Theodore R. Newman Jr. still retains a strong chance of being appointed to a second four-year term as Chief Judge of the D.C. Court of Appeals, despite deeply acrimonious and extraordinarily public opposition from four of his colleagues on the nine-member court, according to numerous sources.
Newman's supporters believe that his judicial competence and leadership ability, the two criteria on which the decision will largely rest, have not been convincingly discredited. His opponents, some of whom also opposed his appointment four years ago, fear that Newman will be reappointed because his supporters have successfully painted the dispute as ideological and racial. hThey contend it is not.
There were no allegations of illegal or clearly unethical behavior by Newman, leaving the U.S. Judicial Nominations Commission with essentially a political decision when it determines: Wednesday whether the 46-year-old Harvard Law School graduate should again head the District's highest court. h
It could refuse to reappointment Newman, a liberal black who some say has a better than average administrative record and who champions home rule in a city that is 70 percent black, on grounds that he does not get along with his colleagues.
But that decision would be viewed as accepting as valid a case premised largely on the complaints of four of Newman's colleagues. All four are more conservative than Newman, especially on the issue of home rule, and three of them live in the suburbs.
"Once it became black or white, liberal or conservative, the ball game was over," said one source familiar with the commission's proceedings. "For a lot of witnesses and judges [before the commission], once [the issue] became either standing by a black liberal chief judge or a bunch of conservative whites from the suburbs, everyone took a stand that way. If it had been publicly perceived as a personality question, probably we would have gotten different evidence and opinions."
The commission is itself a strongly political panel with four of its members chosen by politicans -- the mayor, the City Council and the president of the United States.
The harsh language used by the judges in closed-door testimony that was nevertheless printed in detail in The Washington Post emphasized differences among the nine judges so deep-seated that many observers, including judges on other courts, seriously questioned the court's ability to function in the future, regardless of the outcome.
"The court is injured by this. It's like washing linen and I don't want to see it," said one prominent black lawyer.
"It's like somebody beginning to tell you something about your mother."
Newman's opponents, led by Judge Frank Q. Nebeker, last week delivered scathing denunciations of Newman's judicial temperament and integrity, spiced with detailed and well-documented examples of alleged misconduct, to the closed-door meeting of the commission.
Nebeker said "the chief judge has attempted to aggrandize personal power by an unprecedented grab for 'inherent authority.'"
Judge Stanley S. Harris said, "Judge Newman considered the court to be his personal fiefdom, rather than reorganizing that the proper role of a chief judge was that of being 'first among equals.'"
Judge John W. Kern III, calling it a "story of tragedy," said that if he did not inform the commission of Newman's "uncontrollable actions and temperament, I would be a coward. If I were to tell you that our court, the highest court in this community, is operating effectively under the incumbent, I would be a liar."
The four dissident judges cited incidents they considered exemplary of Newman's unacceptable behavior. In one instance, they said, Newman attempted to commander control of a significant court decision in order, his opponents alleged, to write the potentially landmark opinion. The other judges overrode his efforts. And in another example, he refused to appoint retired judges to assist in hearing regular cases in the face of the court's heavy backlog, allegedly because the philosophy of the retired judges would be to the right of Newman.
But other examples cited by the opponents appeared to be of lesser legal substance.
"There was an incident last year," Nebeker said, "when the Clerk of Court and our senior associate judge were interrupted at a conference when the Chief Judge burst through the door and in great heat wrongly accused the clerk of countermanding an order respecting seating at an investiture ceremoney."
In another incident cited by Nebeker, "The chief judge, in an unseemly public display, excoriated a deputy clerk for having breached protocol by sending a merchant's catalogue to an associate judge before delivering it to the chief judge.
Newman's supporters, however, contend that citation of such minor incidents before the nominations commission raises greater doubts about the accusers than it does about the accused.
"I just don't think that a case has been made against his reappointment," one lawyer close to Newman said yesterday.
Newman, for his part, steadfastly refused to comment on the proceedings, adopting a virtual rope-a-dope defense in the face of the verbal pounding from his opponents. He made an impressive two-hour appearance before the commission, which he admitted that his temper was somewhat volatile, as alleged by his opponents.
But he also, the sources said, cited a laundry list of accomplishments that he considered progressive and noteworthy achievements in court administration. "His tactic is to be silent. His defense is what he has done [in the court]."
The judges opposing Newman tried desperately to steer their opposition clear of ideology and race. "If it were true that I am recommending that [Newman] not be redesignated . . . because of an ideological split," Judge George R. Gallagher told the private commission session, "then I would be the first to say I should be removed from the court for reprehensible conduct showing an utter lack of judicial integrity. As a matter of interest, I have agreed with Chief Judge Newman in more important decisions of this court far more often than I have disagreed."
And the judges pointed to the willingness of Hubert A. Pair, a retired black judge and one-time D.C. Corporation Counsel, to testify before the commission that the issue is not racial.
But, in a city where clashes between the old power structure and that which has emerged in the last decade often have racial overtones, the factor persisted.
If Newman were white, one of his former law clerks told a reporter, "his arrogance would be seen as brilliance."
"If Newman were white," said a D.C. Superior Court judge who opposes Newman's reappointment, "he wouldn't stand a chance to be reappointed."
Some blacks privately berated Newman's supporters for suggesting that race was involved in the controversy. "I don't want to go backwards in terms of race representation or liberal and conservative, but everything they've said [about Newman] is true," said one black lawyer active in liberal causes who knows Newman. "We used to have a saying in the Army -- if you couldn't pull rank, pull color."
The decision on Newman's reappointment is perhaps the thorniest yet to be made by the commission, which was created in 1974 under the city's Home Rule Charter. The panel has the sole authority to designate the Chief Judge of the Appeals Court and the D.C. Superior Court. It was created to improve the selection of judges on merit and to increase community participation in the process.
Its members are appointed from various sectors: Chairman Frederick B. Abramson, a lawyer with the uptown law firm of Sachs, Greenebaum and Taylor, who was once considered by Mayor Marion Barry as a possible corporation counsel, and attorney Mary Ann Stein, a woman who works with the Child Advocacy Center here, were appointed by the local bar association. William A. Borders Jr., a prominent criminal lawyer, was chosen by President Carter. Lawyer Charles T. Duncan, the one-time dean of Howard University Law School and confidant of former mayor Walter E. Washington, and William Lucy, Washington's former campaign chairman and secretary-treasurer of the American Federation of State, County and Municipal Employees, were appointed by Washington.
John W. Hechinger Sr., the president of the chain of hardware stores that bears his family name and the winner over Lucy in a race for Democratic National Committeeman in 1976, was appointed by the City Council. He is close to former council chairman Sterling Tucker.U.S. District Court Judge Harold H. Greene was appointed to the commission by U.S. District Court Chief Judge William B. Bryant. Newman opposed Greene's appointment to the commission. Hechinger, Stein and Greene are white.
Newman's opponents were worried from the outset that theirs was a losing cause. "On a number of ocassions i have been told by persons whose reliability I consider unquestioned that Judge Newman himself has said that he 'has four votes' or is otherwise assured of redesignation by a majority of the commission," Harris said in his testimony.
Of those on the commission, observers say, Abramsson, Borders and Lucy are considered strong supporters of Newman, with Duncan, Stein, Hechinger and Greene as question marks.
The breakdown of the commission's votes does not have to be disclosed, but, observers feel that any vote that splits along racial lines, would be untenable. Newman's opponents have suggested two other judges as possible candidates for the post. They are Judge William C. Pryor, who is black and more conservative than Newman, and Catherine B. Kelly, a liberal woman who is close to Newman and the most senior judge on the court.