In considering presidential nominees for district and appellate judgeships, professional qualification alone should no longer be considered a ticket to a seat on the bench.
For years partisan gridlock and political pandering for campaign dollars have led to failures of the Congress and White House, whether Democratic or Republican, to legislate and execute laws on a variety of matters of urgent concern to our citizens. As a result, the federal courts have become increasingly powerful architects of public policy, and those who seek such power must be judged in the spotlight of that reality.
Years ago battles of the bench were pretty much limited to the Supreme Court: FDR's effort to stack the court with New Dealers, Johnson's attempt to name Abe Fortas chief justice, Nixon's push to seat Clement Haynsworth and Harrold Carswell, and the in-your-face street fights over Robert Bork and Clarence Thomas. Senate scrutiny was painstaking because the nine justices have such a potent voice in setting national policy.
In those days, when it came to lower-court nominees, senators deferred to the wishes -- and litmus tests -- of their colleagues from the nominee's state and the president. Until Lyndon Johnson moved into the Oval Office, southern senators such as Mississippi's John Eastland, then Judiciary Committee chairman, insisted that presidents (including John F. Kennedy) nominate segregationist federal judges in their states. LBJ believed Kennedy had made a mistake in bowing to these senators. If there was to be a litmus test, it would be his.
As a result, in selecting judicial nominees, those of us who helped check them out and interviewed them nailed down their views on civil rights, desegregation and racial justice. LBJ's insistence on this cost him the friendship of his mentor, Georgia senator Richard Russell, over a federal appellate court seat.
The litmus test of recent years has focused on the pro-life or pro-choice views of nominees. It is as inconceivable that Ronald Reagan would have sent the Senate a decidedly pro-choice nominee as it was that Bill Clinton would have named a pro-life one.
Litmus tests are nothing new. What's new is the growing role of federal courts in crafting national policies once considered the exclusive preserve of the legislature and executive. As gridlock and big money have stymied the House and Senate and shaped the way laws are executed, concerned citizens have gone to court with petitions they once would have taken to legislators and executive appointees. As the federal courts have moved to fill the public policy vacuum, conservatives, liberals and a host of special interests have developed a sharp eye for those nominated to sit on the bench. So should the Senate.
The failure of Congress to enact sensible public health policies regarding tobacco to protect our children from nicotine pushers sent anti-smoking advocates to federal court to draft a settlement agreement with provisions that read like sections of a federal statute. While Republican and Democratic administrations and Congresses have been fiddling over a patients' bill of rights, patients have gone to federal court for relief likely to have at least as much impact on health maintenance organizations as anything the politicians at both ends of Pennsylvania Avenue can cobble together.
Despairing of more effective legislative or executive action, many cities are asking federal district judges for damages and court orders to restrict the way manufacturers sell handguns and other firearms. Federal District Judge Colleen Kollar-Kotelly's final orders to remedy Microsoft's monopolization may have more to say about the development of the Internet economy that any president, House speaker or Senate majority leader.
When the executive does act, say on cigarette marketing or environmental protection, adversely affected businesses rush to court to overturn its actions and regulations. The big bankrollers of drug legalization like George Soros know the difference between a federal judge who can find a way to uphold state medical marijuana laws and one who will find that federal statutes preempt them.
Environmentalists, prison reformers and consumer advocates have learned that what can't be won in the legislature or executive may be achievable in a federal district court where a sympathetic judge sits.
Federal district judges are the lords of their realms, and unless they open the gates, it can be impossible for the litigating parties to get out once they enter the courtroom kingdom. These judges can hold cases for years, tying up businesses and regulating prisons, cities and schools with detailed court orders.
The battle over who fills the record number of judicial vacancies has taken on an importance unimaginable just a generation ago. Who sits in federal district and appellate courts is more important than the struggle over the budget, the level of defense spending, second-guessing the tax bill and whose fingers are poised to dip into the Social Security and Medicare cookie jars.
President Bush and Republican Sen. Orrin Hatch understand this as surely as Democratic Senate Judiciary Chairman Patrick Leahy and subcommittee Chairman Charles Schumer do. Both sides know that many of the individuals who fill these seats will have more power over tobacco policy, prison reform, control of HMOs, the death penalty, abortion, environmental issues, the constitutionality of redistricting for House elections, gun control and the rights of women and minorities than the president or congressional leaders, and for a longer period of time.
That's why professional qualifications should be only the threshold step in the climb of judicial nominees to Senate confirmation. There is not sufficient time to examine each lower federal court nominee with the penetrating policy MRI reserved for Supreme Court justices. But the Senate must take enough time to give these men and women the kind of searching review their sweeping power to make national policies deserves.
The writer is president of the National Center on Addiction and Substance Abuse at Columbia University. He was Lyndon Johnson's special assistant for domestic affairs and secretary of health, education and welfare from 1977 to 1979.