WASHINGTON -- President Clinton has struck an extraordinary bargain, agreeing to nominate a prominent conservative selected by a Republican senator to an important appeals court post, in exchange for the confirmation of one of his nominees to the same court, Senate and administration officials said yesterday.
In exchange for nominating the Republican choice, Judge Barbara Durham, the current chief justice of the Washington state Supreme Court, to the 9th U.S. Circuit Court of Appeals in San Francisco, the Republicans agreed to stop blocking the nominations of several Clinton nominees, including that of Professor William Fletcher.
For more than three years, Senate Republicans have steadfastly refused to act on the nomination of Fletcher, 52, a longtime Clinton friend who teaches at the law school of the University of California at Berkeley.
But Fletcher now appears headed for confirmation as a result of Clinton's private agreement to nominate Durham, 55. The officials said that Clinton had made the deal largely with Republican Sen. Slade Gorton of Washington, who insisted that the president nominate Durham.
Durham has been called the most conservative state Supreme Court judge in Washington by some state newspapers.
Republicans, who control the Senate calendar because they are in the majority, have told the White House that they would allow a vote on Fletcher's nomination only after Clinton publicly nominated Durham. The White House has already begun preparing for Durham's formal nomination, asking the FBI to complete a routine background check on her.
Though the process of nominating and confirming judges is rife with politics and trade-offs, the Clinton-Gorton arrangement is highly unusual. A senior administration official acknowledged that Durham would never have been considered a suitable nominee by the administration if not for the eagerness to have Fletcher confirmed.
The official, who insisted on anonymity, also said the agreement explicitly cedes to Gorton the authority to choose an appeals court nominee. For two decades, Democratic and Republican presidents have said they would not share that authority.
Traditionally, presidents allow senators to have a role in selecting lower-level U.S. District Court judges, who conduct trials. In many states such as New York, where the two senators are from different parties, the senators divide the prerogative to choose federal District Court judges, no matter which party controls the White House.
But Gorton has been preaching to fellow Republicans that they should use their majority in Congress to win a bigger role in choosing nominees to U.S. appellate courts.
To force the issue in Washington, Gorton has successfully blocked the confirmation of all judicial nominees from the state of Washington, as well as that of Fletcher.
A senior administration official, who insisted on anonymity, dismissed the idea that other Republican senators might emulate Gorton and insist on choosing nominees for federal appeals courts. Clinton has nominated 14 candidates to fill the 23 vacancies on those courts.
But throughout his tenure, Clinton has shown little willingness to challenge the Republican Senate on judicial choices. He has chosen largely moderate candidates and been quick to withdraw nominees when there was a hint of opposition in the Senate.
Len Schroeter, a prominent Seattle lawyer, said that Durham was regarded by the state bar as a reliable conservative who regularly sided with the government against defendants in criminal cases, and in favor of big business. "This is not someone you would think could ever be named to a federal appeals court seat by a Democratic president," he said.
Jim Kennedy, a White House spokesman, declined to comment on whether Clinton planned to name Durham to the federal appeals court.
He said that the White House has worked closely with Democratic Sen. Patty Murray of Washington and she has worked with Gorton "to ensure that both the District Court vacancies in Washington and the numerous vacancies on the 9th Circuit are filled expeditiously."
As part of the pact, Fletcher's mother, Judge Betty Binns Fletcher of the 9th U.S. Circuit, has agreed to step aside, becoming a semiretired judge.
Fletcher's nomination was initially held up by Republicans who said it would violate a 1922 anti-nepotism law to have a mother and son on the same court. Judge Fletcher offered to become a senior judge to solve that issue. Durham will be nominated to fill her seat.
Pub Date: 5/05/98