THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, March 31, 1996 TAG: 9603290008
SECTION: COMMENTARY PAGE: J5 EDITION: FINAL
TYPE: Opinion
SOURCE: PERRY MORGAN
LENGTH: Medium: 72 lines
Although his aides once touted his prowess as a teacher of constitutional law, Bill Clinton can bumble with the worst in representing it to the public.
When one of his appointees, federal Judge Harold Baer, made a shocking pretrial decision in a New York drug case, the White House signaled that it might ask for his resignation. Never mind that federal judges are appointed for life to shield them from political passions of the moment and that the judiciary's own check-and-balance system provides for re-hearings and appeals of rulings. This is an election year, and the concept of an independent judiciary apparently has to yield to partisan infighting.
Eager to claim law-and-order laurels, both parties are mining court records for evidence that Reagan or Bush or Clinton appointed judges who made softheaded or wrongheaded decisions on hot-button issues. A Democratic Senate approved Reagan and Bush appointees, and a GOP Senate is confirming Clinton's, but never mind that as well. The prize sought by both sides is the right stuff for an attack commercial making the other side look soft on crime.
Bob Dole is already thundering that Judge Baer ought to be impeached but, interestingly, his fellow partisans in the House haven't made a motion, and none is expected. Who wants a trial to delay the posse? And who wants Democrats, also omitting context, to begin citing what appear to be bizarre rulings by Reagan and Bush appointees? There's an ample supply.
Now, indeed, Judge Baer did invite lightning. He dismissed as evidence in a drug case 80 pounds of cocaine and heroin police took from the trunk of a car whose driver confessed to hauling dope. But police had no probable cause to stop and search the car just because they'd seen four men fleeing after putting bags in the trunk. This was so, said the judge, because flight from police was not suspicious behavior in a neighborhood where police had a reputation for violence and corruption. On its face, this seemed absurd.
New York Mayor Rudolph Giuliani, a Republican and former prosecutor, scorned the ruling but forthrightly defended as able and conscientious the judge who made it. But when congressional Republicans howled, the White House ignored the obvious remedy of appeal and hinted that it, too, might want the judge's head. When this stand brought countercriticism from bar associations, the White House backed around to a principled position that ``the proper way for the executive branch to contest judicial decisions with which it disagrees is to challenge them in the courts.''
Those words, uttered at the outset, would have merited applause for sense and courage. Coming as just another grab for the political windsock, they show a party ever fearful of being tagged as lily-livered. Clinton has worked very hard to beat this rap - pumping out money to hire more police, toughening sentencing, demanding bans on street-sweeper weapons that can give criminals an edge over officers and, whenever possible, posing with people wearing uniforms - police, military, whatever.
Moreover, as Linda Greenhouse points out in The New York Times, he has been very cautious in his selection of judicial nominees. Of 53 chosen by the administration in 1995, almost half (like Judge Baer) were former prosecutors. And almost 70 percent of Clinton nominees have received the highest rating of the American Bar Association compared with 52 percent of the judges named by Bush and 53 percent named by Reagan.
This record, one might think, ought to immunize the president against a panic attack when one among thousands of judicial rulings made every day comes across as daft. And one might think as well that the professorial instincts of a student of the Constitution would wish to put perspective ahead of pandering. But, then again, Clinton never stays long in any one position; he wants to go the way the wind is blowing. In fairness, that's the way the game is played, but Americans have had presidents who, from time to time, took risks in order to express convictions. MEMO: Mr. Morgan is a former publisher of The Virginian-Pilot.
by CNB