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

August 23, 1987|David M. O'Brien | David M. O'Brien, a government professor at the University of Virginia, recently received the American Bar Assn.'s 1987 Silver Gavel Award for his book, "Storm Center: The Supreme Court in American Politics " (Norton)

CHARLOTTESVILLE, VA. — 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.

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