In his national radio address Saturday, President Reagan made an unusual appeal on behalf of his controversial nominee for the 7th Circuit Court of Appeals, Daniel A. Manion.
The Senate Judiciary Committee on May 9 failed to approve Manion's nomination on a 9-to-9 vote, then voted to send it to the full Senate with no recommendation. Excerpts from Reagan's address, and from Judiciary Committee reports opposing and supporting the nomination, follow.
From President Reagan's radio address:
Partisanship in the Senate has pushed fair play by the boards; which is why I've sent a letter to the Senate expressing my strong opinion about the prerogative of the president to make qualified appointments to the federal judiciary, and what I feel has been the partisan use of the confirmation process . . . . Believe it or not, they've even tried to make a major issue of a few typographical errors in several of his briefs and the fact that he practices law in a small town . . . .
Let's be honest. The real objection to Dan Manion is that he doesn't conform to the liberal ideology of some senators. In fact, one senator blurted out as much in the confirmation hearing. "I think you're a decent and honorable man," he said to Dan Manion, "but I do not think I can vote for you because of your political views." But I believe the Senate should consider only a nominee's qualifications and character, not his "political views."
From "A Report of Members of the Judiciary Committee Opposed to the Nomination," June 1986. The report was signed by five Democrats. Emphases are theirs.
Since 1981, the Senate has confirmed 59 nominees to the Courts of Appeals and 205 appointments to the federal district courts. Only four nominations during this period have required roll call votes. While most of these nominees share a conservative judicial philosophy closely in tune with that held by President Reagan, they have been approved by the Senate, Democrats and Republicans alike . . . .
Mr. Manion had a full opportunity to demonstrate that he possessed the intellect and impartiality which are inherent qualifications for this life-tenured job, but we believe he failed to do so. Rather, we are compelled to find that, at best, this nominee is merely an undistinguished lawyer whose personal character is not at issue . . . .
With disturbing frequency, Mr. Manion during confirmation hearings either did not recall or attempted to evade responsibility for numerous earlier statements and beliefs . . . .
A majority of the American Bar Association Standing Committee on the Federal Judiciary rated Mr. Manion only as "qualified," the lowest possible approval rating. A minority of the ABA committee found he was "not qualified" to serve on the federal appeals court . . . .
Mr. Manion lacks demonstrated excellence of achievement in any area of the law. He has little, if any, experience in dealing with federal constitutional or public law issues. In fact, he has never argued a case before . . . any federal appeals court . . .
Mr. Manion's legal briefs demonstrate a pervasive lack of technical ability, craftsmanship, attention to detail, and reasoning. Mr. Manion submitted copies of five of his best briefs to the committee in response to a staff request . . . . In each case, a review panel found that Mr. Manion's writing fell far short of the standard that should be expected of a federal appeals court judge.
In January 1981, Mr. Manion, as a member of the Indiana state Senate , cosponsored a bill he says he knew was unconstitutional. That bill authorized the posting of the Ten Commandments in public schools throughout the state . . . two months after the U.S. Supreme Court had invalidated a virtually identical Kentucky statute . . . .
Mr. Manion's justifications of his actions as 'legislative prerogative' and 'legislative protest' are incompatible with the Constitution itself and evidence an unacceptable insensitivity to fundamental constitutional principles . . . .
Our concern . . . is also based on Mr. Manion's responses to questions about his praise for the John Birch Society. On Aug. 27, 1979, Mr. Manion wrote a letter to the American Opinion Bookstore in Elkhart, Ind., which is the local headquarters of the John Birch Society. The letter, a response to condolences regarding the death of Mr. Manion's father, states in part:
"Your members are certainly the people who are on the front line of the fight for Constitutional Freedom . . . . "
During his confirmation hearing, however, Mr. Manion insisted that this letter did not indicate that he actually agreed with any of the positions of the John Birch Society, testifying "I do not have any idea . . . I could not tell you what the policies of the John Birch Society are . . . . "
In sum, at his April 30, 1986, confirmation hearing, Mr. Manion denounced most of the positions to which he had adhered in the past . . . and asked the committee to act on his newly professed convictions . . . .
Mr. Manion is not qualified to be a federal appeals court judge and the Senate should not consent to his nomination.
From a report submitted by Republican members of the committee in favor of Manion's nomination. Emphases are theirs.
Mr. Manion's legal background is diversified, including civil and criminal law, state and federal practice, and trial and appellate experience. He possesses an excellent background of broad litigation experience as well as experience in the executive branch of the state government . . . .
It should be noted that 'qualified' rating by the ABA is the norm. Furthermore 43 percent of all nominees to the Court of Appeals under President Reagan have received this rating and each has been approved by the Senate . . . .
The suggestion that he is not qualified because he has not tried a constitutional law case is also specious. Lawyers generally and many lawyers presently serving on the federal bench . . . have not tried constitutional law cases . . . .
Mr. Manion's commitment to follow Supreme Court precedent on the appellate bench is in no way undermined by his vote as a state legislator (along with an overwhelming 39-to-9 majority of the Indiana state Senate) to authorize voluntary posting of the Ten Commandments in Indiana public schools. The vote followed shortly after the bare 5-to-4 Supreme Court . . . holding in Stone v. Graham . . . that a Kentucky statute requiring that the Commandments be posted lacked the requisite secular legislative purpose. Not only was the proposed Indiana legislation significantly different . . . but Mr. Manion's obligations as a state senator voting on a bill he believed to be constitutional were quite different from what would have been required of him as a lower court federal judge.
Mr. Manion testified that he "totally endorse s " the principle that federal appellate courts are bound by Supreme Court precedent . . . .
Mr. Manion is criticized for his letter to the American Opinion Bookstore . . . . Immediately after his father's death, Mr. Manion responded to many condolence letters . . . . Mr. Manion has stated that his remarks were intended only to appropriately respond to an expression of sympathy . . . . Mr. Manion is not now, nor has he ever been, a member of the John Birch Society.
Various accusations have been leveled . . . with regard to statements made in connection with the radio and television program "The Manion Forum." It was a program conceived and produced by . . . the nominee's father . . . . Daniel Manion's role was that of an interviewer, and he so testified at his hearing . . . .
Accusations have been made that he is now recanting public statements that he made as an interviewer. We do not think this is a fair . . . characterization considering that his role on "The Manion Forum" was to make those being interviewed feel at ease and willing to express their opinions . . . .
Mr. Manion has indicated that he was requested to respond to the committee's request for his legal briefs under severe time constraints. He submitted them with the caveat that he knew there were typographical errors, that the briefs were unedited, and that his selection was intended to show the current diversity of his work . . . .
Lawyers generally work under severe time constraints. Keep in mind that Mr. Manion practices law in a comparatively small town with a small firm. The resources of such a firm cannot be compared to those of large firms in the areas of equipment and number of support personnel . . . .
Mr. Manion's reputation for honesty and integrity is unquestioned . . . . Even his most strident critics have to admit that he is a fair and just individual . . . . Mr. Manion is clearly qualified and should be confirmed by the Senate.