Terry Eastland: Reagan and Roosevelt Were Alike in Appointing Judiciary

Terry Eastland, in the Weekly Standard (June 15 2004):

IN THE FALL of 1981, Ronald Reagan placed a phone call from the Oval Office to a lawyer named Jesse Eschbach. Reagan had decided to nominate Eschbach to the federal bench and was calling to ask him to serve. Would he serve! Of course! Judge Eschbach later wrote Reagan to express"my deep appreciation for your kindness and consideration in calling me. It was an experience our family will never forget."

Jesse Eschbach was one of the 382 judges Ronald Reagan appointed. That was (and remains) a record number for one president. With his choices, Reagan filled almost half of the sitting federal judiciary.

Reagan made similar calls to most of his nominees. That was a Reagan innovation. The phone calls indicated how much Reagan cared about judicial selection. So did the process he instituted for vetting nominees. Reagan was the first president to bring serious candidates for the bench to Washington for extensive interviewing. More than 1,000 prospects made the trip.

Reagan had the same interest in judicial selection as his Democratic hero, Franklin D. Roosevelt, did. Presidents who served between them often saw judgeships in terms of patronage--of political favors to be dispensed. But both Roosevelt and Reagan understood judicial selection as an opportunity to influence the path of the law.

Both men felt that way because both had complaints about where the law had been going. Both contended for judges who would exercise restraint. In Reagan's case, he objected to the tendency of courts to declare rights not found in the text or history of the Constitution. To Reagan, the 1973 case of Roe v. Wade, which declared the abortion right, was the most notorious example of what a court shouldn't do.

Reagan thus initiated through his judicial selection an important argument about the proper role of the courts. The issue has dominated the politics of judicial selection ever since, with the two parties now firmly on opposite sides. The nominees fought over have included ones designated not only for the Supreme Court but also for the lower courts.

Reagan managed to get most of his nominees confirmed when Republicans held the Senate, as was the case through 1986. But when Democrats regained control in 1987, his batting average declined.

That Congress established the importance to judicial selection of divided government. George H.W. Bush faced a Democratic Senate, and Bill Clinton, for six of his eight years, a Republican Senate. Both presidents would have seen more nominees confirmed had their parties been in the majority....