POWER AND POLITICS LAW

HE LOOKS a little like a child playing dress-up, his earnest, smooth-cheeked boyishness clashing sharply with the somber black robes and weighty constitutional responsibility of his new job. Thanks to U.S. Senator Phil Gramm and President Reagan. 32-year-old Sid Fitzwater will soon become the youngest federal district judge in the United States. Despite a few qualms on the part of the American Bar Association, Fitz-water’s appointment sailed almost unopposed through the Senate, surprising a few Washington graybeards who sputtered about entrusting 200 years of American constitutional law to a curly-haired Texas whipper-snapper only nine years out of Baylor law school.

It’s a big job for Dallas” judicial whiz kid. Without receiving a single vote, U.S. District Judge Fitzwater will be potentially more powerful than all the U.S. congressmen elected by the 100 North Texas counties of his new jurisdiction-and he’s appointed for life. Not bad for a Young Republican activist who, after losing a spirited 1981 city council race against incumbent Max Goldblatt. was appointed at age 28 by Governor Bill Clements to become the youngest state district court judge in Texas.

As a U.S. district judge, Sid Fitzwater will have the authority to overrule the Texas Legislature and governor. At the stroke of his pen. he can countermand local city councils and county governments and assume direct control of local school districts, county jails, government programs and stale prisons. He can contradict the U.S. Army and Congress. Or, like U.S. District Judge John T. Sirica in 1973, he can tell the president of the United States what to do.

While some of U.S. District Judge Fitz-water’s rulings could affect the lives of millions, 90 percent of his decisions probably won’t affect anyone except the plaintiff and the defendant. Most of any federal judge’s workload consists of commercial cases: contract disputes between people and companies from different stales; copyright cases: corporate antitrust lawsuits. Federal crimes also will end up on Judge Fitzwatcr’s docket, ranging from dramatic FBI kidnapping cases, federal drug busts and Secret Service counterfeiting arrests to complicated securities violations and IRS tax cases.

Of the 400 to 500 cases the average lower-court federal judge handles each year, only a handful have the potential to become “public policy cases.” Most of these involve civil rights, government programs like Social Security or the thorny problems of government involvement-or non-involvement-in education, prisons, school busing or equal opportunity. “Pick a program and it’s been in federal court,” says Larry Neal, press secretary to Sen. Gramm. Fitzwater’s Capitol Hill patron.

In theory, the federal judiciary1 operates on an equal level with the executive and legislative branches of government. Historically, federal judges have taken responsibility for interpreting the U.S. Constitution, deciding whether the laws and programs of federal, stale and local governments are strictly constitutional. From the World War I-era decisions guarding free speech for American Communists to Brown vs. Board of Education, federal courts have tried to protect the constitutional rights of minorities-even when that means overruling the stated wishes of the majority. “Every major controversy in American history probably involved, at one point, a single federal judge sitting in trial court.” notes one Gramm aide.

During the expansion of federal programs and the rise of civil rights consciousness over the past 30 years, a nationwide trend of “judicial activism” swept the federal courts. Lower-court federal judges began using their constitutional authority to govern by interpretation, even to the point of assuming direct control of government agencies. The trend continues to this day: One noted activist. U.S. District Judge Arthur Garrity of Boston, took over a Boston-area school district and began approving, as The New York Times reported, “everything from the purchase of new basketballs to the transfer of a student.”



DALLAS, NEVER a hotbed of liberal activism, nevertheless has produced more than its share of activist federal judges, along with some landmark decisions on burning national issues. The most famous decision made by Fitzwater’s predecessors was Roe vs. Wade, in which three local judges held that women have the right to terminate their pregnancies. In other local cases, federal judges like William M. Taylor and Barefoot Sanders have determined whether children should travel by bus each morning to a racially mixed school across the city-and whether they can pray once they get there.

A federal judge may even decide what you can read in your local city magazine. “By addressing freedom of speech or media access under the Freedom of Information Act. federal judges affect what we read in the papers every morning,” says Harriet Miers, immediate past president of the Dallas Bar Association and a former clerk to chief federal Judge Joe Estes.

In criminal cases as well, a federal jurist’s ruling can dramatically affect society. Rulings by Judge Estes and other local federal judges regarding search and seizure and the rights of the accused set many of the rules that govern exactly how suspects are investigated, arrested and prosecuted at stale and local levels. When a defendant goes free on a “technicality.” it’s often due to a precedent set by the federal judiciary. “The State of Texas has rules patterned after the federal rules,” Miers says.

