G346

Nearly eight years after President Clinton pledged to appoint more minorities and women as federal judges, the bench is more diverse than ever: 15% of the judges are minorities and 20% are women, up considerably from 1993.

However, the numbers mask an appointment system that continues to favor white men significantly and is so dominated by politics and paybacks that minority nominees are twice as likely to be rejected as whites.

A review of Clinton's nominees reveals that though he has diversified the bench more than any other president, the nomination process -- flowing from the Democratic White House to the Republican- led Senate -- has become a political meat grinder, especially for African-Americans, Hispanics and women:

* 48% of Clinton's 374 picks have been women or minorities, compared with 28% by George Bush and 14% by Ronald Reagan.

* But 35% of Clinton's minority nominees have not been confirmed by the Senate, compared with a 14% failure rate among whites, says Citizens for Independent Courts (CFIC), a non-partisan group.

* On average, it takes about eight months for minorities and women to get through the confirmation process; the average for white men is five months, according to a CFIC study of the 1997-98 congressional term and a USA TODAY review covering 1999-2000.

"It does seem to me that there is a problem," says Mickey Edwards, a former Oklahoma congressman who is a Harvard professor and co- chairman of CFIC. "Being a Republican and knowing some of these people in Congress, it's hard for me to argue there is racism involved. But it demands explanation."

Senators have granted Clinton few favors on such appointments. They are open in their dislike for the president and determined to make the federal bench more conservative. They also recall how a Democrat-led Senate shot down conservative Supreme Court nominee Robert Bork in 1987.

Recently, some Republicans hoping for victory in this fall's presidential race have further slowed a process that already is marked by unprecedented delays. The 852-judge U.S. system has 62 vacancies, and 37 nominations are pending.

Meanwhile, a White House distracted by scandal hasn't always rallied behind its nominees when they have come under fire. And at times, the president has chosen controversial candidates who, from the start, faced big hurdles.

Caught in the middle have been dozens of nominees who represent the changing face of America, where minorities now make up more than a quarter of the population and are projected to almost equal the number of whites by mid-century. They are nominees such as Enrique Moreno, 44, who was born in Mexico, grew up in El Paso, went to Harvard law school and returned to Texas to practice.

Moreno's nomination to the 5th Circuit Court of Appeals last year was derailed by Texas' two Republican senators, who say a panel of lawyers they set up to examine judicial candidates deemed Moreno unqualified. Sens. Phil Gramm and Kay Bailey Hutchison say Moreno, who has never been a judge, lacks the experience needed for the federal appeals bench.

However, advocates for Moreno say that the senators are motivated by politics and that the lawyers' panel, under the guise of checking Moreno's qualifications, seemed more focused on whether he would follow conservative doctrine if confirmed. Many of its questions to Moreno concerned affirmative action, which he has supported and many Republicans oppose.

The Moreno case has become an issue in the presidential campaign, at least in the Southwest. Vice President Gore, the Democratic presidential nominee, has vowed to continue Clinton's efforts to diversify the bench and has expressed support for Moreno.

Democrats cite Moreno's situation in arguing against the campaign of Republican Texas Gov. George W. Bush. They say Bush, if elected, would be part of a conservative effort to reshape the nation's courts and strike down affirmative action, abortion rights and other policies the GOP opposes. Bush, though expressing admiration for conservative Supreme Court Justices Clarence Thomas and Antonin Scalia, says he would apply no such litmus tests in nominations.

Civil rights activists blame the GOP for the relative difficulty that minorities and women face in judicial nominations. "We're hearing a lot from both (presidential) campaigns about how much they want to reach out to the Latino community," says Marisa Demeo, regional counsel of the Mexican American Legal Defense and Educational Fund. "But right now, the leadership of the Republican Party, those who are controlling the Senate, haven't followed through. Mr. Moreno is an example of that."

Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, answers such complaints by pointing to the record number of minorities who have been approved for federal judgeships in the past few years. Hatch, whose panel reviews nominees for the Senate, accuses Democrats of "race-baiting politics."

"No nominee is being denied the chance to serve as a federal judge because of his or her race or gender," he says.

