The Reagan administration's plan to deemphasize affirmative action in the selection of District of Columbia judges has left the city's judicial nominations agency with the primary responsibility for ensuring that more women and blacks are named as judges in local courts.
For four years under the Carter administration, city leaders got their wishes on many judicial appointments and as a result 10 of the 17 judges President Carter named to the local bench were women or blacks. tThis was largely because the Carter administration had no unique interest in making its own selections for city courts and often acceded to local officials' preferences on nominees proposed by the D.C. Judicial Nomination Commission. By law, the White House must make its selections from the list submitted by the commission.
But the Reagan administration has set its own criteria, deemphasizing affirmative action, and saying instead that "competence" will be a major factor, according to White House Counsel Fred Fielding.
"We are not going to make the decisions based exclusively on factors other than competence," said Fielding, who picks D.C. judges for the new president. "The most important thing is the quality of the bench -- judicial temperament and competency."
While neither the Carter White House nor the Reagan administration would ever admit to picking anyone other than competent judges city officials felt the Carter officials gave equal weight to affirmative action and legal qualifications.
The Reagan administration's statements have had some ambiguity, but the direction is clear.
"If that means what I think it means," said Herbert O. Reid, Mayor Marion Barry's legal adviser and former dean of the Howard University Law School, "that beyond qualifications, affirmative action will not be a consideration, that's tragic. I hope it does not represent the thoughtful, concerned view of President Reagan." Reid said he was not speaking for the mayor.
Despite the fact that President Reagan has named the first Hispanic to the D.C. Superior Court, several city officials say they fear that the emphasis on what the White House perceives as competence, combined with an anticrime position, could translate into an attempt to undercut sharply the current exclusive authority of the nominations commission to recruit and recommend judicial nominees to the president, fill the local bench with more former prosecutors and set back affirmative action.
Nonetheless, several city officials have been talking to White House officials about future appointments and the criteria that the nomination commission uses in picking the names of nominees to send to the White House. These officials are hoping that their influence over the only state-level judicial appointments a president makes will not be diminished.
They also wonder whether Reagan, in giving U.S. senators a greater role in choosing federal judges, will do the same for D.C. by giving local officials a greater role. If not, Reid says, "the only reason that will be perceived is a distinction made on the basis of race." o
In the immediate future, Reagan will have a chance to make four more appointments to the D.C. bench, filling three positions on the Superior Court and one on the D.C. Court of Appeals, which could tip the ideological balance on the city's highest court. The District's old-line legal establishment also will be carefully watching Reagan's appointments, hoping he will "upgrade" the bench with more prestigious appointments. Lawyers in this group viewed Carter's defense to Barry and party officials as a highly politicized process that excluded them.
Carter followed the city's recommendation on judges because "we felt this should have been a local decision in the first place," said James W. Dyke, a Carter White House aide for District issues. Although there was sometimes disagreement, such as on the choice of a new U.S. attorney, Dyke said, "We tried to best reflect . . . what the locl people wanted."
Before Reagan made his first two Superior Court appointments -- Henry F. Greene, a veteran prosecutor, and Ricardo Urbina, a Howard University law professor and the first Hispanic -- his aides consulted with Barry, Del. Walter E. Fauntroy and other local officials. Reagan officials left the impression that "cooperation" was favored, according to one city source, but "they kind of indicated it would be more of a 'presidential' decision. [In the past] we almost had the last word. That may take some time to develop."
The city agency that could arbitrate this is the Nomination Commission, a little-known, locally controlled group that recruits and recommends to the president three candidates for eacy judicial vacancy.
The commission was established in 1974 under the Home Rule Charter to enhance the selection of judges based on merit and increase local participation in the process. The choices mostly have been lauded. The commission, a majority of whose memembers were appointed by politicians and a majority of whose members are black, so far has weathered some criticism that it is too "political" and subject to interest-group pressure. One commission critic recently complained: "If the question of merit ever comes up . . . it's the last question that's ever addressed."
Last fall, the commission was engulfed in controversy over redesignating Theodore R. Newman Jr. as Chief Judge of the D.C. Court of Appeals in the face of heated protest from four of his colleagues.
But commission supporters contend such attacks originate from a group of disgruntled, mostly white, conservative lawyers who feel they have been excluded from the local judicial selection process.
The new administration has openly urged prominent lawyers to submit their names, but its contribution is limited. Because the commission controls which names get sent to the president, Reagan still must establish some informal link with the group, since the one presidential appointment on the commission was filled by Carter and serves for five years.
Fielding, a deputy to John Dean in the Nixon administration, recently met with commission chairman Frederick B. Abramson about the criteria the commission uses to recruit and select judges. But the true test of the relationship will be the filling of the four remaining court vacancies, particularly the one created by the retirement of Judge George R. Gallagher on the ever-tumultuous Court of Appeals.
In recent years, the nine-judge court has been divided philosophically on such issues as criminal law and interpreting the home rule powers of the District government. Under former president Nixon, it was a more conservative court led by a former prosecutor, Frank Q. Nebeker. By the time Carter left office, the court was leaning in the direction of the liberal Republican chief judge, Theodore R. Newman Jr. -- the highest-ranking black state-level judge in the country. Reagan's replacement for Gallagher -- a centrist judge -- could tip the court in either direction.
The vacancy also is pivotal because Gallagher was one of the so-called "gang of four" judges led by Nebeker who tried to block Newman's reappointment as chief judge of the court. Some believe that the commission will recommend candidates to Reagan who tend to follow Newman's ideological positions. Supporters of Nebeker note that ultimately he may hold the trump card with his connections to the White House counsel's office.
About 20 years ago, Nebeker, then a high-ranking official in the U.S. Attorney's office, hired Donald Santarelli as an assistant prosecutor. Santarelli eventually rose to become an associate deputy attorney general in the Nixon administration and he was responsible for choosing D.C. judges for the president. One of the first judges Santarelli got named to the appeals court was Nebeker, his old boss. About the same time, Santarelli hired Richard A. Hauser, a young conservative lawyer, to work for him.
Hauser now is White House Counsel Fielding's assistant. Together, the two choose District of Columbia judges for Ronald Reagan.