BEHIND THE BENCH of the District of Columbia's highest court lurks enough conflict to spark a lively citywide controversy. In an unprecedented action and for reasons not altogether clear, four of the eight colleagues of Chief Judge Theodore R. Newman of the D.C. Court of Appeals are openly opposing his renomination to head the court when his term expires this month.
If the split between the judges merely involved personality differences, the public interest might not be great. But because there are ideological differences and because this case is the first of its kind under "home rule," what influences this decision could set the tone for courthouse politics for some time to come.
Two of the four judges who signed the letter to the judicial nomination commission -- Judges John W. Kern III and Frank Q. Nebeker -- were candidates for this top job four years ago. They and the other two critics, Judges George R. Gallagher and Stanley S. Harris, have often disagreed with positions taken by Judge Newman and a more liberal wing of the court. All four have eliminated themselves as candidates this time, suggesting that either Judge William E. Pryor, the newest member of this bench, or Judge Catherine B. Kelly, its most senior judge in terms of service, should be tapped.
Judge Newman's strictly legal abilities do not appear to be a central issue. The letter focuses more on the chief judge's temperament, stating that while disagreements about cases and procedures "are certain to occur," the "proper, courteous and thoughtful handling of these disagreements in a constructive way is essential to achieve open and free discussion and congenial resolution." The four judges also refer to a court "staff morale problem" that they contend requires a chief judge who can be a "consistently calm and steadying influence."
There are no formal guidelines for the seven-member commission to use in deciding whether to pick Judge Newman or one of his colleagues. At this point, the commission is inviting comments from the public. Unless the temperament of a chief judge is such that he cannot command sufficient respect or carry out the administrative duties necessary for the court to function properly, his legal ability should be paramount; and unless there is more damaging evidence than has come to light so far, there is no reason to remove Judge Newman from his position.