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Sitting Taller

June 15, 1986

For the better part of a year now there has been mounting controversy over the Reagan Administration's nominees to the federal judiciary. Every President is entitled to nominate people for the bench who share his political philosophy, but since Edwin Meese III replaced William French Smith as attorney general the caliber of the President's nominees has declined significantly.

As a result, the Republican-controlled Senate Judiciary Committee earlier this month rejected the nomination of Jefferson B. Sessions III to be a federal judge in Alabama. Before that, the nomination of Daniel Manion to the Court of Appeals in Chicago was voted out of committee without recommendation after first being turned down. The full Senate has yet to act on Manion, who is unqualified for the post and should be rejected.

The President's supporters in the Senate contend that the opposition to Sessions and Manion is based on ideology alone. Liberals, they say, are trying to block a conservative Reagan legacy in the federal courts. That is not true. There are many conservative lawyers who are eminently qualified to be judges. If they were nominated, they would be confirmed in short order. It is the demonstrated lack of competence of Sessions and Manion that makes them unfit for lifetime federal judgeships.

Two distinguished law professors with decidedly different political views have written a memo for the Judiciary Committee spelling out a standard of high legal ability that judicial nominees should be held to. Philip B. Kurland, a conservative at the University of Chicago Law School, and Laurence H. Tribe, a liberal at the Harvard Law School, wrote to the committee, "Senators have a duty . . . to ensure that the President's nominees have the experience, the talent, the intellectual acumen and the fairness of mind to perform their functions.

"No President has a right to treat federal judgeships as mere patronage appointments simply to reward friends or to assure a judiciary packed with 'true believers,' " they wrote. "Confirmation (is not) in order when the best that can be said of a nominee is that he has spent some time in law or public life and is untainted by any major scandal."

Of course, reasonable people can disagree about what constitutes competence and what traits one should look for in a judge. But by virtually any standard Manion fails. He has practiced law in Indiana and served in the state Legislature there, but his major claim to fame was his regular participation on a political radio show hosted by his father, Clarence Manion, a founder of the John Birch Society. On occasion he has suggested that the Supreme Court be ignored.

Manion has little experience practicing in federal court. He has never argued a case before the appellate court to which he has been nominated. He has rarely handled complex cases involving constitutional, antitrust, civil-rights or criminal law, which make up a large portion of the cases heard on appeal. His record of legal scholarship is non-existent, and, judging by his briefs, his writing ability is poor. He would clearly be out of his depth on one of the country's second-highest courts.

Kurland and Tribe have crystallized the standard that judicial nominees should meet. The federal courts hold great power, and the country has a right to expect that the judges who exercise it have great skill. Ideology should play no part in the Senate's deliberations. Ability is what matters, and incompetents should be rejected whether conservative or liberal.

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