Meanwhile, Sen. Patrick Leahy of Vermont, the committee's ranking Democrat, accuses no one of discrimination but calls Senate delays in considering dozens of judicial nominations a "badge of shame."

A bench 'more like America'

Judges on the federal bench are appointed for life and can be a president's most enduring legacy. Conservative judges appointed by Reagan and Gov. Bush's father over 12 years generated a seismic shift in the law to the right and resulted in courts more reluctant to deal with issues such as prisoners' rights and racial discrimination.

Most attention is focused on the Supreme Court, but the real action is in the lower two tiers of the federal system. District court judges conduct thousands of trials annually and, a step up the ladder, judges in 13 regional circuit courts resolve most of the nation's appeals. (The Supreme Court hears only about 75 cases a term.)

Civil rights advocates have long sought more diverse courts to instill confidence among blacks and Hispanics in the system and help eradicate negative stereotypes about minorities among whites.

Clinton vowed to make the bench "look more like America." He stresses that the appeals court for the 4th Circuit covering five states in the Mid-Atlantic has a larger percentage of black residents than any other circuit -- about 25% -- and yet the court is all white.

The Constitution gives the president the power to appoint judges with "the advice and consent of the Senate," so the process always has been political. Before Clinton, however, most disputes were over Supreme Court nominees and a rare appeals court candidate. Last fall, Ronnie White, 47, an African-American justice on Missouri's Supreme Court who was up for a federal trial court post, became the first judicial nominee to be rejected on the Senate floor since Bork.

Most nominees who draw serious objections do not clear the Judiciary Committee, but it was only after the panel approved White that Missouri's GOP senators and police groups rallied against him.

Sen. John Ashcroft, R-Mo., who led the case against White, said the state judge was "pro-criminal" and had voted to reverse convictions in several capital cases. White's supporters countered that he had voted to uphold the death penalty in the vast majority of such cases.

The Senate's most conservative members consistently have played a leading role in blocking minority nominees; Hatch, Ashcroft and other key Republicans reject any suggestion that race is a factor.

In the 4th Circuit, Clinton twice has nominated black North Carolina lawyers, only to have Sen. Jesse Helms, R-N.C., block the nominations. Helms says that 15-member appeals court, which has four vacancies, doesn't need any more judges. Helms cites a letter from the chief judge of that legendary conservative court, J. Harvie Wilkinson, that says any new judges would make the court less efficient.

Clinton recently tried to spread the blame beyond Helms: "For over seven years now, (Helms) has stopped my attempts to integrate the 4th Circuit, and the Republican majority (in the Senate) has made no move to change the tide."

Complaints called 'ludicrous'

Sen. Jeff Sessions, R-Ala., captained the opposition to Richard Paez, 53, a Hispanic whose nomination to the 9th Circuit Court of Appeals languished in the Senate for a record four years. He called Paez a liberal activist who is "hostile to law enforcement." Supporters of Paez, who in 1994 had become the first Mexican- American on Los Angeles' federal district court, said his record was distorted.

Sessions was chosen for a trial court seat in 1986, but Democrats who then led the Judiciary Committee refused to send his nomination to the full Senate. His critics said he was unqualified and had made racially insensitive remarks.

Sessions, elected to the Senate in 1996, says he isn't bitter and actually is sympathetic to nominees.

"The idea that there has been some obstruction of Clinton's nominees is ludicrous. If there's any bias regarding minorities, it's a reluctance to oppose," he says.

In March, amid escalating pressure from civil rights groups and Democrats, the Senate finally confirmed Paez for the 9th Circuit seat.

Minority Leader Tom Daschle, D-S.D., says the case shows many of the inequities in the system. "I don't know how (senators) tell anybody who has had to wait for more than three years that this system is fair," he says. "I don't know how members tell the Hispanic community we are being as fair with them as we are with all non- Hispanic judges."

