Mediocrity on the bench


Washington -- AS PRESIDENT Clinton struggles to moderate his views on affirmative action, he is less than contrite about his federal court appointments.

"I've appointed more women and more minorities to the federal bench than my predecessors combined at this point in our terms," he boasted this month.

Unfortunately, his single-minded pursuit of diversity, combined with an eagerness to avoid controversy, has kept him from appointing the best available legal minds to the courts.

The judge-pickers under Ronald Reagan and George Bush, for all their ideological excesses, at least promoted a handful of dynamic legal thinkers: Richard Posner and Frank Easterbrook to the Seventh Circuit; Ralph Winter to the Second Circuit; J. Harvie Wilkinson to the Fourth; Alex Kozinski to the Ninth, and Robert Bork, Antonin Scalia, Douglas Ginsburg and Stephen Williams to the District of Columbia Circuit.

These judges have transformed the law by the force of their arguments.

But Mr. Clinton, a former professor of constitutional law, is not appointing liberal intellectuals who could challenge the conservatives.

The administration made a conscious decision to shy away from promising legal scholars.

Nearly 60 percent of the Clinton appointments have been minority members and women. This is a dramatic increase over the judicial legacies of George Bush, with 28 percent women and minorities; Ronald Reagan, 14 percent, and Jimmy Carter, 38 percent.

By and large, the Clinton nominees are competent; 65 percent were rated "well qualified" by the American Bar Association.

But while there are few embarrassments in the Clinton group, there are few standouts. They are largely a group of soldierly and obscure judges and prosecutors.

With the exception of Guido Calabresi, the former Yale Law School dean, Mr. Clinton has tapped no legal scholars with national reputations.

His appointments to two prominent appellate courts epitomize the pattern. The Seventh Circuit, in Chicago, is considered the scholars' court, and the president had been urged to appoint a leading liberal academic from the University of Chicago such as Cass Sunstein or Geoffrey Stone.

Instead, the White House is on the verge of tapping Diane P. Wood, a little-known professor of antitrust law at the University of Chicago, who is currently an assistant to Deputy Attorney General Anne Bingaman.

On the D.C. Circuit, traditionally the farm club for the Supreme Court, Mr. Clinton has not appointed liberal nominees of the caliber of Judge Bork and Justice Scalia.

When Chief Judge Abner Mikva resigned to become White House counsel, the administration was set to nominate the Health and Human Services Department's counselor, Peter Edelman, but backed away after he was criticized for his liberal views.

An obvious alternative would be Walter Dellinger, a respected constitutional scholar who is distinguishing himself as assistant attorney general. But Mr. Clinton now appears to be abandoning him because of opposition from Sen. Jesse Helms.

It is disappointing that the president is unwilling to risk a confirmation fight over lifetime appointments to the federal courts.

Instead of brandishing statistics about diversity, he should fill the remaining seats with candidates of the caliber of Ruth Bader Ginsburg and Stephen Breyer, his superb Supreme Court nominees.

Otherwise, he will leave office with a bench that appears superficially to be more diverse but whose intellectual leadership remains firmly under Republican control.

Jeffrey Rosen is legal affairs editor of The New Republic.

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