Daniel A. Manion made several revisions last month in the official transcript of his earlier Senate Judiciary Committee testimony, softening or deleting phrases on an issue central to the controversy over his federal appeals court nomination, a copy of the revised transcript shows.
Sen. Joseph R. Biden Jr. (D-Del.) said yesterday that Manion's revisions went well beyond the technical or grammatical changes that Senate witnesses are routinely permitted to make while reviewing their testimony. But Sen. Orrin G. Hatch (R-Utah) disputed the charge last night, saying, "I don't think he did substantively change his position."
The nomination of the former Indiana state senator to the 7th Circuit Court of Appeals in Chicago has become a test of President Reagan's continued ability to win confirmation of his choices for the federal bench. The Manion nomination, the subject of a full-scale assault by Democratic opponents, faces a critical Senate cloture vote today.
President Reagan has been calling undecided senators on Manion's behalf and, in one case, the White House has agreed to drop its objections to a judicial nominee pushed by a Republican senator who had threatened to block a vote on Manion.
The changes in Manion's testimony involve a 1981 bill he cosponsored in the Indiana legislature that would have allowed the Ten Commandments to be posted in the state's public school classrooms. The measure was similar to a Kentucky law struck down by the Supreme Court two months earlier and is being cited by Manion's opponents as evidence of his disrespect for the law.
When Manion testified April 30 before the Senate Judiciary Committee, Biden asked him if it was likely that the Ten Commandments bill he cosponsored would have been struck down by the courts had the legislature passed it.
"Yes, I would say it would have been overturned," Manion said. "No question about it."
In the revised transcript that Manion returned to the committee, he wrote in the word "probably," so it now reads that the bill "probably would have been overturned." Manion also crossed out the next sentence, "No question about it."
At two other points, Manion testified that the bill was similar to the Kentucky law and "probably would have been" struck down. He changed the transcript to say that it "may have been" struck down.
The instructions to witnesses from the Senate printer say that "only changes in diction, expression, clarity, brevity, accuracy, or to correct any errors in transcribing, are permitted." The revised testimony has become the official version to be reviewed by senators, and will later be published.
"There are substantive changes in here," said Biden, who repeated the charge in Senate debate last night. "The guy raised his right hand and swore he would tell the truth, and then he changed the truth."
Biden, Sen. Edward M. Kennedy (D-Mass.) and other Democrats have argued that Manion's willingness to sponsor a clearly unconstitutional measure demonstrates his lack of respect for court rulings. Manion had testified that he cosponsored the bill as a protest against the Supreme Court's ruling.
"He's trying to shift to an argument that this really wasn't unconstitutional on its face, as opposed to saying 'I was pushing something I knew to be unconstitutional,' " Biden said.
Mark Goodin, a spokesman for Judiciary Committee Chairman Strom Thurmond (R-S.C.), called the charge "a cheap shot" and said Manion's changes were similar to those of other nominees. "This is splitting hairs," Goodin said. "The man clarified statements. There were no departures from facts . . . . This is another in a long line of trivial attacks on the guy."
Manion changed his testimony at about the same time his chief Senate supporters, Dan Quayle (R-Ind.) and Richard G. Lugar (R-Ind.), were circulating a "Dear Colleague" letter that said Manion's bill differed significantly from the Kentucky law. Quayle spokesman Peter Lincoln said the senators were not speaking for Manion, but consulted him on the letter. He said the Manion bill allowed the Ten Commandments to be posted, while the Kentucky law required it.
Manion also deleted from the transcript his comment that there were "not too many" differences between his bill and the Kentucky law.
The controversy over the transcript comes amid allegations that the administration has been speeding consideration of judges sought by Republican senators whose support it is seeking on Manion.
Hours before the Senate debate began Tuesday, a top White House official called Sen. David F. Durenberger (R-Minn.) to say the administration was dropping its objections to a Minneapolis attorney whom Durenberger has been pushing for a federal judgeship for 10 months. Durenberger, in turn, agreed to withdraw an earlier threat to put a hold on Senate consideration of Manion.
"There do happen to be a couple of nominations moving right now, but there is no grand strategy," said Justice Department spokesman Patrick Korten. "We're not out there trying to buy votes with judges. There may be a happy coincidence of interest here. We've received no commitments from the senators in the states involved that they'll vote for Manion."
Durenberger has met with Attorney General Edwin Meese III three times in an effort to win approval for his district court nominee, David Doty, a longtime acquaintance and former president of the Minnesota Bar Association. But the proposed nomination has been stalled since last summer because of what Durenberger has said are unfounded complaints by Justice Department ideologues that Doty is too liberal.
Some Minnesota conservatives have complained to the Justice Department that Doty's wife, Mary, worked for John B. Anderson's 1980 presidential campaign against Reagan and is viewed as a pro-abortion feminist.
Durenberger spokesman Jon H. Schroeder said the senator had warned the administration that he would place a hold on Manion's nomination unless the dispute over Doty was resolved. He said the White House cleared the way Tuesday for an FBI background check of Doty.
Schroeder emphasized that Durenberger has made no commitment to vote for Manion, but said he generally supports the president's right to nominees of his own choosing.
Manion's fate may hinge on whether Republicans can muster 60 votes today for a cloture petition to limit debate on the nominee, whom opponents say is too inexperienced and too extreme.