While most U.S. district judges are unknown to the general public, others, like the late Judge Sarah T. Hughes of Dallas, become national figures. The peppery Hughes was mentioned as a possible vice presidential candidate at the 1952 Democratic Convention, more than a decade before Hughes swore in Lyndon Johnson as president on the day of the Kennedy assassination. Her career typified the liberal judicial activism of the Sixties and Seventies; Hughes, of course, was the federal judge who decided that conditions in the Dallas County jail amounted to “cruel and unusual punishment” and unconstitutional violations of prisoners’ rights. Over the objections of local authorities, she told Dallas County taxpayers to fund construction of the $62 million Lew Sterrett Justice Center to meet her specifications.

Another activist federal judge. Carter appointee Jerry Buchmeyer of Dallas, made news in 1982 with his controversial ruling in Baker vs. Wade. In a case brought by Dallas gay activist Don Baker, Buchmeyer threw out the Texas law forbidding “deviate sexual intercourse” between persons of the same sex. According to Buchmeyer, the law made “criminals out of more than 700.000 individuals in Texas who are homosexuals, although they did not choose to be…. This is prohibited by the constitutional right to privacy (as well as equal protection under the law). ..” Last summer, the Fifth U.S. Circuit Court of Appeals reversed the Baker decision and restored the Texas sodomy law. From 1982 until 1985, however, the citizens of Texas operated under law made, not by their elected representatives in Austin, but by Jerry Buchmeyer.



THE GRANDDADDY of all Texas judicial activists is U.S. District Judge William Wayne Justice of Tyler. Through his handling of the Ruiz case in 1979, Judge Justice effectively ordered the revamping of the entire Texas state prison system with the bang of a gavel. Decrying the “unconstitutional climate of fear and violence” in Texas prisons, Judge Justice ordered the prison management system overhauled, then offered exact specifications for the new, more humane prisons he commanded Texas taxpayers to build. “Wayne Justice sees the Texas prison system as ’inhumane,’ so he sits down and writes-in effect-a statute,” wrote conservative columnist William Mur~ chison, associate editor of The Dallas Morning News and something of a local expert on the federal judiciary. “The judge whips out a tape measure. Cells must be this big; nothing less will do. Money? Let the taxpayer worry about that.” Justice was also the judge who recently ordered sweeping reforms in the state’s system for treating the mentally ill and retarded. He has since transferred the landmark case to Judge Sanders in order to devote more time to his prison reform efforts. Justice carries a backlog of almost 800 cases-twice the average for most Dallas federal judges.

Murchison, who calls Judge Justice “the uncrowned king of Texas,” also bemoans Judge Justice’s role in the controversial 1982 Texas redistricting lawsuit. In a decision later rebuked-but allowed to stand-by the U.S. Supreme Court. Justice and a three-judge federal panel threw out the Texas Legislature’s 1981 congressional reappor-tionment plan, which would have created new minority and Republican districts in Dallas County. But Judge Justice redrew the lines to favor white Democratic incumbents like U.S. Rep. Martin Frost. In a 2-1 decision, the court ordered Texans to elect their congressmen under a plan nearly identical to one drawn up by Frost and House Majority Leader Jim Wright-a plan that had been rejected by the State Legislature the year before. Despite the Supreme Court’s rebuke, the judges’ redistricting plan was allowed to stand for the 1982 elections to avoid further “chaos and confusion” in Dallas-area politics. The same plan was later adopted by the legislature after the election of Democratic Governor Mark White.

Now that they have their chance to appoint federal judges. Republicans have not forgotten the activism of Judge Justice and others. “William Wayne Justice has affected your life more than all the Dallas County state legislators and congressmen combined,” says U.S. Rep. Steve Bartlett, R-Dallas. a vigorous Fitzwater backer who saw the lines of his district change and change again by court order during his 18-month campaign for Congress in 1981-82. “When judges decide to make their own laws, the costs to the taxpayers can be enormous,” Bartlett said a few days after testifying before a Senate panel on Filzwater’s behalf.

But civil libertarians see what Bartlett labels “judicial tampering” as necessary protection of constitutional rights. Judicial activism is nothing more than “filling a vacuum,” says Dallas Civil Liberties Union President Stan Weinberg. “When local governments back off and refuse to do anything, who does carry out the remedy? To say you have a right but not offer a remedy, then you have nothing, just words on a paper.”



SID FITZWATER IS part of a new wave of conservative judges appointed by the Reagan Administration to reverse the 30-year trend of judicial activism on the federal bench. Republicans want to replace judicial activists with “strict construe-tionists,” their label for conservative judges who claim they will stick to the “original intent” the Founding Fathers had when they wrote the Constitution. Liberals counter by say ing that the Founding Fathers were only human and could not see the future. Madison and Hamilton predated the telephone by about 100 years: Who knows, liberals ask, what the Founding Fathers would have had to say about wiretapping?

“They talk about strict constructionism as though history never existed,” Weinberg argues. “A true strict constructionist wants to interpret the law in such a way that protects the civil rights of the individual. A true conservative wants to conserve the Constitution.”

