The Reagan Brand on the Judiciary

By Bennett H. Beach

His choices are white, male, conservative and solidly competent

Ronald Reagan has rarely written himself a better script. Faced with filling a vacancy on the U.S. Supreme Court, he named the high bench's first woman Justice: the capable, personable and conservative Sandra Day O'Connor. The President's backers were mostly delighted, and his critics were momentarily disarmed. At the midpoint of his term, the choice of O'Connor continues to control the public impression of Reagan's judicial nominations. With little public fanfare, he has appointed 88 other judges to life tenure on district and circuit courts--the federal trial and appeals bench. They, and other nominations to come, assure Reagan a potent legal legacy that some judiciary watchers find thrilling, others chilling. As a group, his choices very much wear the Reagan brand: they are mostly white, male and conservatively Republican. At the same time, as even some liberals admit, they are solidly competent.

During the 1980 campaign, Candidate Reagan inveighed against left-leaning activist judges and promised a dramatic change; his Republican platform called for the appointment of judges who would restore respect for "traditional family values and the sanctity of innocent human life." The ideological thrust so distressed a group of 61 practicing lawyers and law professors that they signed an advertisement urging Reagan's defeat be cause he was a threat to an "independent judiciary." Last week TIME completed a straw poll of the signers to see if they still believe as they did in 1980. Of those who were willing to record their opinion, the vast majority said they would sign the ad again, and most thought the Reagan choices were too "rigidly conservative." But only one-third thought that his judges were "significantly lower" in quality than those of President Carter.

In fact the ratings given Reagan's appointees by the tradition-minded American Bar Association are nearly the same as those given to Carter's. About 6% in each group got the highest ranking, "exceptionally well qualified"; while Carter named three judges who were found "not qualified," none of Reagan's has suffered that stigma. Says one Democratic aide on the Senate Judiciary Committee: "There have been some ultraconservative judges, but there has been an absence of real clinkers." (For brief profiles of three Reagan judges, see below.)

There has also been another glaring absence: new black faces. Reagan's sole black appointment is Appeals Court Judge Lawrence Pierce of New York, who was elevated from federal district court. Only two Hispanics have been appointed, and they serve in Puerto Rico. Four, including O'Connor, are women. (There are three more women and two Hispanics among 21 nominees now awaiting Senate confirmation.)

The Reagan record in this area is particularly distressing to many because of his predecessor's success at increasing the representation of those groups on the bench. Of Carter's 262 appointments, 15.3% were women, 14.5% were black and 6.1% were Hispanic. Jonathan Rose, an Assistant Attorney General, maintains that the country is paying for Carter's high percentages. "Some of those judges can't carry the load; some are weak in areas of the law," says Rose. "I'm not sure the aim of diversity is well served if quality is sacrificed at the same time."

That critique will scarcely calm angry minorities and women. "We knew darn well they weren't going to be appointing Hispanics in this Administration," says Arnold Torres, executive director of the League of United Latin American Citizens. Torres adds that his organization no longer bothers to lobby the White House on judicial choices. His anguish is shared by District of Columbia Superior Court Judge Gladys Kessler, head of the National Association of Women Judges. "The record is dismal," says Kessler. "We have some grave concerns about whether this Administration is really looking for women candidates." She also charges that potential female judges are being scrutinized more closely than males on their opposition to abortion.

"I wish she were right, but she is dead wrong," complains Dr. J.C. Willke, president of the National Right to Life Committee. The Administration is failing to emphasize nominees' views on the issue, he insists. "This is our greatest disappointment." But on other matters political and philosophical, the Reagan judges seem to be just what he promised voters two years ago.

It is as traditional as campaign buttons for Presidents to nominate like-minded judges, but Reagan has been unusually loyal to his party. Says University of Massachusetts Politics Professor Sheldon Goldman, a longtime student of appointments: "This Administration has selected a higher percentage of partisans than any since Woodrow Wilson's." Goldman calculates that Reagan has gone outside his party for only 2.9% of his district court appointments, compared with 4.5% for Jimmy Carter and 7.2% for Richard Nixon. One aspect of the political pattern has even the Administration upset, however. Under the longstanding system of "senatorial courtesy," the President generally fills vacancies from lists provided by Republican Senators. This is one reason for the heavy white, male tilt, say Administration officials. They recently passed the word to Senate leaders that the President wants more minorities and women among the proposed names.

Nonetheless, there is no desire to ease up on finding judges who will turn the tide against liberal activism. The President has reached into academia to sign up some of the most powerful proponents of conservative views. One is Richard Posner, 44, who was appointed to the Seventh Circuit Court of Appeals from the University of Chicago Law School. A champion of the free-market economic views of the Chicago school, he is a brilliant foe of much Government business regulation and of the nation's antitrust laws. To critics like Rob Warden, editor of Chicago Lawyer, "He's an intellectual bully. The other judges on the court are afraid of him." In one year on the job, Posner has written more opinions, often witty and concise, than some judges do in ten. Among Reagan's other star academic recruits to appeals courts: Ralph Winter, 47, of Yale Law School, a conservative expert in many legal areas; Antonin Scalia, 46, another Chicago law professor, who specialized in administrative law; as well as former Solicitor General Robert Bork, a longtime constitutional-law professor at Yale.

Such minds are among the least-known and most important assets of the Reagan revolution. His choices now account for less than one-seventh of the 656-judge federal bench. But if the current pace of judicial vacancies continues, he might be able to name more than half of the federal judiciary by the end of a second term. And he may also get to create his own majority in the Supreme Court, where five Justices are over 70, including its lone liberals, William Brennan and Thurgood Marshall. On the evidence to date, his choices will be firmly conservative, and worse yet for liberals, they will be good at it. --By Bennett H. Beach. Reported by David S. Jackson/Washington

With reporting by David S. Jackson/Washington This file is automatically generated by a robot program, so viewer discretion is required.