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Packing the Circuit Courts


The U.S. courts of appeals are as influential as they are unknown. Many of their decisions are as much constitutional and statutory policy statements as they are determinations of guilt or innocence. The overwhelming majority of their decisions are never appealed. They are binding on trial court judges in their circuits. Therefore, the makeup of these courts is almost as important as the makeup of the Supreme Court. Yet seldom do senators go to the same lengths to block appeals court nominees as they do to resist philosophically incompatible nominees to the Supreme Court.

Reagan-Bush nominees still constitute a minority on the Supreme Court (four new members out of a total of nine). But Reagan-Bush nominees soon will be in the majority on nine of the 12 circuit courts of appeals.

The Fourth Circuit, which includes Maryland, is an exception, but barely: in a few months seven of its 15 members will be Reagan-Bush appointees. The other exceptions are the West Coast's Ninth Circuit and the important Eleventh Circuit of the Southeast. It is important because so much civil rights law is determined in cases there. Thus, nominees to the Eleventh Circuit deserve special scrutiny by the Senate's liberal Democratic majority on the Judiciary Committee, especially in the area of civil rights law and theory.

President Bush has nominated for an Eleventh Circuit judgeship a very conservative Reagan District Court appointee in Florida, Kenneth L. Ryskamp. Judge Ryskamp has the by-now routine liability of judicial nominees of having belonged to a country club that excluded blacks and Jews from membership (and bans speaking any language but English on the premises). In his case, more than just the appearance of prejudice is an issue. His rulings as a district court judge may have been influenced by bias, according to some critics who have studied his record.

That is a very serious accusation. More evidence than just a statistical analysis of his rulings and reversal rate in civil rights cases will be needed to prove it. But because it is such a serious accusation, the Judiciary Committee has an obligation to look into it in detail. Democrats, by their inability to elect a president, may have forfeited their right to nominate federal judges, but as long as they control the Senate, they have a responsibility to keep truly unfit judges off the circuit courts.

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