Last June 11, Sen. Edward Kennedy (D-Mass.) sent a letter to the Justice Department asking for further investigation of allegations found during an FBI background check of Charles B. Winberry Jr., of North Carolina, a nominee for a federal judgeship.
Two days later, then Associate Attorney General Michael J. Egan told Kennedy that the Carter administration was satisfied with its investigation and declined to make additional inquiries.
The Judiciary Committee chaired by Kennedy wasn't satisfied. Last Tuesday, after months of staff investigation and three days of hearings about alleged ethical misconduct, the committee voted, 8 to 6, to reject Winberry's nomination. It was the first time in more than 40 years that the Senate turned down a district judge candidate, who traditionally have been hand-picked by Senate colleagues.
Most participants said that Winberry's evasiveness in sworn testimony about his conduct as a defense lawyer in a 1976 cigarette smuggling case was the telling blow.
The American Bar Association took the extraordinary step of reversing its favorable rating of Winberry after the hearings.
The impact of the Winberry vote will be felt far beyond North Carolina. It is viewed as a symbol of change in the Senate's rubber-stamping buddy system of approving federal judges.
"While it's very hard on Mr. Winberry, perhaps it's good for the system, for the future," said Egan, who handled judgeships at Justice before leaving last August.
"It will be a fine thing for the attorney general. It will make it easier for him to insist on a higher standard from the senators," said former attorney general Griffin B. Bell, who approved Sen. Robert Morgan's (D-N.C.) choice of Winberry a year ago.
"I think the Senate, in the long term, the Senate did a great service for itself and the federal judiciary, which is the most powerful institution in government in many parts of the country," said Sen. Patrick J. Leahy (D-Vt.), who chaired the hearings and led the fight against Winberry.
Leahy is seen as the hero of the day by committee staff members, who knew a Democrat had to be in the uncomfortable position of heading the opposition to Morgan's former election-campaign manager.
In a phone interview yesterday, Leahy noted wryly that he didn't "gain any friends" in the process. In fact, he said several colleagues "made it clear I was totally violating the rules of the club."
Sen. Orrin Hatch (R-Utah), who led the GOP opposition said the Winberry nomination fight shows that President Carter hasn't lived up to his campaign promise to pick judges on the basis of merit rather than politics. "His 'Why not the best?" is unmitigated horse manure," Hatch said.
Former attorney general Bell said in a phone conversation from Atlanta that the Carter attempt to reform the judicial selection process "works well when the Senate allows it to work. All we need is to have the senators cooperate, use a selection commission, and pick the best off the list of candidates."
Bell said he felt Winberry was a "marginal" candidate for the lifetime job as a federal judge. But he said that the ABA originally found him qualified, that he personally made a judgment that a bribery allegation against Winberry was unfounded and that Morgan "insisted on this man."
As a result, Bell said, "We let him go through."
When the Carter administration arrived in Washington in 1977, Bell went to see Sen. James O. Eastland (D-Miss.), who preceded Kennedy as chairman of the Judiciary Committee, about changing the process for picking judges.
Though the Constitution says the president makes the selection with the advice and consent of the Senate, the practice is for senators from the president's political party actually to choose the candidates.
Eastland agreed to let the administration use "merit selection commissions" to find candidates for court of appeals judges, but not for the district judgeships.
Though many senators were willing to have commissions pick candidates for district bench seats, too, others like Morgan were adamant about keeping the decision to themselves.
Morgan told The Charlotte Observer in January that he had no intention of letting a commission do his work. "I am answerable to the people," he said. "If you leave it up to a commission, that is too far removed from the people."
When Winberry's nomination was forwarded from the White House to the Senate last March, committee investigators flagged it because of the unsubstantiated bribery allegation. While Justice refused Kennedy's request last June to continue its own investigation, it did assign an FBI agent to the committee to follow new leads.
Last September two committee investigators expanded the inquiry, and a first hearing in November raised more questions, according to Leahy, a former prosecutor.
The committee heard still more testimony on Winberry's nomination in late February. In Leahy's opinion, the hearings were the key. The cumulation of questions about Winberry's fitness simply wouldn't have arisen from a perfunctory look at documents, the senator said, declaring, "He would have been confirmed if we'd done the usual pro forma hearing."
In the end, Leahy's conclusion that Winberry wasn't qualified convinced enough committee members. "They said that because I was willing to buck the rules of the club, they weren't going to leave me standing out there alone," Leahy said.
Leahy said he didn't believe the Winberry precedent would "open a floodgate of rejections at the committee. Hopefully, poor nominees will now be rejected long before they get to the committee -- by the senators or the president."