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Reagan's Federal Bench: Redesigning the Judiciary

July 06, 1986|Herman Schwartz | Herman Schwartz is professor of constitutional law at American University

WASHINGTON — 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.

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