The Gipper's Constitution

By Pomper, Stephen | The Washington Monthly, December 1999 | Go to article overview

The Gipper's Constitution

Pomper, Stephen, The Washington Monthly

Republican judges are rewriting the law of the land

OCTOBER 13, 1999--DAY 6,841 OF the Reagan Revolution. The Supreme Court hears an argument in Kimel v. Florida Board of Regents. Counsel asks the Court to recognize that state employees have the right to sue their employers for violating the Age Discrimination Employment Act. If not, then state employers will be above the law--immune from damages no matter how egregiously they discriminate on the basis of age. Not only that, but states will have a legal basis to argue that this immunity should extend to private suits under other civil rights laws--like the Americans with Disabilities Act and portions of the Civil Rights Act of 1964. But from reports of the argument, you'd never know what's at stake: Chief Justice William Rehnquist yawns openly. Justices Sandra Day O'Connor and Anthony Kennedy stare into space and down at the bench. And the liberal justices offer up a pittance of supportive questions and fall silent as if to acknowledge that it's a lost cause--why bother?

How did we get here? Twenty years ago the Reagan administration had a conservative social agenda and no way to achieve it. A Democratic House of Representatives stood squarely in the way of the White House on issues like abortion, school prayer, and busing. In Pursuit of Justices, a history of the modern Supreme Court appointments process, David Alistair Yalof describes how the administration gave up on Congress and shifted its strategy to redefining the political composition of the federal courts. This was accomplished through careful screening of judicial nominees; Yalof reprints portions of a 1985 Justice Department memo enumerating the ideal attributes of a Supreme Court Justice, including:

* "disposition towards `less government rather than more"'

* "appreciation for the role of the free market in our society"

* "refusal to create new constitutional rights for the individual" and

* "respect for traditional values"

It was a brilliant strategy, with long-lived results. At the end of October, even after seven years of a Democratic administration, and the confirmation of 325 Clinton appointees to the federal bench, Republican-appointed federal judges outnumbered Democrat appointees 614 to 571. That imbalance has not been helped by the fact that it now takes roughly 201 days--compared to 38 days during the Carter administration--to shepherd a candidate through the thoroughly partisan Senate confirmation process. (At the end of October there was a backlog of 42 Clinton nominees awaiting confirmation to the federal judiciary.) A once-tenuous 5-4 conservative majority on the Supreme Court has crystallized into a consistent, reliable voting block. And conservative district court judges (the trial court judges who occupy the lowest rung in the federal court system) and circuit court judges (the appellate judges who occupy the middle level between federal trial courts and the Supreme Court) have developed increasingly aggressive tactics to achieve their ends. The result has been a growing body of conservative law which, because it is championed by lifetime-tenured judges and inscribed in precedents that are difficult (sometimes impossible) for legislatures to overturn, looks to extend the Reagan legacy well into the next century.

The most profound changes made by the Republican bench are embedded in a series of highly technical decisions generally grouped under the heading "federalism"--a term that describes legal theories allowing courts to take powers away from the federal government and give them to states. Taken alone, none of the so-called federalist decisions would have earth-shattering impact. Taken together, they have given Republican judges doctrinal cover for redesigning government, picking off civil rights protections, and weakening other federal legislation. And given the political origins of these judges, it comes as no surprise that they are simultaneously making inroads on a conservative social agenda in areas like abortion rights, campaign finance reform, and environmental regulation. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article

The Gipper's Constitution


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.