The Senate Judiciary Committee yesterday debated a resolution that warns judicial candidates that belonging to discriminatory private clubs is "inappropriate" and could be grounds for denying them confirmation, even if they resign from the clubs after they are nominated.
The non-binding resolution, which would also apply to nominees for Justice Department jobs, says membership in clubs that discriminate against minorities, women or others "may be viewed as a tacit endorsement" of such practices.
Such membership "conflicts with the impartiality, and the appearance of impartiality," required of individuals in those positions, and can be held against them unless they are "actively engaged" in efforts to convince the club to change, the resolution adds.
Seven senators on the 14-member committee -- including Arlen Specter (R-Pa.) and all the Democrats except Alabama's Howell Heflin -- have sponsored the resolution, which is expected to come up for a vote later this month.
Judicial candidates have long been advised that it would be wise for them to resign from discriminatory clubs, and several nominations have been stalled or allowed to die when the nominees balked.
However, a number of committee Democrats have expressed concern that, as Sen. Howard M. Metzenbaum (D-Ohio) put it yesterday, "there is an absurd quality to our current position" permitting confirmation so long as nominees "utter a few words of contrition and then resign."
A prospective judge "who goes along with a private club's exclusionary policies but then resigns in order to take a seat on the bench does not demonstrate the kind of personal commitment to fairness and equal justice which we look for in a federal judge," Metzenbaum said.
But Sen. Strom Thurmond (R-S.C.), the committee's ranking minority member, dismissed the club controversy as "a side issue" and said the resolution "will do nothing more than create a committee 'litmus test' " that "is not appropriate."
Committee Republicans generally defended the rights of nominees to join clubs to be with their friends and pointed to the example of Sen. Lloyd Bentsen (D-Tex.), who resigned from two all-white country clubs during the 1988 Democratic vice-presidential campaign but rejoined after losing.
The Justice Department had asked to testify but pulled out, officials said, because they could not obtain Office of Management and Budget clearance for their testimony.
Thomas M. Boyd, director of the Office of Policy Development, said, "We understand and sympathize with the message the committee is trying to convey. Our concern is that the resolution as now drafted is defective."
He noted, for example, there is no definition of what a club is and that the resolution appears to take effect immediately, giving prospective nominees no chance to resign without the risk of being penalized later.
Women and black professionals testified yesterday that there is an adverse impact from being excluded from private clubs.
"I am not sure that white males can appreciate the fundamental indignity of being told that despite your professional and financial success, you cannot belong to a particular club or cannot eat in a certain facility," said Denver lawyer Catherine Boggs, testifying on behalf of Business and Professional Women/USA. "The effect of these kinds of rules is to put women in a very different class, an inferior status, and give the very subtle message that if you bring women along in this kind of context, it may be a problem."
Darwin Davis, a black senior vice president of the Equitable Financial Companies, said his all-black golf foursome -- which included the treasurer of Phillip Morris Co., a senior vice-president of Xerox Corp., and the late New York City schools chancellor Richard Green -- had not been able to join any of the 74 private golf and country clubs near his Connecticut home.
"The federal bench is the last resort for the American people, and judges who have for years been part of or have not worked to change this kind of system put doubts in the minds of blacks, minorities and women," Davis said.
Retired New York State Chief Judge Lawrence H. Cooke said membership in a discriminatory club raises "serious questions" about the qualifications of federal judges, who are charged with deciding discrimination cases.
Members of some clubs testified against the resolution, saying it would unfairly tarnish people who do not intend to discriminate and would infringe on their rights of free association.
William P. Sutter, a Chicago lawyer who represented the Rotary Club in an unsuccessful Supreme Court effort to defend the club's male-only rules, warned that the resolution could apply to seven men who regularly get together to play poker.
Harold B. Berman, a Dallas lawyer and past president of the National Clubs Association, said, "Members of a private club have a constitutional right to choose with whom they will associate. . . . To judge a nominee by reason of his club membership is unfair."