When lawyers are nominated to become federal judges, the debates over their appointments often center on whether politicians who act on their nominations perceive them as having an acceptable political philosophy.
Several of the current eight U.S. district Court judges in Virginia were thought to be conservatives when they were named to the bench. A look at some of their rulings shows that accurate predictions on a prospective judge's philosophy are hard to make.
Judge James C. Turk, a lawyer from Radford and Republican minority leader in the Virginia Senate, in 1974, threw out the state's disorderly conduct law in a Vietnam War protest case in which a defendant used "obscene" language in public. The law had been upheld by the State Supreme Court, but Turk's decision was affirmed by the Fourth Circuit Court of Appeals.
Basically, Turk said the law inbibited the First Amendment right of free speech because it was enforced against language alone, unaccompanied by any physical action, a classically "liberal" position.
He also ruled that a youth who is processed through the juvenile court system for an act may not then be tried for the same act in adult criminal court on grounds of double jeopardy. Again he was upheld.
Turk was overturned by the Court of Appeals when he found the Harrisonburg school's program for letting children out early to attend religious classes was unconstitutional, another ruling most people probably would call liberal.
At the other end of the spectrum, Judge D. Dortch Warriner appears to fit the general description of conservative" in a case brought by the Gay Alliance of Students (GAS) against Virginia COmmonwealth University in Richmond, which had refused to recognize GAS as a student organization.
Warriner wrote, "The Court would posit that the action taken by the Board of Visitors and the grounds therefore reflect the overwhelming sentiment of the citizens of the Commonwealth, who by their taxes have created and maintained Virginia Commonwealth University. To overturn the Board's decision would run counter to the views on homosexuality hold by the citizenry."
"Denial to GAS of the facilities which render the status of recognition meaningful . . . is precisely the type of governmental encroachment which the First Amendment is now construed to protect," Warriner said. He ordered VCU to list GAS in the student directory and give it access to campus facilities and an orientation booth during registration.
He ruled, however, that the college did not have to recognize GAS or allow them to participate in university funding of student organization.
"In our view, the State has not as yet been stripped of its discretion to disapprove, if only by token gesture, of that which it considers injurious to its citizens.
He was overturned by the appeals court and directed to order VCU to grant full recognition to GAS.
One memoer of the appeals panel wrote, "It is of no momment in First Amendment jurisprudence, that ideas advocated by an association may to some or most of us be abhorrent, even sickening. It rings the death knell of a free society . . . It signifies a lack of faith in people.
Judge Albert V. Bryan Jr., who usually sits in Alexandria, also went on the bench with a conservative image, but he has begun to develop a strong "activist" image with his recent rulings.
Perhaps the most important was his ruling that a private school could not deny admission to a qualified student soley on the basis of race. The ruling, upheld by the Supreme Court, was based on a Reconstruction law which forbade race bias in contractual arrangements.
He also overturned the real estate practive of charging fixed settlement fees in house sales, ordered Western Electric Co. to end discriminatory practices and held the director of the D.C. corrections department in contempt for failing to implement rules guaranteeing Lorton inmates' constitutional rights.
Judge Robert R. Merhige, who usually hears cases in Richmond, was warmly praised by each of about 25 lawyers interviewed for these stories on the federal district judges in Virginia, even if they did not agree with his generally liberal, activist philosophy. One lawyer called him "thebest trial judge in Virginia, if not on the East Coast."
Bryan is highly regarded and one civil rights attorney said that he appeared to be moving even faster than Merhige in the areas of civil liberties. The same lawyer rated Turk, of the western Virginia judicial district, as high as Merhige and Bryan, while another attorney called Turk "extremely sharp." Most said it was too early to rate another western district judge, Glen M. Williams.
A Norfolk- area lawyer said Judges J. Calvitt Clarke Jr., Richard B. Kellam and John A. MacKenzie, who practice there, were "well able to handle the cases we get."
"They are all hard-working, cordial, friendly, have good minds and are of unquestioned integrity. I don't think you could come up with a better group, he said.
A civil rights lawyer said Kellam and MacKenzie were "reactionary" in that area of the law and that he didn't yet know where to place Clarke.
Warriner, who holds court in Richmond with Merhige, was the only judge who was consistently criticized by a wide range of lawyers.
One said, "He tries hard and he tries to be fair but his understanding of the law is often weak." A civil rights lawyer said, "He has a preslave mentality," and a middle-of-the-road, establishment lawyer said. "He has a certain lack of humility. He's totalitarian in the court room."
A prominent Richmond lawyer said, "I've heard Warriner to be quite incisive. I don't think he's dumb. It seems like he has to prove himself because the American Bar Association didn't approve him the first time he was mentioned and because he's from a small town (Emphoria, Va.). He just doesn't seem to be comfortable with himself in the court room.
Another lawyer said, "Lawyers down here get together and tell Warriner stories - like war stories. When cases went to judges in the order they were filed. I used to wait in the hall until someone filed and was assigned to Warriner. Then I would run in and file to get Morhige.
"But now they assign the cases by lot. The clerks pull marbles out of a jar. If it's a white marble you get Merhige. If it's a black marble you get Warriner."