Civil rights leaders accuse Reagan of trying to “pack the courts” with conservative idealogues who will reverse the progressive decisions of the Sixties and Seventies. They charge Republicans with trying to “politicize” the federal judiciary and the U.S. Justice Department. “They want judges who are activist in the other direction,” Weinberg sa>s. “Reagan is trying to do the same thing with the lower courts that Roosevelt tried with the Supreme Court. He’s trying to pack the court and put people on of an age so they’ll go on into the first quarter of the next century. It’s always bad to pack the courts, whether for Republicans or Democrats. What you pack today may not reflect the situation tomorrow.” However, at least one constitutional expert is unfazed by the Reagan push. “Every president has tried to pack the courts,” says Professor Charles Allen Wright of the University of Texas Law School, the nationally respected constitutional scholar who was President Nixon’s lawyer during the Watergate tapes case.

In their efforts to reverse 30 years of American judicial activism, Reagan and Attorney General Edwin Meese face a courtroom Catch-22. They want to appoint only non-activist, non-policymaking “strict con-structionist” judges, all chosen for their reluctance to let their cases make law, change policy or reverse past decisions. That means they are likely to let past precedents stand-including those precedents set by the judicial activists of the past three decades. Federal district judges only have awesome power if they choose to exercise it; judges like Fitz-water are chosen precisely because they are not likely to involve themselves in what conservatives call “government by judiciary.” When it comes to the federal judiciary, the meek have inherited the earth.

At most, all the new wave of conservative judges can do is to discontinue future judicial activism. “A conservative judicial activist is a contradiction in terms,” notes Murchison. As Wright points out, non-activist appointees like Fitzwater will likely have only a ’’passive effect” on public policy. “President Reagan will probably make more appoinlments to the federal courts than any president in history, Wright says. “The administration is checking their ideology very carefully. But it’s hard to see a lower-court judge advancing the president’s philosophy. You could appoint all the lower-court federal judges in the country from Right To Life groups, and still not have an impact on the abortion issue unless the Supreme Court reverses Roe vs. Wade. Lower-court federal judges are not free agents.”

Despite Fitzwater’s Republican credentials and past conservative judicial leanings, experts say Reagan shouldn’t start counting his chickens before they’re hatched. “It’s risky business to try to predict what an appointee will do,” notes Miers. Under the circumstances of individual cases, she adds, “you might be surprised” by decisions to come from Reagan appointees like Fitzwater and respected Dallas Judge Bob Maloney. It’s impossible even to predict which issues the two new judges will be asked to decide; The current federal judges in the Northern Texas District will transfer a still-undetermined share of their overloaded dockets to Fitzwater and Maloney.

Many predict that Reagan, by the end of his second term, will have appointed more than half of all the federal judges in America. Like Carter before him, Reagan is appointing relatively young judges, with an average age of 51.5 years. A bearded former UT law professor named Grover Rees HI works under Attorney General Meese to screen the new crop of younger judges, making sure they share the president’s philosophy.

Despite the power and prestige of the federal bench, it’s not easy for a president to find all the highly qualified legal minds he needs. Sid Fitzwater will make about $70,000 a year, while the top-flight Dallas attorneys who appear before him generally earn two or three times that amount. “It’s asking a lot to ask a judge to slay in the judiciary in this day and time,” Miers says. “It’s a great sacrifice.” Unlike Supreme Court and appeals judges, federal district judges can’t pick and choose which cases they will hear. Unless they lack jurisdiction or have a conflict of interest, lower-court federal judges generally try every case they are assigned.

Due to the timing and the political situation in Washington, Phil Gramm will probably appoint more federal judges in his first year in office than his predecessor, John Tower, named during 24 years in office. Sources close to Gramm say he looks for two things: high judicial qualifications and a strong philosophy of judicial restraint. Fitzwater was an obvious choice. Even though he had been on Dallas County’s 298th District Court for only one year, the conservative Fitzwater received the highest rating out of more than 100 local judges ranked in the 1983 Dallas Bar Association poll.

Those close to Gramm say the senator, who has suffered some setbacks in an aggressive first year as Texas’ highest-ranking GOP elected official, “risked a political black eye” by nominating a judge whose unprecedented youth could have caused his rejection by the administration or the Senate, especially since Fitzwater lacked the American Bar Association’s standard minimum of 12 years’ legal experience to qualify for the federal bench. When the idea of nominating Fitzwater surfaced, Gramm reportedly said, “Well, we’re gonna have a fight on this one, aren’t we?” A Gramm spokesman said the senator undertook Fitzwater’s cause because he was “absolutely convinced [Fitzwater] was the best we could find for the job.”

And Fitzwater’s age?

“It’s an added bonus,” Larry Neal admits. “You don’t look at age until you get past some other questions. Sid Fitzwater fit the bill to near perfection. This guy is really good. The icing on the cake is that he’ll be around for a long time.”