D.C. Court of Appeals Chief Judge Theodore R. Newman Jr.'s first choice to be the chief court clerk has turned down the $50,000 post, saying the city's highest court is too bitterly divided for him to work there.
After a lengthy search, Newman offered the job to Robert W. Tobin, a former Justice Department lawyer and the Washington director of the National Center for State Courts -- of which Newman is president-elect.
Tobin rejected the offer, however, saying in an interview that there is still too much friction among the nine judges, who split bitterly last November after four of them tried unsuccessfully to block the reappointment of Newman as chief judge.
"I felt it would be difficult to work there," Tobin said. "I don't know how or if I'm being used by anyone. It didn't strike me as a particularly pleasant environment in which to work."
Tobin's rejection of the clerk's job is the first indication that the stormy battle between Newman and the judges has affected the court's reputation.Members of the D.C. Judicial Nomination Commission, who reappointed Newman chief judge, have repeatedly expressed fear that the court's image might be seriously damaged by the uncharacteristically public feud.
"I just felt bad," Tobin said. "There were very strong differences as to how a court was to be managed. I think perhaps they ought to resolve that first." Tobin said he had been aware of the internal controversy, but not "the extent of it" until late January, when he met with all of the judges for a job interview.
During the meeting, Tobin said, he realized that the differences among Newman and some of the judges as to how the court should be managed remained unresolved. "They are debating it quite a bit. Perhaps they ought to resolve it," Tobin said. "I didn't want to get in the middle."
Newman could not be reached for comment on the choice of a new clerk.
The clerk is the most senior non-judicial officer of the appeals court. The clerk manages the court's two dozen employes, administers its caseload, and has in the past acted in the role of legal advisor to the judges and to lawyers filing cases at the court.
Tobin, 52, has served for three years as the Washington director of the National Center for State Courts, a non-profit organization which provides consulting and support services to state court systems around the country.
Tobin first applied for the post last fall, after Alexander L. Stevas, the former appeals court clerk, left. Stevas is now chief clerk of the U.S. Supreme Court.
The selection of a new clerk apparently was put off until after Newman's redesignation last November.
Four judges -- Frank Q. Nebeker, Stanley S. Harris, John W. Kern III, and George R. Gallagher -- opposed Newman's request to be named chief for a second four-year term.
The dissident judges made an unusual personal appearance before the seven-member group, saying Newman lacked proper judicial temperament and had failed to adequately lead the court.
Newman's supporters painted the issue in philosophical terms, contending that Newman was being opposed by judges who were more conservative on many issues, including the role of the court in the home rule government, and were perturbed to see a black man wielding power as strongly as his predecessors in the post had done.
The commission reappointed Newman, but at the same time scolded him, saying some of his actions as chief had "not been consistent with the spirit of mutual respect or respect for the legitimate rights of his colleagues," which the commission called "a prerequisite to the long-range effectiveness of a multi-judge court." Newman also made an unusual pledge to improve his conduct, to not seek retaliation against the judges who opposed him and to work to "reunify the court."
Under provisions of D.C. law, the Appeals Court clerk is hired by the chief executive officer of the D.C. court system, in this instance, Larry P. Polansky, subject to the chief judge's approval.
There were two finalists -- Tobin and Samuel F. Harahan, director of a D.C. Bar court study committee.
Some of the judges who had opposed Newman last fall indicated that they were not completely satisfied with the candidates, and requested that Polansky or Newman make available to them the names of the rejected candidates, according to sources.
The sources said Newman, who in the past has cited statuatory provisions that leave the hiring of clerk solely to the chief judge and the court administrator, rejected the request.
Nebeker and Kern then called for a meeting of the judges to interview Tobin and Harahan. Before the candidates were brought in, Newman stated that if the meeting was to be considered an official meeting of the judges to interview the applicants, he would declare it out of order, according to informed sources. It was agreed that the meeting would be considered an informal meeting.
Tobin was offered the job after the meeting, but later wrote letters to Newman and Polansky rejecting the post.
The controversy of hiring a new clerk has not been the only battle among the judges since the fight over Newman's redesignation.
The dissident judges wanted to elect one of their own, Harris, to the Joint Committee for Judicial Administration, a five-member committee which oversees operations of the entire D.C. court system.
But the judges voted 4 to 3 against Harris with the present committee member, Catherine B. Kelly, and Harris abstaining.
The vote split precisely along the lines on the which the judges broke last fall -- with the three remaining dissenters, Nebeker, Kern, and Gallagher on the losing side.