Why Many Think that Ronald Reagan's Court Appointments May Have Been His Chief Legacy
"No administration has thought longer and more deeply about law since that of FDR, and we have thought more deeply than that administration." That was no immodest boast on the part of Terry Eastland, the Justice Department's director of public affairs. Why? In retrospect, it appears the result of a combination of six factors.
First, the Justice Department's agenda reflected both staffing and the political strategy of young "movement conservatives." They were attracted to the department and were recruited from the senatorial staff of Reagan Republicans and the ranks of former law clerks to leading conservative jurists, like Justice Rehnquist, as well as law professors elevated by Reagan to the federal bench, such as Robert H. Bork, Antonin Scalia, Richard Posner, and Ralph Winter. In addition, many were associated with the Federalist Society, a conservative legal fraternity founded in the early 1980s.
What they shared was a sense of being in the vanguard of a new conservative legal movement--a movement that went beyond older conservatives' opposition to the "liberal jurisprudence" of the Warren Court (1953-1969). They also defined the department's social-policy agenda largely in terms of the new right's opposition to rulings of the Burger Court (1969-1986) on abortion, affirmative action, busing, school prayer, and the like.
Admittedly, there were some divisions within the ranks of the DoJ and those associated with the Federalist Society. While many were concerned with federalism and returning power to the states, some were more libertarian, especially those associated with the " Chicago law and economics movement." Reagan appointed several of the leaders of the movement to the lower federal courts, including Robert H. Bork, Richard Posner, Frank Easterbook, and Douglas H. Ginsburg. But that in turn on occasion resulted in some hasty or ill-considered judicial nominations and a breaking of ranks with cultural conservatives, notably with the defeat of two nominees who were closely associated with the law and economics movement: Judge Douglas H. Ginsburg on his nomination to the Supreme Court and Bernard Seigan to the federal appellate bench.
Second, the DoJ's promotion of the new right's social civil rights positions and a free-market economic analysis of law was also politically strategic. During his first term, Reagan lent presidential prestige to proposals for constitutional amendments that would overturn the Supreme Court's 1973 abortion ruling in Roe v. Wade and to curb the jurisdiction of lower federal courts in other controversial areas, such as school prayer. But within a couple of years, it was clear that Congress would not go along with that.
Thereafter, Reagan offered politically symbolic support in speeches, but never really pushed the new right's agenda in Congress. Instead, the Justice Department pursued it through litigation and judicial selection.
Third, there was a greater appreciation than in prior administrations for the significance of the expanding number of judgeships and the changing role of courts in American politics. In the 1980s, with fifty or more judicial vacancies ; annually becoming available (due to the creation of new judgeships because of rising caseloads), the federal bench could quickly bear the imprint of a particular president. Because federal judges are basically guaranteed lifetime tenure, they are attractive vehicles for achieving a president's legal-policy goals. As the former associate deputy attorney general, Bruce Fein, observed, "The judiciary is a primary player in the formulation of public policy," and hence "it would be silly for an administration not to try to affect the direction of legal-policy" when filling vacancies on the federal bench.
Fourth, as noted, the judges appointed by previous Republican administrations were largely viewed by the Justice Department as disappointing and representing lost opportunities. Quite simply, prior Republican administrations allowed political patronage and professional considerations to overshadow their own legal-policy goals in judicial selection. Stephen Markman, the assistant attorney general overseeing judicial selection in Reagan's second term, offered this critical assessment of prior Republican administrations' judicial appointments: "While many of the Nixon appointees were more conservative judicially than judges selected under earlier administrations, the ability of the Nixon Administration to affect the overall philosophy of the federal bench was ultimately frustrated by the concessions the Administration was forced (or chose) to make."
Judges picked during the Ford presidency were even more disappointing. In Markman's words, "The Ford Administration did not make significant changes in the judicial selection process," and "the weakness of the Ford Administration may be seen in the statistic that a record 21 percent of its district court appointments went to members of the opposing party." Both administrations, though, were constrained by a Democratic-controlled Congress, and the Watergate scandal had further eroded their bargaining power with the Senate.
Still, in the view of Markman and others, Nixon and Ford failed to "view the philosophical grounding of [judicial] candidates to be as important" as did those in Reagan's Justice Department.
