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Clinton to Put His Own Stamp On US Courts

A high number of open judgeships gives the president a chance to reverse GOP's legacy

AFTER 12 years in office, Republican presidents' judicial appointments dominate federal courtrooms - from the Supreme Court to the 12 appellate circuits to hundreds of district courts around the country.

But President Clinton has a greater opportunity than most new presidents to make significant inroads to change the legacy he inherits.

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He is likely to take advantage of that opportunity to reverse or modify the conservative direction that Presidents Reagan and Bush gave to the federal bench.

The last Democratic president, Jimmy Carter, never had a chance to name a Supreme Court justice. Two in one term would be above average for a president of either party.

President Clinton already has one Supreme Court vacancy to fill after the retirement last month of Justice Byron White. In addition, Justice Harry Blackmun has hinted he will step down soon, while unsubstantiated rumors circulate that Justices John Paul Stevens, William Rehnquist, and Sandra Day O'Connor are also contemplating retirement.

Clinton is expected to name Justice White's replacement in about a month. New York Gov. Mario Cuomo (D) wrote to Clinton Wednesday in order to withdraw himself from consideration for the nomination, but he and Justice Blackmun are the two models Clinton has offered for what he wants to see on the bench. Blackmun wrote the majority opinion in Roe v. Wade, which struck down laws outlawing abortion.

But although the Supreme Court attracts most of the public attention, hundreds of lower-level federal judgeships are nearly as important - and some might argue more important - to the dispensing of justice.

While the Supreme Court has cut its caseload to around 150 cases a year, the district courts are "the forums of last resort for tens of thousands of cases every year," notes Nan Aron of the liberal Alliance for Justice.

"Obviously, most things rest there," says Charles Fried, Harvard University law professor and United States solicitor general during the Reagan administration. "The Reagan-Bush people thought it was very important."

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As of April 1, 97 out of 649 US district court judgeships and 18 out of 179 appellate judgeships were vacant. In addition, the Judicial Conference of the Administrative Office of US Courts has recommended creating 24 new judgeships to help carry expanding caseloads.

"So Clinton starts out with sort of a windfall," says Robert Carp, a University of Houston political scientist who has studied the decision-making patterns of federal judges.

The impact of a president on the judiciary lasts for at least two decades after he leaves office, according to a study by University of Massachusetts political scientist Sheldon Goldman in a forthcoming Judicature Journal.

The Bush and Reagan legacies are especially deep. More than 3 out of 4 federal judges are now Republican appointees. On the Supreme Court, only Justice White was appointed by a Democratic president - John Kennedy.

The Bush and Reagan federal judges are more conservative than President Carter's ap-pointees on the most controversial issues of the day, race and privacy. In a computerized scan of district court opinions, Professor Carp found that Carter judges' decisions were liberal 53 percent of the time in civil rights cases - meaning that they were more likely to rule in favor of the plaintiffs in race-discrimination cases. By comparison, Reagan judges were 31 percent liberal, Bush judges 23 percent.

At the appellate level, the Reagan judges were somewhat more conservative than the Bush judges, but both were well to the right of Mr. Carter's appointees.

"These were the criteria on which they were picked, and they delivered," Carp says.

Much of the power of the district judges lies in their discretion to determine matters of fact, which are generally not subject to appeal. Appellate judges affirm lower-court rulings 90 percent of the time.

In picking judges, Clinton has shown special concern over the racial and ethnic composition of the judiciary.

Just days before the 1992 election, then-candidate Clinton published an opinion piece in a law journal alleging that President Bush's judicial appointments showed "a sharp decline in the selection of women and minority judges."

Clinton was at best half right. Bush appointed more women to the federal bench than any president in history, including Carter, the previous recordholder. But Carter appointed nearly twice the percentage of ethnic minority judges.

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