THE FIRST round of hearing on the nominations of two black lawyers to be federal judges in Alabama has left the Senate Judiciary Committee confused. Its members decided a year or so ago to begin measuring prospective judges against much higher ethical and professional standards than they had used previously. But they have yet to articulate what those standards are or to figure out how to apply them. Now, confronted with two hard cases that have dire political overtones, they seem baffled.
The nominations in question are those of U.W. Clemon and Fred D. Gray, both civil rights activists in a state where such activities is still extremely controversial business. The American Bar Association, supported by much of Alabama's legal establishment, has told the committee that neither man is qualified to sit on the federal bench. Civil rights groups claim both are qualified and point out that the state's white judges -- Mr. Clemon and Mr. Gray would be the first black federal judges there since Reconstruction -- were never held to the stringent standards now being put forward.
Both men have been charged with large amounts of wrongdoing. In several instances, these charges clearly seem to be the product of their aggressive approach to civil rights issues. But once such matters are dismissed -- and the Judiciary Committee seems to have done that -- other problems remain.
The principal objection to Mr. Clemon centers on what appears to have been a rather cavalier attitude toward paying income taxes. He persistently filed his returns late and put off paying until the Internal Revenue Service pushed hard for its money. Is that, as the ABA claims, evidence of a contempt for law inappropriate in a would-be judge? Or is it acceptable behavior in a young lawyer who has cash-flow problems because legal fees are not always paid promptly? Mr. Clemon's problem is compounded by the fact that he didn't reveal his tax record immediately to those examing his judicial qualifications. That, depending on how you interpret the evidence, was either an oversight or a cover-up.
For the Judiciary Committee, however, there is a further question. How far into a judicial candidate's personal affairs -- as contrasted with his professional activities -- should investigators pry? Should a judge be clean as a hound's tooth both professionally and personally, or are some personal faults tolerable? If so, which ones?
The objections to Mr. Gray are quite different. The ABA claims he provided incompetent legal services or was grossly negligent in two industrial bond issues that turned out to be fraudulent. It is also troubled by changes made in a deed by someone in his office after it was signed by possible conflicts of interest in two cases in which he was involved.
Whatever the Judiciary Committee finally decides on these questions, it will be setting standards future judicial nominees will have to meet. That, in the long run, may turn out to be more important than what the committee does with these nominations -- if its members make good in the future on their decision to scrutinize all judicial appointments closely.