The Bazelon Court Awaits the Case

When President Nixon appeals Judge John Sirica's demand for the presidential tapes, the case will move this week from the second floor of the U.S. Court House up to the fifth-floor chambers of the U.S. Court of Appeals for the District of Columbia. There it will be heard either en banc by the court's membership of nine judges or by a three-judge panel selected at random. Considering the importance of the case, the judges may decide that all should assemble.

By reputation, the District of Columbia appeals court is both innovative and liberal--though not so liberal as it used to be before President Nixon appointed three of its members. Its reputation derives from its dominant figure, David L. Bazelon, 64, who was appointed by President Truman 24 years ago and has served as chief judge since 1962. A judicial activist, he is best known for his pioneering opinion in the Durham case of 1954, in which he permitted a plea of not guilty by reason of mental illness, thus modernizing the 19th century M'Naghten rule that a criminal defendant could plead insanity only if he did not know right from wrong. In the Durham ruling, the court declared that a man is legally insane if his unlawful act is the "product of mental disease or defect."

Other notable decisions of the Bazelon court:

> The first ruling upholding the law giving 18-year-olds the right to vote.

> A ruling that struck down most of the Government's prosecutions of 12,000 demonstrators arrested during the May Day protests of 1971.

> A ruling providing guidelines for therapeutic abortions for the indigent on grounds of mental health, and adding: "If every poor person must bring a lawsuit every time her rights are infringed by the insensitivity or ignorance of city and hospital officials, all will be effectively deprived of their rights."

Most of Bazelon's views are shared by Judge J. Skelly Wright, 62, a courtly Southern gentleman who can be both tough and emotional in his opinions. Dissenting from the majority opinion favoring the Government in the 1971 Pentagon-papers case, for instance, Wright wrote: "As if the long and sordid war in Southeast Asia had not already done enough harm to our people, it now is used to cut out the heart of our free institutions and system of government."

The court's ruling on the presidential tapes will not derive primarily from the political leanings of the nine judges, to be sure. But it is worth noting that in addition to Bazelon and Wright, the court has three members who can be ranked as somewhat left of center: Carl McGowan, 62, who served as Adlai Stevenson's counsel while Stevenson was Governor of Illinois; Harold Leventhal, 58, onetime general counsel to the Democratic National Committee; and Spottswood W. Robinson III, 57, former dean of the Howard University Law School and the only black member of the court.

The four conservative members are Edward Allen Tamm, 67, a Johnson appointee who once served as right-hand man to FBI Director J. Edgar Hoover; George E. MacKinnon, 67, a longtime acquaintance of Richard Nixon; Roger Robb, 66, a Nixon appointee who used to represent Senator James Eastland of Mississippi; and Malcolm Richard Wilkey, 54, a former U.S. Attorney in Houston and onetime counsel for the Kennecott Copper Corp.

The court is expected to set a date soon for written briefs to be submitted by White House Lawyer Charles Alan Wright and Special Watergate Prosecutor Archibald Cox and for oral arguments to be heard. It will probably hand down a decision before the end of September, just in time for a final appeal by the losing party to the Supreme Court when it reconvenes after its summer recess on Oct. 1.

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