IF THE BENCH BECOMES A BRAWL : Reagan’s Legacy for U.S. Courts

The left and the right are gearing up for September’s Supreme Court confirmation battle over Judge Robert H. Bork. The outcome turns on whether enough senators are persuaded that Bork is in the legal mainstream.

What is being ignored, however, is how profoundly the Reagan Administration has already shifted legal thought and the direction of the federal judiciary. In 6 1/2 years, Reagan has named more lower federal court judges--317 in all--than Franklin D. Roosevelt did in 12 years--203 judges. Over 42% of those now on the bench were appointed by Reagan and before leaving the Oval Office he may have selected over half of all federal judges.

Democrats have not occupied the White House in 20 years, except for the ill-fated presidency of Jimmy Carter. As a result, none has appointed a member of the Supreme Court since 1967. And 60% of those now on the appellate bench identify with the Republican Party; 10% are Independents or conservative Democrats in the South, and the rest Democrats. Much the same holds for district judges.

More than any President since Roosevelt, Reagan favors the party-faithful. While all Presidents reward those in their own party, Reagan has surpassed others by giving 97% of his judgeships to Republicans. But there is more to it than that.

Judges are regarded by the Reagan Administration as both symbols and instruments of presidential power--the most lasting legacy of “the Reagan revolution.” Past Republican Presidents have been accused of not taking judgeships seriously and thus failing to appoint true conservatives.

From the outset of the Reagan era, power over judgeships was concentrated, with the aim of reversing the trend toward moderate-to-liberal judges. First, Carter’s “merit” commissions for nominating judges were eliminated. Then the policy of consulting with the National Bar Assn.--representing black lawyers--and women’s organizations was discontinued. Within the Justice Department, the judicial-selection process became more rigorous and subject to greater White House supervision. A special committee--including the attorney general, his deputy and several assistants, as well as the counselor to the President and other White House advisers--was created to decide whom Reagan should nominate.

The Reagan Administration’s ambitious agenda has been meticulously imposed on judicial selection. Stephen J. Markman, the assistant attorney general who oversees the judicial selection process, boasts it “has in place what is probably the most thorough and comprehensive system for recruiting and screening federal judicial candidates of any Administration ever.”

The key to Reagan’s success lies in an unprecedented screening process. Computer data banks contain records--speeches, articles, court opinions and the like--on hundreds of potential nominees. Then the one or two leading candidates for each vacancy undergo several day-long interviews with Justice Department officials. During these interviews candidates say they have been asked their views on such controversial rulings as abortion, affirmation action and criminal justice. Fred F. Fielding, the former counselor to the President, concedes this is geared toward selecting “people of a certain judicial philosophy.”

This ideological screening draws fire from moderate Republican senators and officials in past Republican Administration, as well as liberals. Herbert Brownell Jr., Dwight D. Eisenhower’s attorney general, called it “shocking” in a recent interview. Griffin B. Bell and Edward H. Levi, former attorneys general for Carter and Gerald R. Ford, agree that the process has become “badly politicized.”

Still, the Administration was almost guaranteed success, at least until the Democrats regained the Senate last fall. As chairman of the Senate Judiciary Committee from 1981 to 1986, Sen. Strom Thurmond (R-S.C.) gave rubber-stamp approval. In the words of one staffer, he was “willing to swallow and push the most controversial of Reagan nominees.” That allowed the Administration to take a hard line with moderate Republicans on nominations. Despite bitter intra-party fighting and one defeat, the Administration almost always got what it wanted.

Since Sen. Joseph R. Biden Jr. (D-Del.) took over the Judiciary Committee, the Administration has been slow to fill vacancies and named few controversial conservatives. Another measure of the change is that half the appellate judges put up by Atty. Gen. Edwin Meese III and rushed through by Thurmond were given the American Bar Assn.’s lowest “qualified” ranking. And a third were so rated by a split vote, with a minority of the ABA committee finding them “not qualified.” By contrast, so far this year only one was rated qualified by a split vote; the rest were unanimously found qualified or well-qualified.

The inescapable conclusion remains, as conservative University of Chicago Law School Professor Philip B. Kurland says: “Judges are being appointed in the expectation that they will rewrite laws and the Constitution to the Administration’s liking. Reagan’s judges are activists in support of conservative dogma--what some people would call hanging judges in criminal law and anti-regulation judges in civil law.”

Reagan judges share not just a predictable conservative judicial philosophy. They are disproportionately wealthy, white Protestant males. With over 300 appointments, Reagan has named only 27 women, 12 Latinos, five blacks and two Asians. Over 92% had incomes exceeding $100,000 a year, and almost a quarter were millionaires. Most had prior judicial, government or corporate experience. Young law professors with established conservative track-records were favored as well.

In what ways will these judges carry the Reagan revolution? At the very least, they will advance into the next century the movement, building for almost 20 years, toward a far more conservative federal judiciary. This means they will be less receptive to claims for civil rights, the rights of the accused and rooting out vestiges of non-racial discrimination. At the same time, they will be more responsive to property rights, corporations and anti-regulation forces.

Recent studies underscore how the changing composition of the federal bench affects the direction of the courts. One finds that between 1981 and 1984, district judges appointed by Carter were about three times more supportive of criminal defendants than Reagan appointees. And Carter’s appellate judges were 90% more likely than Reagan’s to favor defendants over the prosecution. Another study, just published in the Columbia Law Review, concludes that in non-unanimous cases in 1985-86, appellate judges appointed by Democratic Presidents twice as often sided with civil-rights plaintiffs, criminal defendants and public-interest groups than those named by Reagan or other Republican Presidents.

Such studies, however, are preliminary at best. For one thing, some of the most controversial conservatives named since Meese became attorney general have not had the opportunity to decide many cases. For another, lower court judges must follow precedents and the Supreme Court’s lead. They do not strike out on their own, overturning established law and risking reversal of their decisions on appeal. That is why New Right conservatives have been disappointed when Reagan judges did not immediately strike down abortion laws or take a stronger stand on pornography and other matters the Administration failed to get Congress and the Supreme Court to adopt.

Statistics, moreover, cannot tell the whole story. In the short run, Reagan judges are making their mark in cases involving new claims and where the law is relatively undeveloped. District Judge Thomas G. Hull in Tennessee, for instance, recently ruled that children may opt out of public school classes that require readings their fundamentalist parents find objectionable for promoting “secular humanism.”

In the 7th Circuit Court of Appeals in Chicago, judges like Richard A. Posner and Frank H. Easterbrook are attracting attention for bringing their free-market economic theories to bear in anti-trust and anti-regulation cases. And in new areas of law, such as sexual harassment, Reagan judges are having an effect. Last year a three-judge panel on the 6th Circuit Court of Appeals was bitterly divided over a woman’s sexual harassment claim against her superior, who “routinely referred to women as whores,” and regularly commented, “All that bitch needs is a good lay.” Both Reagan judges dismissed her charges, over a strong dissenting opinion by one of the few black judges on the bench, appointed by Lyndon B. Johnson.

Where will it end? How far will the Reagan judges go? Much depends on Bork’s confirmation and how the composition of the Supreme Court changes in the future. But the lower federal courts are changing. And whether this is a quiet revolution in-the-making or a continued evolution in the conservative direction, Reagan has made his most lasting imprint on the country.