Paez's confirmation came with that of fellow Californian Marsha Berzon, 55, a labor lawyer who was nominated in 1998 and supported by her state's Democratic senators, law enforcement and women's rights groups. Berzon had been held up by conservatives who called her too liberal. Two other women nominated to federal courts in California, Seattle lawyer Margaret McKeown for the 9th Circuit and Los Angeles attorney Margaret Morrow for a trial court, came under similar fire and waited nearly two years to be confirmed.

Democrats have contributed to the delays. Besides being slow to defend some nominees, the White House has selected some minorities whose backgrounds made them long shots for confirmation.

After Clinton chose Frederica Massiah-Jackson, 49, a local judge in Philadelphia, for a federal district court post in August 1997, state prosecutors and Senate Republicans pointed to instances in which she had used profanity on the bench and reportedly exposed undercover police officers in the courtroom. Massiah-Jackson, who would have been the first black woman on the U.S. District Court in Philadelphia, asked Clinton in March 1998 to withdraw her nomination. She said at the time that she was a victim of politics.

There's also an enduring sense of retribution among many Republicans, who say Bork was vilified for his conservatism and other GOP nominees were slapped around when Democrats ran the Senate.

"We still have not moved away from the Bork issue," says Barbara Perry, a political scientist at Sweet Briar College in Virginia. "It is more highly politicized than ever." She says that when partisan sniping over nominees occurs, women and minorities are less likely than white men to have someone in the Senate leadership ready to shepherd their nomination.

"If you don't have a sponsor in the Senate to lead the interference, it's very difficult," says Jorge Rangel, 52, a Corpus Christi, Texas, lawyer who asked Clinton to drop his nomination for the 5th Circuit in 1998 after 15 months without Senate action. Rangel's nomination wasn't pushed by Texas' senators, and the White House, then preoccupied with the Monica Lewinsky scandal, wasn't much help.

"Our judicial system depends on men and women of goodwill who agree to serve when asked to do so," Rangel wrote Clinton then. "But public service asks too much when those of us who answer the call are subjected to a confirmation process dominated by interminable delays."

Senators shape the courts

The saga of Moreno, whom Clinton chose after Rangel's withdrawal, reflects the control that senators wield and the extent to which politics shape the judicial branch.

For nominees, the first step in winning confirmation is an endorsement from their own state's senators. This longstanding bipartisan tradition allows a lone senator to block a nominee.

The Senate Judiciary chairman will not hold a nomination hearing unless the home state senators submit a blue sheet of paper endorsing the nominee. Senators can stall the process simply by not returning the "blue slip."

Moreno, who specializes in labor law and personal injury disputes, received the American Bar Association's top rating of "well qualified" after Clinton nominated him nearly a year ago.

Last spring, Gramm and Hutchison asked Moreno to meet with the lawyers' panel they use to screen nominees. During the panel's private session with Moreno, the lawyers asked him his positions on subjects such as the death penalty and abortion, says a lawyer who was there. They dwelled on his views on affirmative action, a sensitive topic nationwide and particularly in the 5th Circuit, where the appeals court in 1996 struck down an admissions policy at the University of Texas designed to encourage racial diversity by giving preference to blacks and Hispanics.

Gramm and Hutchison say 10 of the panel's 28 lawyers found Moreno unqualified, five backed him and the rest -- some of whom were unable to meet with Moreno -- offered no definitive opinion. The senators told Hatch to drop Moreno's nomination.

"The committee is a way of dodging . . . when the senators do not want" a nominee, says Rep. Silvestre Reyes, an El Paso Democrat who supported Moreno.

Reyes says the senators told him Moreno would be viewed more favorably if this weren't an election year in which the GOP could retake the White House.

"They acknowledged to me that he would be looked upon in a better light if the nomination were withdrawn and made next year, if Gore won," Reyes says.

Both senators say they never suggested that, and they reject the notion that Moreno was unfairly targeted. They note that they have backed other Hispanic nominees.

But in a letter to a Texas lawmaker, Gramm suggested that politics was a factor. He noted that in 1992, another presidential election year, the Democrat-led Senate had spiked GOP nominees.

Moreno, who still hopes his nomination might be revived, says only that he was happy to have been chosen: "I am especially grateful and proud of my community's support for my nomination."