The candidate who was to be the Reagan administration's first woman nominee to a U.S. appeals court has been dropped after conservative Republicans campaigned against her the same way they did against the nomination of Supreme Court Justice Sandra Day O'Connor.
The subject of this dispute is Judith Whittaker, who was selected in the fall by the Justice Department for the 8th U.S. Circuit Court of Appeals. Whittaker, a corporate lawyer in Kansas City, was first in her University of Missouri Law School class and, in the view of the American Bar Association, a fully qualified candidate for the appeals court -- the level just below the Supreme Court.
The objections to her, like those raised against O'Connor, involved the issues of abortion and the Equal Rights Amendment, as well as a claim by some Republican leaders in Missouri that she is insufficiently Republican. The funnel for the complaints against Whittaker, according to Missouri Republicans, was White House political director Lyn Nofziger, who filled the same role during the O'Connor dispute.
Unlike O'Connor, however, Whittaker was never nominated, and administration sources said that as of yesterday she was out of the running. Deputy Attorney General Edward Schmults confirmed that the Justice Department is searching for other candidates.
The episode has angered women's organizations and it has upset Whittaker. "It's aggravating," she said. "It really is aggravating. This has been a campaign of misinformation instigated by a very few people. My feeling is that the very conservative opposition tends to zero in on women. I don't think they make such irresponsible charges that men are pro-abortion."
Susan Ness, director of the Judicial Appointments Project for the National Women's Political Caucus, said, "Women are being singled out." She noted that of seven appellate court vacancies filled by President Reagan, none has been filled by a woman, and there is only one woman among 45 district court appointments.
Conservatives and administration officials deny that women are being unfairly treated. "The charges are not fair or accurate," said Schmults. The department is looking for other candidates not because of opposition to Whittaker from "one quarter or another," he said, but because there was simply not enough "broad-based support" for her.
But one high White House official, presidential counsel Fred Fielding, agreed with at least one part of the women's charges. "The abortion issue most often comes up in regard to potential women candidates," he said. "I can't comment on why it does. I don't know the answer."
Whittaker, 43, is associate general counsel to Hallmark Cards and a trustee of Brown University and the University of Missouri at Kansas City. The 8th Circuit covers Missouri, Arkansas, Iowa, Minnesota, Nebraska and the Dakotas. Because of the elevated status of the appeals courts and the fact that their jurisdiction covers regions, rather than individual states, nominations have traditionally been considered relatively insulated from partisan political considerations.
After the Justice Department selected Whittaker, she was successfully screened by the FBI and the American Bar Association's Committee on the Federal Judiciary.
The opposition started in Missouri but soon spread to the same national conservative organizations that led the fight against O'Connor. Richard Viguerie's New Right report recently described Whittaker as a "liberal Democrat," a "strong feminist," and pro-abortion. Michael Hammond, general counsel to the Senate Steering Committee in Washington, who has been lobbying against her, described her as a "member of the American Civil Liberties Union," "a member of a women's caucus at Hallmark Cards which took fairly liberal stands on abortion and the ERA," and as an opponent of a "curb on pornography" in Kansas City.
John Powell, the former Missouri Reagan campaign chairman and now Missouri Republican chairman, said she was a "liberal . . . not even a Republican . . . a liberal on abortion." Her opponents also criticize her for having been on the board of a legal services agency in Missouri.
Whittaker said in an interview that she has supported the ERA. "I am a Republican," she says, noting that she has contributed money to Republican campaigns and is supported by state Republicans, including the mayor of Kansas City, who is a Republican although the office is nonpartisan. She said she once belonged to the ACLU but no longer does. She said she knows of no "women's caucus" at Hallmark Cards and she has never been particularly active in feminist causes.
She said her only involvement with the pornography issue was to help her company keep an obscene bookstore out of a Kansas City development project. She did serve on a legal services board, she said, but so did Attorney General William French Smith when he was a private attorney in Los Angeles.
She said she has never taken a public position on abortion and does not understand where the idea that she is pro-abortion came from. Asked about that, Powell, the Missouri GOP chairman, said, "I'm not familiar with that issue," but he added that Kathy Edwards, a Missouri anti-abortion activist, "is fighting her tooth and nail."
Edwards, president of Missouri Citizens for Life, acknowledged that "we don't have anything concrete" on Whittaker's views on abortion, and conceded that she had made no effort to seek out the abortion views of three recent male U.S. District Court appointees in Missouri.
"We did not check out their positions on abortion . . . . The appeals court has attracted more attention," she said.
Whittaker, like O'Connor, has declined to express her views on the Supreme Court's decisions legalizing abortion. Both maintain that such expressions might prejudice their work on the court.
Powell said he waged his campaign against Whittaker through Nofziger, and said that it had not been easy. "I kept complaining," to Nofziger, Powell said. "We'd get it knocked in the head and then someone in the Department of Justice kept sticking it back in." Nofziger did not return telephone calls.
Schmults said yesterday that the decision to look at other candidates was a "consensus" decision among White House and Justice officials. "What happened here is no different than anything that happens with a whole variety of people who are candidates for appointment. When opposition develops, you look and see what the support is," he said. In this case, he indicated, officials decided there was not enough.
Whittaker's husband is the son of the late Supreme Court Justice Charles Evans Whittaker.