To The Bench Via the Chair

By Richard Lacayo

IN THE 1950S AND EARLY '60S, THE most bloodcurdling years of the civil rights movement, a great Southern judge, and there were not many of them, needed not only wisdom and fairness but a lot of nerve. Which is why Frank Johnson, a federal district judge who was equipped with all three, emerged as one of the heroes of that era. After the Eisenhower appointee declared that the segregated buses of Montgomery, Alabama, were illegal, his mother's house was partly destroyed by a bomb that was apparently meant for him. Undaunted, Johnson went on to apply Supreme Court antidiscrimination rulings to resentful state institutions.

When Johnson announced his retirement last year from the 11th Circuit Court of Appeals, which covers Alabama, Georgia and Florida, the White House came up with an unlikely replacement: Edward E. Carnes, 41, Alabama's assistant attorney general in charge of pursuing death-penalty cases. And pursue them he does. Carnes wrote Alabama's death-penalty law, which allows judges to impose the death penalty on convicted killers even when juries have opted for life in prison. He led a national effort by state attorneys general to curb the opportunities for death-row prisoners to appeal their cases before federal judges. People who don't much care for him -- they include many civil rights leaders and death-penalty opponents -- call him Dr. Death.

The Senate debate on the Carnes nomination this week promises to be the most contentious vote on a lower-court candidate in years. Despite the tough-sell symbolism of replacing Johnson, a civil rights legend, with a nominee best known for hustling inmates to the electric chair, Carnes appeared to be on a smooth course to confirmation before the question of racism in the justice system was illuminated by the fires of Los Angeles after the Rodney King verdict. Meanwhile, the Democratic dream of recapturing the White House moved from fond hope to real prospect. After 12 years in which the Reagan and Bush Administrations have filled three-quarters of all federal judgeships with mostly conservative appointees, some Democrats in Congress are now thinking twice about giving fast approval to the dozens of White House court nominees who await confirmation in what may be the waning days of the Bush presidency.

But Carnes has some important supporters, including both of Alabama's Democratic Senators, Richard Shelby and Howell Heflin. A powerful swing vote on the Senate Judiciary Committee, Heflin complains that Carnes' opponents "view this confirmation as being a referendum on capital punishment, although they deny it." In May, Heflin got the committee to send Carnes' name to the full Senate despite the opposition of the committee chairman, Delaware Senator Joe Biden, a fellow Democrat.

To the consternation of some black civil rights leaders, Morris Dees, the white Alabama civil rights lawyer famed for successfully fighting the Ku Klux Klan in court, is also in the nominee's corner, arguing that Carnes is not a racist but just a man who has capably pursued his duty as a prosecutor. The Harvard-trained lawyer has prosecuted two state judges for making racist remarks in court and has defended blacks in civil rights lawsuits.

But what bothers Carnes' critics is that his legal experience consists chiefly of having been an ardent defender of a system of capital punishment that they say is infected by racial discrimination. Carnes said during his April confirmation hearing that capital punishment was not applied in a racially discriminatory manner "in Alabama or in the nation" -- a view in keeping with the Supreme Court's own rulings, though one study after another has demonstrated that blacks who kill whites are far more likely to be sentenced to death than whites who kill blacks.

Lately the attacks on Carnes have widened to include his defense of instances in which prosecutors have resorted to the unconstitutional practice of using courtroom challenges to keep blacks off of juries in trials of black defendants. Rosa Davis, chief of the Alabama attorney general's appeals division, says it's simply Carnes' job to justify the actions of trial prosecutors when one of their convictions is challenged on appeal. "Our arguing for the state doesn't mean that we support racial discrimination," she insists, "any more than someone who represents a convicted murderer supports killing." But Carnes' public statements leave the impression of a man inclined to justify the tactic when it suits his purposes. "I am not convinced that Mr. Carnes fully appreciates that racial discrimination undermines the essential justness of verdicts and undercuts public confidence in our justice system," says Biden.

One irony of Carnes' situation is that if he is confirmed -- both sides were counting votes last week -- he won't get much chance to use his death-penalty expertise on the bench. Recently the Supreme Court significantly restricted the rights of death-row inmates to appeal their sentences before federal judges -- just as Carnes the prosecutor had wanted.

With reporting by Julie Johnson/Washington and Andrea Sachs/New York