Reagan’s Legacy

In the American system of justice, a potential juror who has a preconceived view of the outcome of a case may not participate in it, which is the way things ought to be. But the Reagan Administration is now trying to pack the federal judiciary with judges who will decide certain cases in certain ways. Unable to get the most radical aspects of his social program through Congress, the President is seeking to enact them through the federal courts.

A major operation is under way in the White House and the Justice Department to carefully screen judicial candidates for their political views. The Administration makes no bones about it. It denies, however, that potential nominees are asked how they would rule on specific cases, such as abortion, school prayer, gun control, affirmative action and the rights of criminal defendants. The Administration says it inquires only into the “judicial philosophy” of each candidate. If he passes muster, he is nominated; if not, he isn’t.

The President’s judicial appointments are likely to have a profound impact on the courts--and through them on society--long after the Reagan Administration leaves office. It is projected that in eight years in the White House, Reagan will have appointed more than half of the federal judiciary (currently 761 judges), which has been done by only two other Presidents in this century--Dwight D. Eisenhower and Franklin D. Roosevelt. President Reagan has already named 207 judges, and there are currently 95 vacancies.

It would be naive to think that Reagan is the first President to play politics with federal judgeships or to put people on the bench who share his views. President John Adams packed the judiciary with Federalists before he left office in 1801, and President Andrew Jackson appointed Roger B. Taney as Chief Justice in 1836 to secure a vote against the Bank of the United States. (Two decades later, Taney wrote the court’s opinion in the Dred Scott case, one of the worst moments in the history of the American judiciary. This is one of the problems with appointing judges to decide specific cases. They stick around to decide many more.)

In this century, Presidents Theodore and Franklin Roosevelt and Woodrow Wilson sought to influence cases by appointing judges who would decide them in a certain way.

But no President has done it in as systematic or doctrinaire a way as Reagan has. And none has done it over as broad a range of issues as Reagan seeks to address.

There is an important difference between Reagan on the one hand and Wilson and the two Roosevelts on the other. Earlier Presidents faced courts that were striking down legislation that had been passed overwhelmingly by Congress. Reagan’s situation is the reverse. He seeks to get the courts to give him what Congress will not.

Even if the Administration does not ask potential nomineess about specific cases, the selection process is being made with those cases in mind. The ideological screening that is taking place is demonstrated by the Administration’s dismal record on appointing minorities and women to the federal judiciary. Among his appointments so far, the President has managed only one black and 13 women. He cannot find blacks and women who believe that abortion should be illegal, school prayer should be allowed, access to the courts should be restricted, Congress should leave civil rights to the states, the rights of criminal defendants should be cut back and gun control should be outlawed.

Some judicial candidates don’t have to be asked their views on potential litigation. They volunteer them. John Noonan Jr., a law professor a UC Berkeley who has been mentioned for the 9th Circuit Court of Appeals in San Francisco, calls himself a “pronounced critic” of the Supreme Court’s decision legalizing abortion. Compare that with what Sandra Day O’Connor said about that case in 1981 during her confirmation hearings for the Supreme Court: “I feel that it’s improper for me to endorse or criticize that decision, which may well come before the court in one form or another.”

In making appointments, the Administration is trying to maximize its impact on the courts. It has targeted the Courts of Appeals, which are, in effect, the Supreme Court in the vast majority of cases. The circuit courts decide about 31,000 cases a year, only about a hundred of which are then heard by the Supreme Court. So the Administration has actively sought to make the circuit courts its own, particularly the District of Columbia circuit, which hears cases involving regulatory agencies, the 7th Circuit in Chicago and the liberal 9th Circuit in San Francisco.

In order to ensure that its effect will be long lasting, the Administration has named a large number of young judges, guaranteeing that their views will hold sway in the lifetime jobs for 30 or 40 years. About 10% of its appointments to the Courts of Appeals have been under 40 years old.

Richard Posner, 42, and Frank Easterbrook, 35, were placed on the 7th Circuit bench. Kenneth Starr, 36, went on the Court of Appeals for the District of Columbia. Alex Kozinski, 35, has been nominated for the 9th Circuit. (Posner, Easterbrook and Kozinski are frequently mentioned as candidates for the next vacancy on the U.S. Supreme Court.)

For the most part, it must be said, the Reagan appointees have been intelligent, qualified jurists. The Administration has not overlooked better people to name less qualified people who are ideologically pure. But the name of one New York lawyer who came highly recommended for a district judgeship was withdrawn after Roy Cohn called him “ultraliberal.” This prompted Senator Daniel Patrick Moynihan (D-N.Y.) to write to White House Counsel Fred Fielding: “There is a word for the ideological tests for the judiciary which are seemingly now in place in the White House and the Justice Department. The word is ‘corruption.’ ”

The Senate has the power to reject the President’s nominees. Traditionally, it has not used that power much, but traditionally, no President has done what Reagan is doing. That a President appoints judges whose views conform roughly to his own is to be expected. The problem now is one of excessive reliance on ideology as a test. It goes against the American tradition--a tradition that is conservative in the best sense of the word--of judicious moderation in the selection of judges. It is up to the Senate to pressure the Administration to moderate its zeal.