About once a week, usually on Thursday afternoons, half a dozen top White House and Justice Department officials meet to perform a little-noticed but profoundly important task: selecting, from among hundreds of candidates, those who will be recommended to President Reagan for nomination as federal judges.
It is not an idle job. By 1989, when his second term ends, Reagan will have had an opportunity to make far more appointments to the federal judiciary than any other President. Already, he has appointed 31 judges to the regional U.S. appellate courts--or 23% of the judges now sitting--and 130 to the District Court bench--26% of those sitting.
Record for Appointments
This year alone, Reagan will make at least 115 more nominations to the federal bench--surpassing the record 262 that Jimmy Carter made in his four-year tenure. Assuming a normal turnover rate, Reagan will have filled more than half of the 744 federal appeals and District Court judgeships by the end of his second term.
Thus, although Justice Sandra Day O’Connor remains his only Supreme Court appointment so far, Reagan already has put a deep and lasting imprint on the rest of the federal judiciary--the appeals and trial courts that dispose of the vast majority of the hundreds of thousands of criminal and civil cases brought each year.
And, unlike some presidential appointees, who have taken surprising turns once they reached the federal bench, Reagan’s choices by and large are exercising just the kind of “judicial restraint” that this President advocates--interpreting the law narrowly, deferring to legislators and other government policy-makers and refusing to declare broad new individual rights.
In the process, the President has cheered conservatives and others who share his philosophy and his views on public policy questions. He also has spread concern and dismay among civil rights groups, public-interest lawyers and other activists who fear that Reagan nominees could dominate the federal courts for decades on such politically sensitive issues as abortion, affirmative action and the rights of criminal defendants.
The Alliance for Justice, a coalition of liberal groups, is forming a watchdog unit that will monitor the Administration’s nominations--looking into each candidate’s background, organizational associations, legal writings or previous judicial record. They will be seeking any evidence that nominees are biased against women and minorities or unfairly resistant to class-action suits and other attempts to bring social reforms through legal action.
Any such evidence would be turned over to American Bar Assn. officials reviewing the nominations or to the Senate Judiciary Committee, which must clear any nominees submitted by the Administration for Senate confirmation.
“We were very concerned that this Administration has chosen people based more on ideology than merit,” said Susan Liss, a Washington attorney who is directing the project. “Our aim is that the judiciary remain an independent third branch of government and not so directly reflect the political views of the President.”
Fewer Blacks Appointed
There is also widespread criticism of the relative lack of ethnic and gender diversity among Reagan appointees. Carter, placing heavy emphasis on appointing minorities and women, ended up naming 38 blacks, 16 Latinos and 40 women to federal judicial posts. Reagan, saying that he would emphasize merit over diversity, has appointed 2 blacks, 8 Latinos and 17 women--including O’Connor--to the federal bench during his first four years in office.
“The Reagan record on appointment of blacks is the worst since the (Dwight D.) Eisenhower Administration,” said Sheldon Goldman, a political scientist at the University of Massachusetts.
“This Administration says it values equal opportunity, but there’s no way to accomplish that without some kind of affirmative action . . . . I’d like to see the Reagan Administration take more seriously the importance of placing on the federal bench minorities who have been historically discriminated against,” Goldman said.
The Administration counters that it does seek minorities and women for the bench but that philosophical considerations must come first. “We are interested in making the bench as diverse as possible, and we encourage women and minority candidates,” said James M. Spears, an acting assistant attorney general who heads the Justice Department’s Office of Legal Policy.
“But we’re not going to sacrifice those things we feel most important simply to adjust the numbers,” Spears said. Advocates of the judicial conservatism favored by the Administration say that what matters is how a judge reaches a decision--not necessarily what he decides. They deplore “judicial activism"--the tendency to shape the law to reach the result a judge desires.
Judge Robert H. Bork of the U.S. Court of Appeals for the District of Columbia, one of several conservative academicians Reagan has appointed, defined “judicial restraint” this way: “It is the attempt to discern what was intended by legislators and the framers of the Constitution and then try to do what they intended--without adding your own policy preferences.”
Bork himself downplays the immediate impact of Reagan appointees to the judiciary. Their influence, he says, is more likely to be felt in the long-term intellectual debate over the proper role of a judge. But others see more imminent--and practical--effects.
“As more and more appointments are made, the balance will change even further--particularly on the courts of appeal,” said University of Chicago law professor Dennis Hutchinson. “Many of these courts will take on the ideological hue of the Administration.”
Of course, not all Reagan appointees have shown unyielding devotion to judicial restraint, nor have all their decisions won applause from conservatives. Yet scholars who have analyzed their records agree that, for the most part, the Administration’s appointees have turned out to be the judicial conservatives the President wanted.
For example, Reagan appointees have held that:
--There is no constitutional right to privacy that would prevent the Navy from dismissing a sailor accused of homosexual conduct.
--The Reagan Administration is free to ease federal car bumper safety standards that were issued by the Carter Administration.
--The Postal Service could lawfully bar a nonprofit anti-drug organization from soliciting contributions or selling literature to the public on postal property.
--Municipalities are entitled to order illegally parked cars to be towed away without first giving motorists notice and a hearing.
