How Sen. Percy exercises prerogative in nominating judgeship candidates

NOT THE LEAST of the many reasons why lawyers become active in political parties is that this is customarily how lawyers get to be judges. Party leaders, workers, retired officeholders and other useful people are thus rewarded for their service. Lifetime appointments to the federal bench are especially prized patronage for the party in control of the White House. Technically, federal judges are nominated by the President and confirmed by the Senate. Over the years this has devolved into a congressionally satisfying arrangement whereby judges are nominated by senators who are affiliated with the President's party, with the advice and consent of the Justice Department.

Percy's novel policy
Unfortunately for the senators, there are always many more politically deserving judgeship candidates than there are vacancies. Since the death of Sen. Everett Dirksen in 1969, the lone Republican senator from Illinois, Charles H. Percy, has followed a novel policy of selecting professionally recommended lawyers and state appellate court judges who were not associated with his election campaigns and most of whom were not even known to him personally. The bar associations and other lawyer organizations were given an early role in the choice of names for vacancies on the U.S. district courts in the state and for the Illinois positions on the 7th Circuit Court of Appeals. Most were Republicans, but two appointees to the Northern District had been active Democrats — Prentice Marshall, once a Democratic candidate for the state legislature in DuPage County, later a law professor at the University of Illinois; and George Leighton, a former Democratic ward committeeman in Chicago, later a state appellate judge. One of Percy's politically inexplicable choices for the 7th Circuit — John Paul Stevens— was advanced to the Supreme Court later.

During the Democratic years, judicial appointments were a constant source of strain between then Sen. Paul Douglas and the Democratic organization in Cook County. Judge Joseph Sam Perry, who is still a federal district judge, told a bar group years ago how he got the job: he "put all [his] money on the nose of a future senator (Douglas); and he was careful not to be on the top of the list of aspirants so that he would be available when the others "got shot off — and I helped shoot them off, too." Percy sensed that the only way to avoid making enemies of disappointed aspirants was to base the selection strictly on professional merit. "It's just like searching for a new executive vice president for Bell & Howell," explains the former chairman of the company. "It takes a lot of time, but now the interest groups know there is no way of pressuring me on these appointments."

Bipartisan cooperation desired
Whenever judicial reform is discussed, the question is properly asked whether bar association politics is necessarily any purer than partisan politics. When a vacancy occurs, Percy turns to two sources for names: one, an informal committee of friends whose judgment, political and otherwise, he trusts; the other, the various bar groups. After the bar association reduces the list to about a half dozen names, Percy may remove a couple himself. Then the three or four names are sent back to the bar association for formal review. Democratic Sen. Adiai E. Stevenson also is consulted. Senate tradition allows a senator of the other party to block any judicial appointment in his state found to be "personally obnoxious," so some bipartisan cooperation is desirable.

Besides Stevens, the Percy system has produced several other judges who are generally respected for their talent and integrity, qualities which have been sometimes lacking in earlier appointees.

If there is a weakness in the process, it is that the legal fraternity, which acts as a screen, tends to represent disproportionately the influence of the large LaSalle Street corporate law firms. Two of Percy's most distinguished judges were once associated with the same establishment firm, Jenner & Block. Not illogically, Percy's standards correspond with his Republican businessman's vision of achievement. He can tell a delegation of Italian-Americans, as he did, that there no longer are "ethnic seats'" on the court in Chicago, knowing that the ethnic vote is not crucial to his job security.

His first 16 judges included no women. Having committed himself to an uncompromising policy of naming the best available person, Percy insists that he will not deviate to please either racial minorities or women. He could have scored public relations points by yielding to pressure and picking Jewel Stradford Lafontant, a black woman from Chicago who is a deputy solicitor general in the Justice Department. She is an attractive Republican, but Percy's consultants gave her low grades on legal ability. Until a woman who is better qualified than any available man is proposed, Percy says there will be no women federal judges nominated by him. Leighton, his first black judge, is in his 60's, older than most of Percy's nominees. Himself a non-lawyer, Percy concedes that the legal profession can be narrow-minded about whom it praises and whom it blackballs. In the future he says he would like the pool of names broadened so that a more diverse mixture is available for evaluation and comparison. ˛

April 1976 / Illinois Issues / 31