DATE: Monday, November 17, 1997             TAG: 9711150037
SECTION: LOCAL                   PAGE: B11  EDITION: FINAL 

TYPE: Opinion 

SOURCE: Ann Sjoerdsma 

                                            LENGTH:   87 lines

FEDERAL JUDGE'S LONG LIE MAKES HIM UNFIT NO MATTER HOW EXEMPLARY WARE'S LEGAL RECORD IS - AND IT APPEARS TO BE UNIFORMLY RESPECTED -HIS MORALS RECORD IS FATALLY FLAWED...HE HAS BETRAYED THOSE WHO TRUSTED HIM.

Since at least his Stanford Law School days in the early 1970s, U.S. District Court Judge James Ware, 51, has told the story of his 13-year-old brother Virgil's slaying by teen-age white supremacists in Birmingham, Ala.

It happened on Sept. 15, 1963, mere hours after four little black girls were killed in the notorious Ku Klux Klan bombing of the 16th Street Baptist Church.

So often has the San Jose judge told the story in speeches and interviews that it became the core of his public persona: He was a civil-rights survivor who drew triumph from tragedy.

According to Ware, he and Virgil had sneaked out of church to play football and were riding on a bicycle - Virgil perched on the handlebars - when the fatal shooting occurred. The grievous loss ``molded'' him, he said, ``into a person who was hungry for justice.''

Ware has spoken in heart-stopping detail of Virgil dying in his arms in a ditch by the road.

But the story was a lie. At least, it didn't happen to this James Ware.

A 13-year-old named Virgil Ware was killed by white racists 34 years ago while riding a bicycle with his brother James; but that James Ware is now a 50-year-old maintenance worker at a Birmingham coal-processing plant.

Judge Ware grew up in Birmingham, knew of Virgil's slaying and appropriated it for his own use. For inspiration, some say. I say for self-aggrandize-ment.

The question now is, what price should Ware pay for his lie? There are those who believe he has already paid enough. I don't agree.

Until recently, Judge Ware was a nominee for the San Francisco-based 9th U.S. Circuit Court of Appeals, a Clinton appointment considered a shoo-in. A lifelong Republican, he was appointed to his current seat in 1990 by President Bush, but he switched his political allegiance last December to get the appellate nod. It came in June.

Ware sailed through one Senate Judiciary Committee hearing. Then on Nov. 6, the Birmingham News exposed his longtime lie, and Ware promptly withdrew his nomination, issuing a rambling written statement and ``apology'' that only aggravated the offense.

Ware's downfall came at the hands of black U.S. District Judge U.W. Clemon of Birmingham, a former civil rights lawyer who had long doubted his story. Clemon's suspicions were confirmed by a retrospective about Virgil Ware's slaying that ran in The Birmingham News Aug. 4. When Ware didn't admit the lie, Clemon went to his congressman, fellow judges and Virgil's true brother.

In his statement, Ware tried to pass off the lie as a confusion of family facts, like a false memory. Since then, he has met with the Birmingham James Ware in Alabama, and apologized.

Judge Ware would very much like his lie to fade away. He has shown no sign of giving up his lifetime seat on the lower federal court. And no one - black or white - is calling for his resignation. A racial hot potato, this one.

But it would be criminal to allow Ware to remain on the bench. For no matter how exemplary Ware's legal record is - and it appears to be uniformly respected - his moral record is fatally flawed. Ware has lived a lie that fundamentally altered people's perceptions of him. He has earned trust and respect that he might not otherwise have earned. And he has betrayed those who did trust him.

When caught in the lie, he compounded it with more duplicity.

Just who is James Ware?

Each time Ware told his story, he denied the life - and the grief - of the Birmingham James Ware and his family. He also denied his own success, which lacked civil-rights ``mystique.'' Ware rose to the top by being an academic and oratorical standout, doing good works, and currying Republican favor.

Ware probably has not committed an impeachable offense: He reportedly did not lie to the Senate committee. (It is unclear what he might have told the FBI in a background check.) But he has been dishonest, opportunistic and manipulative.

Some of Ware's African-American supporters have minimized his lie by calling it ``folklore.'' The lie, they say, served as a ``teaching tool'' to inspire young black lawyers. A parable.

Such rationalization only encourages hypocrisy.

In his statement, Ware wrote: ``I am deeply committed to the cause of civil rights, and do not wish to be seen . . . as using the unfortunate tragedy which befell Virgil Ware as trying to better myself at someone else's expense.''

But this is precisely as he should be seen; and the ``expense'' he exacted goes beyond one family's anguish to a nation's. Judge James Ware should resign. Immediately. MEMO: Ann G. Sjoerdsma, an attorney, is an editorial columnist and book

editor for The Virginian-Pilot.

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