Judges with Their Minds Right

By Ezra Bowen

The advertisement begins: "Imagine if the Far Right had veto power over America's judges. They do." This salvo, from the liberal activist group People for the American Way, is aimed at President Reagan and his intensifying drive to create a staunchly conservative federal bench for America to remember him by. Liberals have good reason for concern. To date the Senate has approved 223 of Reagan's meticulously screened appointees, or roughly 29% of federal judges. By the end of his tenure he may top the 50% mark, not a surprising rate for a two-term President. But because of an expanded judiciary, he might make the most appointments ever, thus reshaping the federal bench--including perhaps the Supreme Court--substantially in his own ideological image.

"I intend to go right on appointing highly qualified individuals [who will not be guilty of] disenfranchising the people through judicial activism," exulted the President in a speech to federal prosecutors in Washington last week. To end years of what he called "political action or social experimentation" from the bench, Reagan favors judges who follow the so-called doctrine of original intent, under which courts avoid rulings not clearly envisioned by the framers of the Constitution. In recent weeks Attorney General Edwin Meese has put signposts on these principles by attacking some pivotal Supreme Court decisions, including the Miranda ruling that police must inform suspects of their rights before questioning. "Miranda only helps guilty defendants," Meese told U.S. News & World Report.

To Administration opponents, that kind of judicial restraint sounds like an attack on three decades of decisions expanding basic rights. Liberal Justice William Brennan was sufficiently troubled to make a rare off-the-bench speech on the subject. "We current Justices read the Constitution in the only way that we can: as 20th century Americans," Brennan unrepentantly told a Georgetown University audience three weeks ago. It is "little more than arrogance" to believe that anyone can "gauge accurately the intent of the framers." Last week Moderate Justice John Paul Stevens weighed in with remarks to a group of Chicago lawyers, attacking elements of the Meese-Reagan "original intent" vision because it "overlooks the importance of subsequent events in the development of our law." Even Conservative Justice William Rehnquist spoke out last week, though more cryptically, when he criticized Franklin Roosevelt for his "quite unnecessary" zeal in trying to pack the Supreme Court with supporters.

Whatever modern relevance Rehnquist may have been suggesting, other critics charge that the Reaganauts, having failed to get Congress to enact the conservatives' social agenda, are seeking to build a court lineup that will do the job, just as liberals did in earlier years when they found Congress resistant to their goals. "If the Reagan counterrevolution is to be successful," says Ralph Neas, executive director of the Leadership Conference on Civil Rights, "it must be done in the judiciary. That's their highest priority for the next three years."

The President now has 85 vacancies to fill on the federal bench and 25 nominations waiting in the Senate for confirmation. Perhaps the two most prominent choices are James Buckley, 62, currently president of Radio Free Europe/Radio Liberty, for the District of Columbia Circuit Court of Appeals and Berkeley Law Professor John Noonan, 59, for the Ninth Circuit in the Far West. The Administration has set up an elaborate process to examine candidates. Each receives a ten-page questionnaire. A daylong interview follows at the Justice Department. Further hurdles include review by a special Administration committee that meets each Thursday and approval by the Attorney General before a name goes to the President for a final decision. Previous Administrations have been nowhere near as thorough. "The review process is more intense," agrees former Justice Department Official Bruce Fein.

One result is an impressive level of competence. The American Bar Association (A.B.A.) has rated half of Reagan's first-term nominees to the district court exceptionally well qualified or well qualified, a level matched in the previous four presidencies only by the Carter Administration. At the appellate level he has chosen a number of stars. "John Noonan is one of the five smartest guys in the world," says one Justice official proudly. He is also the author of scholarly books on the history of bribery and the Catholic Church's teaching on contraception, though this clearly counts less than the fact that he is an articulate critic of abortion. "This is the most self-conscious ideological selection process since the first Roosevelt Administration," contends Sheldon Goldman, a University of Massachusetts professor who has closely examined the Reagan nominations. Conservative supporters of the President do not deny it. Patrick McGuigan of the Free Congress Research and Education Foundation claims that the only question should be: "Does this guy comport with the President's ideology? If he doesn't, you don't nominate him."

The screening process is not that narrowly focused, protests Grover ("Rocky") Rees III, who is Meese's special assistant for judicial selection. "We don't have any litmus test." Perhaps not, but the checking procedure has derailed the nomination of the Justice Department's own Deputy Solicitor General, Andrew Frey, for, among other things, his support of an antihandgun group. It also disqualified Judith Whittaker, a highly rated Republican lawyer from Kansas City, for supporting the Equal Rights Amendment.

Administration officials admit that they have been indulging at least one prejudice. "There is a conscious attempt," says Rees, "to avoid appointing people who will be on the bench only a few years." Typically, too, appointees are male and white. Only four of Reagan's judges are black, eleven Hispanic, and 22 female. The long-term impact of younger white male appointments is troubling to liberal activists like Elaine Jones of the NAACP Legal Defense and Educational Fund. "They will just be hitting their stride in 15 years," she says. "In any question that pits the rights of the individual against the power of the state, we are going to see individual rights suffering." The President's judges are already pushing his message. D.C. Circuit Court of Appeals Judge Robert Bork, a former Yale Law School professor, has called the Supreme Court's 1973 pro-abortion decision in Roe vs. Wade a "wholly unjustifiable usurpation of state legislative authority."

Increasingly aware of the stakes and feeling somewhat upstaged by the well-oiled conservative machinery, Democratic Senators plan to ask tougher questions of the Reagan nominees, and have hired their own judicial-selection specialist. Some liberal lobbyists are campaigning to head off targeted candidates before the President formally chooses them. One measure of that tactic's success may be the fate of Law Professor Lino Graglia of the University of Texas, who has publicly opposed busing. He is expected to be nominated soon, despite a strong effort to persuade the A.B.A. to find him unacceptable.

"Some of our critics do have litmus tests," complains Rees angrily. "They say that no matter how well qualified a candidate is, he can't be a judge if he shares President Reagan's opinion of abortion or affirmative action." The escalation of partisan infighting has begun to worry close observers who take neither side in the fray. Constitutional Scholar Archibald Cox, who was fired as special Watergate prosecutor by President Nixon, fears that politicizing the appointment process endangers something more crucial to the nation than either party's social agenda. He warns, "The idea of judicial independence may be at risk." Neither side could welcome such a result. The intent of the framers on that point is beyond debate. --By Ezra Bowen. Reported by Anne Constable/Washington

With reporting by Reported by Anne Constable/Washington