Reagan’s Federal Bench: Redesigning the Judiciary

President Reagan is mounting an unprecedented campaign to transform the federal courts. By appointing extreme conservatives to all levels of the federal bench, he seems to be trying to end the federal courts’ historic function of safeguarding individual liberty and promoting equal justice.

That the President’s Supreme Court nominees, Justice William H. Rehnquist and Court of Appeals Judge Antonin Scalia are on the very conservative side of the judicial spectrum is common knowledge. Less well known is the way the President has tried to pick the same kind of judges for lower federal courts.

Consider one of Reagan’s recent selections, Daniel A. Manion, nominated to the Second Circuit Court of Appeals in Chicago. His professional qualifications are so meager that 44 law school deans and more than 100 law professionals have come out against him. He was chosen only because of his ultraconservativism--he has opposed applying the Bill of Rights to state and local officials, advocated stripping the Supreme Court of its jurisdiction to enforce constitutional rights and praised the John Birch Society as “being on the front line of the fight for constitutional freedom.” Although 50 senators opposed his confirmation, the issue is still alive because of some parliamentary maneuvering.

The President also tried to give an Alabama judgeship to Jefferson B. Sessions, who called the NAACP, “un-American” and “communist inspired,” and thought the Ku Klux Klan was “OK until I learned they smoked pot.” Even the Republican-controlled Senate Judiciary Committee couldn’t swallow the President’s choice on this one.

Another judgeship nomination went to Eric D. Bruggink who tried to exclude from Alabama public schools literary anthologies that used the words, “God,” “hell” and “damn”; he also wanted to exclude Henrik Ibsen’s “A Doll’s House” for its “radical feminism.”

On the other hand, judicial candidates deemed not sufficiently pure on abortion, gun control or defendants’ rights are rejected by the White House.

On the bench, Reagan judges have performed as expected. Court of Appeals Judge Richard A. Posner argued against appointing a lawyer for a prison inmate who claimed to have been rendered functionally blind by prison doctors’ malpractice (which included operating on the wrong eye), insisting that the inmate be relegated to the lawyer-client market. In antitrust matters, even business lawyers have criticized his “almost religious zeal” and lack of “a judicial and restrained approach to finding the law.”

Judge Robert H. Bork in the District of Columbia has made a specialty of devising ways to keep people victimized by official misconduct out of court. Scalia has consistently voted against free-speech interests, in one case drawing even Bork’s ire; Scalia has often inveighed against federal protection for individual rights as have other Reagan appointees.

The framers of our Constitution knew the importance of these lifetime appointments, and in keeping with the separation of powers philosophy that pervades the entire Constitution, provided that the power to pick members of this third independent branch be divided. The President was given the authority to propose names (the practical way, since it would be virtually impossible for a large group to agree on one name) and the Senate was given the power to reject or accept--the same procedure as with treaties.

As part of the process, Presidents look to a nominee’s judicial and social philosophy. Should the Senate also do so, or only look to the nominee’s professional and ethical qualities?

For Supreme Court nominees, the answer is easy and, though not the conventional wisdom, widely accepted and often applied. As Grover Rees, head of the Reagan Administration’s judge-selection team concluded after studying historical and other authorities, “social and economic philosophy, insofar as they reflect a judge’s likely position on constitutional issues, are legitimate bases on which senators might vote to confirm or reject Supreme Court nominees.”

And senators have relied on a nominee’s views in voting. From 1789 to 1938, 26 out of 110 nominees were rejected, often because of their views on public and judicial philosophy, even when nominated by such popular presidents as George Washington and Ulysses S. Grant; other nominees were withdrawn when it became clear they would be rejected.

Some suggest that the philosophy of a lower court judge is irrelevant, because his law-making authority is much narrower than that of the Supreme Court. Reagan apparently disagrees. And for good reason. Between July 1, 1934, and June 30, 1985, the federal Courts of Appeals decided 31,387 cases. In most of them, the Appeals Court had the final say since the Supreme Court only reviews about 100-150 of these cases. Appeals Courts are particularly significant in overseeing the regulatory process, covering everything from the price of natural gas to the safety of children’s toys.

Who sits on the district courts is also crucial. In 1984-85, these courts issued 306,987 decisions, many, for all practical purposes, not reviewable.

Despite the numbers, few prior Presidents paid much attention to their lower court nominees’ judicial philosophy. Patronage, politics and senatorial prerogative were the primary factors, for better and for worse. Even Franklin D. Roosevelt, who looked to judicial philosophy in the latter part of his second term, “never let this interfere with a good political stroke,” according to one expert.

Reagan has changed all that, particularly on the appellate level where he is in virtual control and free of senatorial influence. Not only has he sought out lawyers of the most conservative kind, but his ideological agenda goes far beyond that of his predecessors. In the past, a President’s interest in a nominee’s philosophy usually focused on one issue, such as federal power over the economy during the 1930s. The Reagan judicial agenda touches almost every question faced by federal courts, from access to the courts, to civil rights, abortion, economic conditions and church-state issues.

Moreover, Roosevelt’s court-packing was motivated by the judiciary’s veto of economic programs overwhelmingly passed by Congress and approved by the people. Reagan is seeking judges who will adopt policies on abortion, civil rights and other issues that Congress and the nation have repeatedly rejected, despite the President’s electoral landslide.

Because ideology has rarely been involved in a lower court nomination, very few District of Appeals Court judges have been rejected or even opposed on this ground. Nevertheless, when Presidents tried to choose judges on such a basis, they have been opposed. For example, President James Buchanan tried to pack the federal bench with pro-slavery advocates and, despite his majority in the Senate, lost a district court nomination for Kansas. In the 1930s, conservatives defeated Roosevelt’s effort to put a New Dealer on the Virginia bench.

The President is using ideology as the basis for as many judicial appointments as he can. There is nothing illegitimate about this, for the President has a right--indeed an obligation--to name judges who share his vision of the kind of Constitution and nation we should have. But each senator has the same responsibility, and should reject a nominee if the senator rejects that vision. As one of the President’s staunchest advocates, Senator Orrin G. Hatch (R-Utah) put it, “Senate procedures, such as senatorial courtesy, that can be justified when nominations are considered at sporadic intervals, are simply inappropriate when an entire branch of the national government is literally being refashioned over a period of months.”