With the recent resignation of Judge Robert Bork, President Reagan has the opportunity for the ninth time since his election to appoint a judge to the 12-member U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the country. With no senators to look out for their interests, citizens of the District can assume that the president will, as he has in the past, appoint a white male with few or no ties to the District. It is time to put a stop to this practice of appointing outsiders who are unrepresentative of this city and its courts.
Will the senators from the neighboring states of Maryland and Virginia come to the aid of the District? Will the members of the Senate Judiciary Committee -- who gave such cursory review to the previous eight Reagan nominees that they must share responsibility for the disregard of the local bar -- take a more active role in the process this time? Will those senators, who rely heavily on recommendations from their state and local bar associations for judicial appointments, reject the president's nominee for the D.C. Circuit unless the president seeks the advice and has the support of the bar associations in the District? Will the Senate insist that a process of formal consultation with the organized bar be institutionalized here, as it has been in many states? Will anyone stand up for the citizens and lawyers of the District to urge the appointment of a local lawyer and the particular consideration this time of women and minorities?
If history repeats itself, the answer to all of these questions will be no.
In recent testimony before the Senate Judiciary Committee, Assistant Attorney General Stephen Markman made clear that the administration believes it has no special obligation to seek out qualified women and minority candidates in a city that is 70 percent black and has the largest number of women and minority lawyers in the country, and that it is unwilling to involve the bar associations of the District, whose interests Markman describes as "parochial."
While every president since Franklin Roosevelt has ignored Washington lawyers (now 45,000 strong) for consideration for the D.C. Circuit, the unusually large number of vacancies during the Reagan administration has focused even more attention on this practice. The bar associations of the District have complained that local lawyers, women and minorities have been ignored when it comes to appointments to the D.C. Circuit. But neither the administration nor, until recently, the Senate Judiciary Committee has demonstrated any real interest or concern.
The argument that allegedly justifies looking elsewhere for qualified candidates, reiterated by Markman, is that the D.C. Circuit is a "national court" and therefore needs lawyers from all over the country in its ranks. But that fact only serves to strengthen, not diminish, the argument that nominees from the District should be considered. The D.C. Bar is the most truly national bar in the country. D.C. is a magnet, drawing lawyers to the capital precisely because of the national issues and the national practice that exist here. If this circuit is, in fact, a national court, it should not for political reasons be denied access to the thousands of D.C. lawyers specializing in these very matters.
Furthermore, the D.C. Circuit does not deal solely with appeals from decisions of administrative agencies and other matters of national scope. It considers a large number of purely local appeals from the U.S. district court. It is critical, therefore, that appointees to the D.C. Circuit include members of the local bar who understand the rules of evidence and procedure as applied in this jurisdiction. For the same reasons, the many outstanding judges serving on the U.S. district court and on our local trial and appellate courts should not be dismissed, as they have been.
It is also troubling that the administration has failed to nominate a single woman, black or Hispanic to the federal courts for the District of Columbia. The D.C. Bar is one of the largest single pools of women and minority lawyers in the country, with 8,000 to 10,000 women, 2,500 black and 600 Hispanic lawyers. Washington has the largest number of woman partners and minority partners at major law firms of any city in the country and undoubtedly the largest number of woman and minority government lawyers. Our local trial and appellate courts have 20 black male judges, five black female judges and eight white female judges. Clearly the opportunity to appoint candidates of varying backgrounds -- and judicial philosophies -- is overwhelming.
The Bork vacancy provides an occasion for a break with the past, and the Senate Judiciary Committee should insist that a local lawyer be named to fill the vacancy.
Paul L. Friedman
is immediate past president of the D.C. Bar.