Fifth, President Carter's "affirmative action" program for selecting judges inspired a reaction. Carter forged historic changes in the federal bench by seeking a more "representative judiciary" through the recruitment of blacks, women, and other minorities. For those in Reagan's Justice Department, his "affirmative action" program was irrelevant and sacrificed "judicial merit" for the political symbolism of a more "representative" federal bench.
Finally, as a result of the previous factors, during Reagan's presidency the Justice Department became more and more aggressive in defining and pushing its agenda in litigation and in judicial selection. This reflected incremental changes in the staffing and strategies of the DoJ during Reagan's two terms, as well as within the administration a growing synergism associated with waging the "Reagan Revolution." In other words, during Reagan's first term, under Attorney General William French Smith, the department basically sought to establish what it was against. It wanted to overturn Warren Court precedents that had expanded protection for the rights of the accused, especially through enforcement of the exclusionary rule and Miranda warnings. And it opposed the Burger Court's rulings permitting abortions and affirmative action as well as requiring what it regarded as a rigid separation of church and state.
In Reagan's second term, under Attorney General Edwin Meese, the DoJ aimed to broadly establish what Reagan justice stood for. Nothing symbolized this more (nor captured wider public attention) than Meese's call for a "return to a jurisprudence of original intention" and Judge Bork's defense of that view during his confirmation hearings.
The Reagan administration, in the words of Stephen Markman, put "in place what is probably the most thorough and comprehensive system for recruiting and screening federal judicial candidates of any administration ever. This administration has, moreover, attempted to assert the President's prerogatives over judicial selection more consistently than many of its predecessors."
From the outset, it was clear that greater presidential control over judicial selection was necessary if the department was to reverse what it perceived as a trend toward appointing liberal to moderate judges. One of the first steps was the elimination of Carter's nominating commissions for appellate court judges. Moreover, Reagan also requested senators to submit three to five or more names for each district court vacancy in their home states. This gave the administration more flexibility and bargaining power over the nomination of lower federal court judges.
A number of other changes and reforms also contributed to forging a more rigorous and ideological process for recruiting federal judges.
Presidential control over the judicial selection was enhanced by also abandoning Carter's policy of working with the National Bar Association--representing African American lawyers--and various women's organizations. These groups no longer had input into the department's judicial selection process. In addition, the department's relationship with the American Bar Association (ABA) deteriorated, particularly after some of Reagan's nominees ran into trouble.
Even more crucial was the reorganization of the judicial screening and selection process within the Reagan presidency. Primary responsibility shifted from the DoJ to the White House and became a larger staff operation. The attorney general no longer had total responsibility or solely relied on his deputy attorney general for assistance. Instead, the assistant attorney general for the Office of Legal Policy was put in charge of screening potential judicial candidates, subject to further review by the White House.
A White House Judicial Selection Committee was created to decide whom the president should nominate. It met weekly in the White House and included the attorney general; the deputy attorney general; the counselor to the president; and the assistant attorneys general for the Office of Legal Policy, personnel and legislative affairs; as well as other White House advisers, including the chief of staff.
This reorganization concentrated power, institutionalized the role of the White House, and better positioned the Reagan administration to combat senatorial patronage when filling lower court vacancies, as well as enabled rigorous ideological screening of potential judicial nominees.
In addition, an unprecedented screening process for potential judicial nominees was introduced. The White House Judicial Selection Committee considered judicial candidates only after they had undergone daylong interviews with DoJ officials. And the interviews took place only after candidates' records--containing speeches, articles, and opinions--were compared with hundreds of others in the department's computer data bank.
The interviews were unprecedented and controversial. Among those criticizing the practice were Eisenhower's attorney general, Herbert Brownell, and Carter's attorney general, Griffin Bell. Brownell termed the questioning of judicial candidates "shocking." In Bell's words, "It politicized the process badly. I don't believe that you should ask a judge his views [on specific issues] because he is likely to have to rule on that."
No less controversial were some of the questions asked of candidates for judgeships. Some who made it to the bench and others who didn't told of being asked about their views on abortion, affirmative action, and criminal justice. National Public Radio correspondent Nina Totenberg reported that several contenders said "they were asked directly about their views on abortion."
This screening and scrutiny of judicial nominees drew criticism from liberal senators and groups like the Alliance for Justice, created to monitor judicial nominations for a coalition of liberal organizations. Even some officials in past Republican administrations and leading conservative law professors, like Philip Kurland, were critical. Philip Lacovara, a former official in Nixon's Justice Department, even resigned as Reagan's representative on the nominating commission for the District of Columbia courts. He claimed that officials told him that he was "too liberal," "not politically reliable," and that he had failed the "litmus test for philosophical orthodoxy."