--The Constitution does not require a state to provide criminal defendants with free transcripts of preliminary hearings when the state’s policy is not to record such proceedings.
--The FBI may investigate not only groups that pose the imminent threat of violence but also those that only advocate violence.
--An accused child pornographer has no right to trial in the jurisdiction where he sent pornographic material, rather than the place from which he sent it, where the community standards for measuring obscenity might mean that he would be treated more harshly.
Reflect Reagan Thinking
A far-ranging, 298-page study by the Center for Judicial Studies, a conservative-oriented judicial research group, concluded last November that Reagan had succeeded largely in appointing judges whose rulings would reflect his brand of judicial restraint.
The study, compiled by Craig Stern, a former counsel to the Senate Judiciary subcommittee on separation of powers, evaluated opinions issued by Reagan appointees during 1981 and 1982.
Names of potential judicial nominees come to the Administration from all over the landscape. Republican senators, state attorneys general or Justice Department officials are just some of the persons with suggestions to make.
Candidates are interviewed by Administration officials in far-ranging discussions--on subjects as diverse as affirmative action and prison reform--designed to elicit the candidates’ judicial philosophies. Names of potential nominees are forwarded to the FBI and the American Bar Assn. review panel for investigation.
Members of Group
During Reagan’s first term, the group with prime responsibility for the screening process included Fred F. Fielding, counsel to the President; Edwin Meese III, at that time counselor to the President; John S. Herrington, former presidential assistant for personnel; James A. Baker III, former presidential chief of staff; William French Smith, former attorney general; Carol E. Dinkins, deputy attorney general; D. Lowell Jensen, associate attorney general, and Spears, now the head of the Justice Department’s Office of Legal Policy.
Their recommendations were formally sent to the President by Smith.
In making judicial appointments, Presidents have no guarantees that their appointees will end up voting as expected. Federal judges, with lifetime tenure, sometimes change their views of the law with more experience. But this appears to be less of a problem for Reagan than for some of his predecessors, some legal experts believe.
In particular, the President has filled several slots on the appellate courts with academicians whose conservative philosophies seem well-settled.
Bork, a former Yale law professor and U.S. solicitor general in the Richard M. Nixon and Gerald R. Ford administrations, now sits on the U.S. Court of Appeals for the District of Columbia, along with former University of Chicago law professor Antonin Scalia.
Richard Posner, a former University of Chicago professor, sits on the 7th Circuit and is likely to be joined by another former Chicago colleague, Frank Easterbrook, who has not yet been confirmed by the Senate. Ralph K. Winter, a former Yale law professor, is on the U.S. 2nd Circuit Court of Appeals in New York.
Administration critics find it difficult to attack appointees with credentials from such respected institutions. “I wouldn’t quarrel with the intellectual caliber of the people he’s appointed,” a Washington lawyer who supported the presidential candidacy of Democrat Walter F. Mondale said recently. “Nobody could.”
The change in the philosophical balance of the federal courts is occurring with relative speed, considering that, just a few years ago, it was Carter who enjoyed the chance to leave a lasting mark on the bench. During Carter’s presidency, Congress created 152 new federal judgeships--and, as a result, he ended up appointing 262 federal judges to fill new posts and vacancies in existing posts.
Last year, Congress enacted legislation providing 85 new judgeships--61 for the district courts, 24 for the appeals courts. Reagan filled 10 before Congress adjourned but now has scores of existing vacancies and new posts to fill.
Appellate Courts Affected
The changes are likely to have a particularly strong impact on the federal appellate courts--those with sometimes unnoticed but nonetheless vast powers. Unlike the Supreme Court, which has the discretion to review or refuse to review most appeals, the federal appellate courts review all appeals from district courts. Ordinarily, three-member panels decide such appeals. If it wishes, the full appellate court can convene to hear a case.
Already, Reagan appointees have transformed the District of Columbia Circuit Court from what was regarded as the most liberal appeals court in the nation into one nearing an even division between liberals and conservatives. When the President appoints two more judges to fill openings later this year, the court is likely to contain six liberals and six conservatives.
Carter made 15 appointments to the 23-member U.S. 9th Circuit Court of Appeals in San Francisco, tipping that court’s philosophical balance from conservative to liberal. But now, with five new judgeships, Reagan has the chance to counter the Carter influence on the court. In New York, four judges on the 11-member 2nd Circuit now are Reagan appointees. In Chicago, four judges on the eight-member 7th Circuit were named by Reagan.
As has been widely noted, beyond the appellate and district courts, Reagan stands to have a profound impact on the federal judiciary through appointments to the Supreme Court. Five of the court’s nine members are over 75, and vacancies may occur before the President leaves office.
Legal experts point out that Reagan appointees could soon dominate the Supreme Court, which sets the broad legal guidelines for the rest of the judiciary to follow in hundreds of thousands of cases and could prove decisive for years in such sensitive areas as abortion, criminal rights, affirmative action and the church-state relationship.
Administration officials concede that only time will tell. “What we’re seeing thus far on the bench is positive,” Spears said. “But I don’t think we’ll really know how much our nominees have helped the President achieve what he wants until the 1990s or beyond. Twenty years from now we’ll have a pretty good idea.”