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                                                                                LAW, Page 41

To the Bench Via the Chair


A major confirmation fight is brewing over the replacement of
a federal judge who was a civil rights hero

By RICHARD LACAYO -- With reporting by Julie Johnson/Washington
and Andrea Sachs/New York


    In the 1950s and early '60s, the most bloodcurdling years
of the civil rights movement, a great Southern judge, and there
were not many of them, needed not only wisdom and fairness but a
lot of nerve. Which is why Frank Johnson, a federal district
judge who was equipped with all three, emerged as one of the
heroes of that era. After the Eisenhower appointee declared that
the segregated buses of Montgomery, Alabama, were illegal, his
mother's house was partly destroyed by a bomb that was
apparently meant for him. Undaunted, Johnson went on to apply
Supreme Court antidiscrimination rulings to resentful state
institutions.

    When Johnson announced his retirement last year from the
11th Circuit Court of Appeals, which covers Alabama, Georgia
and Florida, the White House came up with an unlikely
replacement: Edward E. Carnes, 41, Alabama's assistant attorney
general in charge of pursuing death-penalty cases. And pursue
them he does. Carnes wrote Alabama's death-penalty law, which
allows judges to impose the death penalty on convicted killers
even when juries have opted for life in prison. He led a
national effort by state attorneys general to curb the
opportunities for death-row prisoners to appeal their cases
before federal judges. People who don't much care for him --
they include many civil rights leaders and death-penalty
opponents -- call him Dr. Death.

    The Senate debate on the Carnes nomination this week
promises to be the most contentious vote on a lower-court
candidate in years. Despite the tough-sell symbolism of
replacing Johnson, a civil rights legend, with a nominee best
known for hustling inmates to the electric chair, Carnes
appeared to be on a smooth course to confirmation before the
question of racism in the justice system was illuminated by the
fires of Los Angeles after the Rodney King verdict. Meanwhile,
the Democratic dream of recapturing the White House moved from
fond hope to real prospect. After 12 years in which the Reagan
and Bush Administrations have filled three-quarters of all
federal judgeships with mostly conservative appointees, some
Democrats in Congress are now thinking twice about giving fast
approval to the dozens of White House court nominees who await
confirmation in what may be the waning days of the Bush
presidency.

    But Carnes has some important supporters, including both
of Alabama's Democratic Senators, Richard Shelby and Howell
Heflin. A powerful swing vote on the Senate Judiciary Committee,
Heflin complains that Carnes' opponents "view this confirmation
as being a referendum on capital punishment, although they deny
it." In May, Heflin got the committee to send Carnes' name to
the full Senate despite the opposition of the committee
chairman, Delaware Senator Joe Biden, a fellow Democrat.

    To the consternation of some black civil rights leaders,
Morris Dees, the white Alabama civil rights lawyer famed for
successfully fighting the Ku Klux Klan in court, is also in the
nominee's corner, arguing that Carnes is not a racist but just
a man who has capably pursued his duty as a prosecutor. The
Harvard-trained lawyer has prosecuted two state judges for
making racist remarks in court and has defended blacks in civil
rights lawsuits.

    But what bothers Carnes' critics is that his legal
experience consists chiefly of having been an ardent defender
of a system of capital punishment that they say is infected by
racial discrimination. Carnes said during his April confirmation
hearing that capital punishment was not applied in a racially
discriminatory manner "in Alabama or in the nation" -- a view
in keeping with the Supreme Court's own rulings, though one
study after another has demonstrated that blacks who kill whites
are far more likely to be sentenced to death than whites who
kill blacks.

    Lately the attacks on Carnes have widened to include his
defense of instances in which prosecutors have resorted to the
unconstitutional practice of using courtroom challenges to keep
blacks off of juries in trials of black defendants. Rosa Davis,
chief of the Alabama attorney general's appeals division, says
it's simply Carnes' job to justify the actions of trial
prosecutors when one of their convictions is challenged on
appeal. "Our arguing for the state doesn't mean that we support
racial discrimination," she insists, "any more than someone who
represents a convicted murderer supports killing." But Carnes'
public statements leave the impression of a man inclined to
justify the tactic when it suits his purposes. "I am not
convinced that Mr. Carnes fully appreciates that racial
discrimination undermines the essential justness of verdicts and
undercuts public confidence in our justice system," says Biden.

    One irony of Carnes' situation is that if he is confirmed
-- both sides were counting votes last week -- he won't get
much chance to use his death-penalty expertise on the bench.
Recently the Supreme Court significantly restricted the rights
of death-row inmates to appeal their sentences before federal
judges -- just as Carnes the prosecutor had wanted.