In past years, Assistant U.S. Attorney Henry Greene, the respected director of the prosecutor's office at the D.C. Superior Court, might have been a shoo-in to fill a vacancy on the Superior Court bench. After all, White House counsel Lloyd N. Cutler was supporting his nomination to the judgeship.
But when President Carter nominated two lawyers last month to fill two Superior Court judgeships, he picked Ricardo Urbina, an Hispanic law professor at Howard University, and Dorothy Sellers, who has handled women's rights litigation as a private attorney.
One of the reasons Carter bypassed the recommendation of Cutler, who has boasted to friends and associates of his clout in naming judges, is simple: hthe president learned that D.C. Mayor Marion Barry and city Democratic chairman Robert B. Washington favored the nomination of Urbina and Sellers.
Barry and Washington, acting much like senior U.S. senators when they nominate federal judges in their states, have won substantial influence in the selection of Superior Court judges.
Carter's nominations to the D.C. bench are the only state-level judicial appointments he makes in the United States. He may lose that power if Congress votes to transfer that authority to the mayor, and few issues are considered more important to Barry and local officials.
But until such a transfer of authority takes place, the mayor and senior city Democaratic officials, namely Washington, have quietly ensured themselves a behind-the-scenes role in influencing local judicial nominations.
"Two years ago we weren't doing anything," said a senior mayoral aide. "Back then we wondered why (the mayor's office) didn't assert any priority."
The president's impact on the Superior Court has been considerable, local and White House officials agree. Urbina and Sellers are Carter's 16th and 17th appointments to the 44-member bench. As part of his commitment to affirmative action, 11 of this appointments have been women or minority group members. He has also appointed two judges to the D.C. Court of Appeals.
For the moment, the nominations of Urbina, 34, and Sellers, 37, are in limbo.The Senate adjourned for its election recess without acting on their nominations and so the vote on their appointments won't occur until after Congress resumes work in November.
The president's judicial selections have largely been satisfactory to Barry and Washington, the two key officials Carter's advisors consult in the city. Since the initial screening of the judicial candidates is handled by the independent Judicial Nominating Commission, the final list of candidates sent to the president's deck usually includes highly qualified nominees. From that point on, in the event the White House and Barry and Washington do not agree on a nominee, the city's backdoor pipeline to the White House goes into action.
One mayoral adviser calls it an "ongoing discussion." It consists of constant checking and general agreements on judicial appointments based on the understanding that Carter ultimately supports transfer of cotrol of the courts to the city in the spirit of home rule and takes Barry's suggestions seriously.
The Barry-White House link was apparently cemented in early 1979 when the mayor met with Carter and received assurances of a close working relationship. Among other things, control of the city courts was discussed. The principal liaison with the White House was established with Jack H. Watson, then the president's main contact with state and local governments and now the White House chief of staff.
In the most recent case, the Judicial Nominating Commission recommended six possibilities for two vacancies created by Judge Norma H. Johnson's elevation to the federal bench, and Judge Edmond T. Daly's death. By the final stage, Whtie House advisers believed the three most highly qualified individuals for the two seats were Urbina, Sellers and Greene.
Greene, 39, a veteran prosecutor long praised for his legal and administrative abilities, received strong backing from U.S. Attorney Charles F.C. Ruff, other local prosecutors and members of the city's legal establishment.
The mayor's office and Washington, however, favored Urbina because he would be the first Hispanic on the court. And because one of the vacant seats had been filled by a woman and the mayor didn't want to "go back on affirmative action," Barry and Washington indicated their support for Sellers, according to a senior mayoral aide.
Eventually, Carter chose Urbina and Sellers.
The first test of the relationship between the White House and city on judicial nominations occurred in March 1979, when Carter had to fill a D.C. Court of Appeals vacancy created by the retirement of Judge J. Walter Yeagley.
The city's Judicial Nominating Commission sent three names to the White House, including two sitting Superior Court judges, Paul R. Webber III, and William C. Pryor.
According to a White House aide and several city officials, the White House counsel's office -- which usually takes the lead in local judicial nominations -- apparently intended to recommend that Webber be nominated. Pryor was not only opposed by the chiefjudge of the appeals court, Theodore R. Newman Jr., but White House aides believed that Webber had the support of Barry and Washington.
That turned out to be wrong, however. Barry and Washington in fact preferred Pryor.
Believing that the Webber nomination was imminent, one of Barry's senior aides located the mayor and Washington at a District Building reception. A phone call was place to the White House. The city's contacts there were told that Pryor, not Webbr, was the mayor's preference, according to sources. t
"They called and said they were upset about (Webber's impending nomination)," said a White House source. "The problem was, we didn't understand the intensity with which they felt."
The president named Pryor to the bench.
When the mayor's office and the White House each feel strongly about a candidate the other side does not feel strongly about, they sometimes split the difference.
In one instance, Barry and Washington felt strongly that federal magistrate Henry H. Kennedy Jr. should be appointed to the Superior Court bench. Kennedy was finally appointed in 1979 as part of two judge package to fill two vacancies, with the other choice being Frank E. Schwelb, about whom the city officials knew little.
Two other judges the Whte House wanted and about whom the city had not expressed a strong preference were Frederick H. Weisberg and Truman A. Morrison who became the first two lawyers appointed to the Superior Court bench from the local Public Defender Service.
In another instance, the White House also prevailed in a lengthy tug-of-war with city officials over the appointment of a new U.S. attorney Several city officials wanted to appoint Pentagon lawyer Togo West, but the White House named Ruff.
Uncertainty about whether the city's influence on judicial selection will continue into another term, especially if Carter is not reelected, is one reason city officials feel the sooner the power of appointments can be transferred from the president to the mayor, the better.
"Until you get local appointment of judges and local prosecution of offenses," said Herbert O. Reid, the mayor's legal counsel, "a substantial part of home rule is absent."