Reagan Packs the Federal Judiciary

By Schwartz, Herman | The Nation, May 4, 1985 | Go to article overview

Reagan Packs the Federal Judiciary


Schwartz, Herman, The Nation


These are grim times for individual rights and social justice, and the situation is getting worse, especially in the Federal courts. The Reagan Administration is appointing to the bench a horde of ideologues bent on turning the clock of jurisprudence back at least to the pre-Warren era and perhaps to the pre-New Deal days. The relatively short era of judicial protection for the weak and the unpopular may soon be over.

During the Presidential campaign, Walter Mondale raised the specter of radical right influence over Supreme Court appointment. But just as dangerous, and more likely, is ultraconservative dominance in the lower Federal courts. Ronald Reagan's ability to reconstruct the Supreme Court depends on death or retirement, but no such contingencies limit his power on the lower Federal judiciary. By 1988, he could appoint some 400 judges, replacing well over half the 744 active Federal judges--more than any President in history has.

By choosing judges sympathetic to his views, Reagan can shape the course of American law for the next twenty-five to thirty years. In the 1983-84 term, for example, the twelve United STates Courts of Appeals decided more than 31,000 cases, of which the Supreme Court will probably review less than a hundred. These courts have a particularly great impact on regulatory law, which is a joint product of action by Federal agencies and review by the Courts of Appeals. With Reagan's appointees now running the agencies, a conservative hold on the appellate courts would remove one of the few remaining checks on the Administration's efforts to dismantle the regulatory machinery built up over the past fifty years under Republican and Democratic Presidents.

Control of the District Courts, which tried almost 300,000 cases in 1983-84, will also advance the extreme right's agenda. If the District Court's findings of fact are stacked against the loser, even an appeal to a sympathetic higher tribunal has little chance of success.

The reagan Administration's choices for vacancies on the Federal courts are being made with what political scientist Sheldon Goldman calls "absolutely extraordinary commitment and diligence" to insure that only pure conservatives are named. Selection of Appeals Court judges is controlled by Attorney General Edwin Meese 3d and is rigidly ideological. Amny district judges, whose nomination is traditionally determined by a state's U.S. Senators, are being selected by Jesse Helms and John East in North Carolina, Jeremiah Denton in Alabama, Orrin Hatch in Utah, Phil Gramm in Texas, and those of similar views in other states.

These people are looking for what the ultraconservative magazine Benchmark called "a new breed" of Federal judge: bright, ideologically committed to extreme conservatism and unusually young. richard Posner, an antitrust expert often mentioned for the Supreme Court, became a judge on the U.S. Court of Appeals for the Seventh Circuit, where much of the nation's antitrust law is made, at 42. Frank Easterbrook, an expert in business law from the University of Chicago who is joining Posner on the Seventh Circuit, is only 35. J. Harvie Wilkinson, nominated over bitter opposition from civil rights groups to the Fourth Circuit, which has jurisdiction from Maryland to South Carolina, was 39 when nominated. Kenneth Starr, who was an assistant to former Attorney General William French Smith, was named to the U.S. Court of Appeals for the District of Columbia when he was 36. Alex Kozinski, soon to be nominated to the Ninth Circuit, which covers Texas and Louisiana, is 36. Sid Fitzwater, only 31, was proposed by Phil Gramm to the Federal District Court in Texas.

Thr youthfulness of these appointees reflects a deliberate strategy of choosing judges who are "going to be there for a long time," as Gramm put it. Speaking of Fitzwater, Gramm said, "The added bonus ... is that he will be making rulings when I'm dead. …

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