Nixon's Other Judges

Supreme Court decisions and Supreme Court nominations make much of the legal news, but the nine men in black who occupy the marble temple behind the Capitol are only the most visible part of the federal judiciary. Most cases within federal jurisdiction never get to them. Instead, the great bulk of its litigation is disposed of in the 89 district courts and the eleven U.S. Courts of Appeals around the country. The lower courts are the workaday world of the federal judicial system, and the caliber of the people appointed to these benches is a large factor in the quality of U.S. justice. Though some of Richard Nixon's candidates for the Supreme Court have been of dubious distinction, his selections for the district and appeals levels get generally good marks for professional competence.

"There is definite evidence that the quality of the federal judiciary has been going up," says Albert Tenner Jr., former head of the American Bar Association's Standing Committee on the Federal Judiciary. Nixon has appointed a total of 135 people to the federal bench, and four of his nominations are pending in the Senate. The A.B.A., which rates each one before confirmation, found 72 "well qualified" or "extremely well qualified"; not a single nominee was ruled out as "not qualified." John Kennedy managed to nominate eight men whom the A.B.A. blackballed, and Lyndon Johnson four. Nixon has followed the partisan tradition in picking his candidates. Of his nominees, 90% are Republicans. Johnson put up 94% Democrats, Kennedy 91%; Dwight Eisenhower named 93% Republicans.

Blue Slip. Senators play a major role in the selection. They are invariably consulted in advance of a nomination, and they have an unwritten but real veto power over the President's choice. Senate practice blocks confirmation of any candidate for the district or circuit bench who is unacceptable to either of his home-state Senators. James Eastland of Mississippi, chairman of the Senate Judiciary Committee, sends both of the Senators a blue slip bearing the nominee's name, and if either fails to return it, the nomination is abandoned.

In the Administration, the key man in the process is Deputy Attorney General Richard Kleindienst. In 1969 Kleindienst put together a judicial master list of sorts containing the names of some 150 possible candidates for Supreme Court vacancies. The roster has been used for nominations to lower courts as well. It is heavy with sitting judges and Establishment lawyers; Republican Administrations tend to tap prominent law firms for court talent. Says one Administration official: "We've produced lots of good judges, but we haven't produced the best. We've ignored the good law professors because they don't come through the system. They're not cronies of the Senators." Still, the Administration's record is more than passable. Among Nixon's better nominees:

WALTER MANSFIELD, 60, of New York, on the Second Circuit. Before moving up to the court of appeals in June, Mansfield sat for five years as a district court judge, where he made a distinguished record. One well-publicized decision required McSorley's Old Ale House in Manhattan to admit women. "Without suggesting that chivalry is dead," he wrote, "we no longer hold to Shakespeare's immortal phrase, 'Frailty, thy name is woman!' "

ARLIN ADAMS, 50, of Philadelphia, on the Third Circuit. He has an extensive background in private practice, interrupted by three years as Governor William Scranton's secretary of public welfare. Lawyers admire both his integrity and his legal acumen. Like many of the Nixon nominees, he is a tough law-and-order man but, adds Georgetown University Law Professor Samuel Dash, he is also "a sensitive human being."

ROGER ROBB, 64, of the District of Columbia Circuit. A photograph of Barry Goldwater has a prominent place on one wall of his chambers; last year he fired a law clerk reportedly for signing an antiwar petition. But his logical judicial reasoning commands the respect of both liberals and conservatives. He was a magna cum laude graduate of Yale and made a reputation as one of Washington's ablest trial lawyers. One client: former Communist Party Chief Earl Browder, indicted for contempt of Congress in 1950 and acquitted the next year.

JOHN PAUL STEVENS, 51, of Chicago, on the Seventh Circuit. He clerked for the late Supreme Court Justice Wiley Rutledge, then specialized in antitrust cases in private practice. In 1969 he was special counsel to an investigating commission that found two Illinois Supreme Court justices guilty of "gross impropriety" for accepting bank shares from a former state revenue director. On the court of appeals, one of his dissenting opinions, upheld the rights of Father James Groppi, the activist Milwaukee priest.

Some of Nixon's appointees are of less distinction. U.S. District Judge Samuel Conti of San Francisco has a reputation with the bar for regressive rulings--including taking the highly unusual action of denying bail to four Selective Service defendants. Spencer Williams of the same court was found barely qualified by the A.B.A. On the Fifth Circuit, which covers much of the South, Joe McDonald Ingraham ranks as a less than distinguished choice; as a trial judge, he gave Muhammad Ali the maximum sentence of five years and a $10,000 fine for refusing to be drafted. The conviction was later overturned.

College Roommate. The South has been a judicial sore spot for Presidents other than Nixon. No recent President has nominated a black in the South; indeed, Nixon has named only three blacks to district courts. Lyndon Johnson chose nine for district benches and higher judicial posts, while John Kennedy selected three. Of Nixon's four Southern nominees to the Fifth Circuit, two have been at least average--Charles Clark of Mississippi and Paul Roney of Florida --but the others were G. Harrold Carswell and Ingraham. Still, that record is a bit better than John Kennedy's. One J.F.K. appointment to a district court in Mississippi was William Harold Cox, a college roommate of Senator Eastland's who had addressed blacks from the bench as "niggers." Writes Victor S. Navasky in Kennedy Justice: "No aspect of Robert Kennedy's attorney generalship is more vulnerable to criticism" than his appointments to the Southern courts. On the evidence thus far, the Nixon Administration is earning a more positive appraisal.

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