department under Janet Reno has committed itself to a more aggressive stance toward violations in a range of areas from environmental enforcement to civil rights in the workplace, anti-trust issues and white-collar crime. "There will be more litigation," says Eleanor Dean Acheson, assistant attorney general for policy development. "Society is changing, business is going off in new directions. There will be a lot of discussion and application of civil rights laws, and the Justice Department will be at least, if not more, activist. The same is true in the civil division, and the anti-trust division."
The importance of the role played by political inclination in the federal judiciary is delineated by Robert A. Carp, who published a landmark study in the journal of the American Judicature Society, a legal research group. Carp examined federal trialcourt and appellate decisions, back to 1933. In the areas of labor and economic regulation, Carp discovered that judges appointed during the Bush Administration ruled against business 48 percent of the time, versus 47 percent by Reagan-appointed judges and 61 percent for those appointed by Jimmy Carter. During the four years of his Administration, George Bush appointed 148 federal district court judges out of the 846 in the federal Office of the Administration of the United States Courts.
Yet when Bill Clinton arrived in the White House, he found 100 vacancies, a figure that quickly rose to 130. Filling these openings not surprisingly has touched off some of the most impassioned rhetoric and powerful soul-searching among conservatives and liberals, Republicans and Democrats alike.
Acheson is the keeper of the flame for the Clinton judiciary. Her office processes and interviews every judicial applicant and passes on every appointee. Her resume would appear to guarantee that only the most impeccable of white-shoe, Eastern establishment nominees would find their way to the federal bench: Granddaughter of Dean Acheson, Secretary of State for Harry Truman, and daughter of United States Attorney David Acheson. Eleanor Acheson herself spent 19 years in the patrician Boston firm of Ropes & Gray, leaving her partnership only to accept this appointment to public office.
We the People
Yet Eldie, as those who work with her call her affectionately, talks a very different story. Her aim is to return the federal judiciary, especially at its most basic trial level--the district courts-- to the people: "This is where most people have their first and often only experience with the federal courts," says Acheson. …