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Reagan's legal revolution lives through federal bench appointments
Tuesday, June 08, 2004

WASHINGTON -- In 1988, in a speech to the Federalist Society, a group of conservative and libertarian lawyers and law students, President Ronald Reagan recalled that he had promised to appoint federal judges "who didn't share the skepticism of our extreme liberal friends about the fundamentals that underpin our laws and our society. We would select judges who would reaffirm the core belief of our free land -- and we have."

Reagan then reeled off the names of William Rehnquist, whom he had elevated to chief justice of the United States; Supreme Court Justices Sandra Day O'Connor, Anthony Kennedy and Antonin Scalia; "and of course Judge Robert Bork," whose nomination to the high court the year before had been defeated in the U.S. Senate.

As Americans reflect on the legacy of the 40th president, who died Saturday after a long battle with Alzheimer's disease, many legal observers see Reagan's 358 appointments to the federal courts as one of his most enduring legacies. Three hundred six of those appointees are still on the bench.

David M. O'Brien, a Supreme Court expert at the University of Virginia, said that when it came to selecting judges, the Reagan administration was the "most ideologically coherent" administration in history.

"They refused to nominate nominees promoted by moderate Republicans," O'Brien said, recalling that Reagan Attorney General Edwin Meese once told a lawyers' group that the president's judicial appointments would institutionalize the Reagan revolution regardless of what happened in future elections.

"Reagan and his folks put in a systematic effort to reshape the federal judiciary in a very right-wing mold," said Eliott Mincberg, vice president and legal director of the liberal group People for the American Way. "I think they had an enormous amount of success."

Mincberg said the administration sought candidates in their 30s and 40s to ensure that they would have a lasting effect on the law.

Many legal observers say that is exactly what happened, especially on the Supreme Court, where the Reagan appointees -- joined by Justice Clarence Thomas, who was appointed by the first President Bush -- have upheld vouchers for student at parochial schools, lowered the wall separating church and state, limited the exposure of state governments to private lawsuits in federal court, curbed affirmative action and made it easier for condemned murderers to be executed.

They also have preferred not to decide some questions. In general, said University of Pittsburgh law professor Arthur D. Hellman, "Reagan-appointed judges demonstrate skepticism about judicial intervention that you did not see generally in Jimmy Carter's appointees."

Herman Schwartz, a law professor at American University and the author of "Right-Wing Justice: The Conservative Campaign to Take Over the Courts," uses stronger language. In an interview yesterday, he said Reagan and Meese used the judicial selection process to promote a "counterrevolution against the New Deal and the cultural changes of the 1950s."

Yet on one issue dear to Reagan's heart, his appointments have not changed the law as he would have liked. In his 1988 Federalist Society speech, Reagan called for "an end to the fanciful readings of the Constitution that produce such decisions as Roe v. Wade." In a 1992 Pennsylvania case, two Reagan appointees -- O'Connor and Kennedy -- voted to reaffirm the basic constitutional right to an abortion announced in the 1973 Roe decision.

The 1992 abortion decision proves that presidents cannot always predict how their appointees will vote. But O'Brien points out that O'Connor, whose vote was crucial in salvaging the right to abortion, was the exception that proved the rule when it came to Reagan's slate of judges.

In the 1980 election Reagan promised to appoint a woman to the court, O'Brien noted, and he did, even though "there were very few conservative women judges available."

O'Brien added that Kennedy, the other Reagan justice who voted to preserve a right to abortion, was not Reagan's first choice. "Bork would have filled that slot" and provided a fifth vote to repudiate Roe, he noted.

Not everyone shares the view that Reagan judges are either cookie-cutter conservatives, as liberals charge, or principled adherents of the "original intent" of the framers of the Constitution, as the president who appointed them maintained.

As early as 1987, an article in the Washington Post noted that some Reagan judges in their rulings had "ignored conservative causes, rejected the Republican platform, and repudiated the religious right."

Part of the explanation, Hellman said, is that "even people who should know better think that people who agree with them on one issue will be on their side on every other issue." He cited the example of John Noonan, a law professor known for his anti-abortion views when Reagan appointed him to the 9th U.S. Circuit Court of Appeals based in San Francisco. To the dismay of conservatives, Noonan, once on the bench, proved to be an eloquent critic of the way the death penalty was imposed.

As for "original intent," H. Jefferson Powell, a constitutional historian at Duke University Law School, said: "I do not believe that any judges conform their constitutional decisions to original intent, original meaning, or original anything. They use originality arguments when helpful, and ignore them otherwise. We the American people have no judges who restrain themselves because of respect for democratic decision-making."

First published on June 8, 2004 at 12:00 am
Michael McGough can be reached at mmcgough@nationalpress.com or 1-202-662-7025.
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