A quotation accompanying a photograph was incorrectly attributed to Sen. Strom Thurmond (R-S.C.) in early editions yesterday. The quote, which appeared on the Federal Page, should have been attributed to Sen. Patrick J. Leahy (D-Vt.). (Published 10/20/87)

As the battle over Supreme Court nominee Robert H. Bork and his eventual replacement threatens to drag on into 1988, nominees for lower court judgeships are starting to pile up at the Senate Judiciary Committee like so many planes circling at rush hour.

So are the recriminations, on both sides.

Justice Department officials and other Republicans accuse the Democrats in charge of the committee of using the Supreme Court vacancy as a justification for delaying action on the 34 other nominees.

"There's an unprecedented number of vacancies that are lying fallow in the U.S. Senate Judiciary Committee," said Assistant Attorney General Stephen J. Markman. "We're extremely concerned that the Judiciary Committee can't seem to focus on two things at the same time . . . . I think they are stalling, and they're using Bork now as an excuse for their stalling."

Committee Democrats respond that they are moving as fast as they can, under the unusual circumstances presented by the Bork nomination, and that the Republicans are to blame for any delay.

"I think we've moved them through remarkably, at least if you go by the standard that we're not going to just rubber stamp them," said Sen. Patrick J. Leahy (D-Vt.), head of a new unit that screens judicial nominees.

When Democrats tried to schedule a hearing for last week, said Pete Smith, a spokesman for Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.), Republicans objected because the Bork nomination required their attention.

The battle was brewing in the committee well before President Reagan nominated Bork July 1, with South Carolina Sen. Strom Thurmond, the ranking Republican, complaining about the panel's "extremely slow pace" and one conservative publication describing its handling of nominations as the "slow-motion spring."

With the retirement of Justice Lewis F. Powell Jr., the senators and committee staff focused much of their attention on plowing through Bork's voluminous record. "An awful lot of the committee resources went into dealing with that nomination," Smith said. "It's obviously had a major impact on the processing of other judicial nominations."

Committee Democrats defend their performance as the best that was possible, given the need to deal with the Bork nomination. While Bork was pending, they point out, the committee held hearings on 11 nominees -- including one hearing on four nominees held four days before the Bork hearings started -- and the Senate confirmed five trial court and three appeals court judges.

"It was difficult only because it stretched everybody so thin, but we still got an awful lot of them through" before the nearly three weeks of hearings on Bork started Sept. 15, Leahy said. "There was just absolutely no way of doing it during Bork."

Now, Leahy said, "I assume there will be a number of weeks between what everybody assumes will be the inevitable result in the Senate and the next nominee. I will do as many hearings as I can during that time." Three hearings, on a total of eight nominees, are scheduled for the next two weeks.

Still, with Congress aiming to adjourn Nov. 21, a Democratic committee aide warned, "We have a very narrow window here and the delay from the Senate Republicans {over Bork} is making it narrower and narrower. Once those hearings {on a new Supreme Court nominee} get under way, they have to take priority."

Of the 34 pending nominations, 24 were sent over since Bork was nominated. The committee has held no hearings for 26, while two have had one hearing and are awaiting a second round, five are awaiting a committee vote and one has been held up in the Senate.

"It's simple planned delay," charged a Republican committee aide. With Bork's flagging nomination awaiting a final vote on the Senate floor, the aide said a new Supreme Court nomination won't solve the problem. "They can do like they did with Bork and completely stop it. They will use that as an excuse to slow down the remaining nominees."

Republicans are most steamed over the handling of several controversial nominees pending since early this year, including Bernard H. Siegan, a University of San Diego law professor nominated Feb. 2 to the federal appeals court in San Francisco.

Siegan is a libertarian who has published several books on his free-market approach to legal issues and who contends that the high court has gone too far in using the 14th Amendment to create constitutional rights to abortion, privacy and desgregated schools.

"If they have questions, let's have the hearings, get it out and have the vote, up or down," Assistant Attorney General John R. Bolton said of Siegan and other controversial nominees.

The committee had been scheduled to hold a hearing on Siegan in July, but that was indefinitely postponed after Bork was nominated -- in part, sources said, out of concern that Siegan could make Bork's views appear moderate.

Siegan "probably would have been the major judicial fight of the year" had the Supreme Court vacancy not occurred, Smith said. "It would have taken itself a great deal of time."

Now, with another round of Supreme Court confirmation hearings looming, he said, "as a practical matter most of these nominees are not controversial and can and will be moved, but the practical effect will be that those who are very controversial may well not be dealt with at all this year."

On the other side, committee Republicans are raising questions about the nomination of Seattle lawyer William Dwyer, who was named to the district court after former senator Slade Gorton (R-Wash.) agreed to vote for controversial appeals court nominee Daniel A. Manion.

Thurmond asked for an additional hearing on Dwyer to address questions about his actions when, as the lawyer for a local library board, he approved the use of a children's sex education book, "Show Me."

"We're ready to go forward with him but Sen. Thurmond says that he's got a lot of witnesses in opposition to him," Leahy said.

"There won't be any calculated slowdown on my part, but if there's one that's contentious, then I expect we'd get that out of the way . . . . If they're going to ask for delays on judges who are totally acceptable to a majority of the committee, then they're going to have to pay the price on slowing up" the other nominees, he said.

Meanwhile, administration sources say there will shortly be a new load of nominees for the committee to grapple with as Reagan names individuals to fill more of the 63 judicial vacancies that exist, according to the count of the Administrative Office of the U.S.


How many of the current and future nominees the committee will be able to get to this year depends on who the president names to replace Bork, Democrats said. "Obviously, if it's a complex and controversial nomination it will drain off more resources and slow the process down again," Smith said. "If the next nominee is not controversial, we can continue along at a good pace dealing with lower court nominees."