Justice Department officials, however, repeatedly denied having a "litmus test." In White House counselor Fred Fielding's words, "no one factor was considered." Candidates, they contended, were asked about past rulings and hypothetical cases dealing, admittedly, with heated issues like abortion but that was to "see how they think through a case" and where they stood on the role of the courts. As Attorney General Meese further explained: "We do discuss the law with judicial candidates. ...In discussing the law with lawyers there is really no way not to bring up cases--past cases--and engage in a dialogue over the reasoning and merits of particular decisions. But even here, our primary interest is how someone's mind works, whether they have powers of discernment and the scholarly grounding required of a good judge." Others in the administration defended their screening process on the ground that a president who fails to scrutinize the legal philosophy of federal judicial nominees courts frustration of his own policy agenda.
Such explanations satisfied few critics and troubled moderate Republican senators. Indeed, it was the latter who had the toughest time with Reagan's Judicial Selection Committee. And that, perhaps, is one of the best measures of the extent to which the administration placed its own ideological and legal-policy goals above partisan patronage, and at times even above the professional qualifications of potential judicial nominees. Prior administrations usually deferred to senators in their own party when filling lower court vacancies. This meant occasionally bargaining and sacrificing their own legal-policy goals. But Reagan's Justice Department was decidedly less willing to do so. That in turn led to delays in filling some judgeships and occasionally to rather bitter fighting within the Republican Party. In Pennsylvania, for example, six vacancies remained open for almost two years due to the DoJ's refusal to nominate James R. McGregor, a respected trial court judge supported by Pennsylvania's two Republican senators, Arlen Specter and John Heinz. McGregor was deemed too lenient on criminal justice matters, and only after Democrats regained the Senate in 1987 did the department finally agree to his nomination.
There were also instances when the Justice Department was forced into hard horse trading in order to win Senate confirmation for its judicial nominees. Daniel Manion's controversial confirmation for the U.S. Court of Appeals for the Seventh Circuit illustrates how far the Reagan presidency at times pressed its legal-policy goals and took a hard-line approach when dealing with moderate Republicans. Manion was narrowly confirmed by a vote of 48-46, but only after the Justice Department was forced to trade other judgeships for the votes of moderate Republican senators. Minnesota's Republican Senator David Durenberger withdrew his opposition to Manion after the department relented on a year long veto of the nomination to a district court of his friend and past president of Minnesota's state bar association, David Doty. Then, Washington's Republican senator Slade Gorton shifted positions on Manion, casting a crucial vote for confirmation despite widespread criticism of the nominee by the legal profession and a sitting judge on the Seventh Circuit. He did so because the Justice Department finally approved, after nearly a year, William Dwyer for a district judgeship in his home state. (That well-publicized incident, however, became a campaign issue that contributed to his defeat for reelection, though he subsequently ran again and was reelected.)
Notably. in the case of Manion and a few other controversial judicial nominations, President Reagan made personal phone calls to pivotal senators that paid off and underscored his commitment to reforming the federal judiciary through his judicial appointments.
In sum, the Reagan administration's meticulous screening of judicial nominees and hard-line positions with moderate Republicans challenged the norms of senatorial patronage. They nevertheless strengthened presidential control over judicial selection, even at the cost of some tough confirmation battles and a few setbacks. The nomination of Jefferson B. Sessions III to a district court in Alabama, for instance, was narrowly defeated by the Senate Judiciary Committee; this had happened only once before in the previous half century. Sherman Unger, the only Reagan nominee rated "not qualified" by the ABA, confronted stiff opposition but died before his confirmation. A few others also ran into trouble, and Reagan was forced to withdraw them from consideration. Some, like law school professors William Harvey, Bernard Seigan, and Lino Graglia, had received unfavorable ABA reports and met with strong opposition due to their positions on economic and constitutional rights. Still, considering the unrivaled number of appointments, Reagan achieved remarkable success, suffering really only one major defeat, his nomination of Judge Bork to the Supreme Court in 1987.
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Reprinted from The Reagan Presidency: Pragmatic Conservatism and Its Legacies, edited by W. Elliot Brownlee and Hugh Davis Graham, (c) 2003 by the University Press of Kansas. Used by permission of the publisher.