Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Like no president before him, Ronald Reagan invested his time and political capital in reshaping the judiciary, from the Supreme Court to the lowliest district court. While many prior presidents regarded judgeships as a patronage tool to placate senators, Reagan cast a shadow forward into history by naming judges who would mold the federal bench in his conservative image. In doing so, he forever changed the judicial nominations process. By contrast, President Bill Clinton saw no point in triggering costly political fights over controversial nominees. And President George W. Bush, through provocative lower court nominations, has used appointments in part to highlight differences with Democrats. Reagan, who died June 5, left a legacy on the courts that persists: Four of the nine Supreme Court justices were appointed or, in the case of Chief Justice William Rehnquist, elevated by Reagan. And most of the 372 life-tenured judges he appointed are still on the bench. “He took the confirmation process to a whole new dimension, to the level of a political campaign,” says Charles Cooper, a partner in D.C.’s Cooper & Kirk and a key aide in Reagan’s Justice Department. Apart from Reagan’s role in defusing the Cold War, Cooper says, “The most valuable and lasting contribution of his presidency will be the legacy of his appointments to the federal bench.” Cooper and others last week recalled the war-room-like intensity of the Justice Department’s team of lawyers who focused on judicial nominations, with top and midlevel officials scouring 10-year-old law review articles to prepare dossiers on potential nominees well in advance of vacancies. “It was a very exciting time. There was a passion and commitment, a real belief in the power of ideas,” recalled Roger Clegg, now vice president of the Center for Equal Opportunity. It was no coincidence, he added, that the Federalist Society was born in 1982, the second year of the Reagan administration. “The Democrats didn’t know what hit them,” says Herman Schwartz, professor at American University’s Washington College of Law and author of the new book Right Wing Justice: The Conservative Campaign to Take Over the Courts, which traces the origin of the modern conservative judicial movement back to Reagan. In 1985, as part of the judicial nominations task force, Clegg authored an internal memorandum defining the attributes of an ideal Supreme Court justice. Among them: “refusal to create new constitutional rights for the individual” and “deference to states in their spheres,” as well as “legal competence” and “strong leadership on the court/young and vigorous.” Clegg wrote the memo more than a year before Chief Justice Warren Burger informed President Reagan of his intention to retire. Burger gave notice on May 27, 1986, and by June 17, Reagan was able to surprise the nation by announcing not only Burger’s retirement but also Rehnquist’s elevation to the chief justiceship and Antonin Scalia’s nomination as associate justice. Administration officials had long considered the possibility that Burger would retire, and memos had been written on the pros and cons of elevating one of three associate justices to replace him: Sandra Day O’Connor, Byron White, or Rehnquist. White was deemed too old. O’Connor, though she was the judicial pride and joy of Reagan’s first term, had already in her five years on the high court raised “serious concerns about the depth and consistency of her commitment to judicial restraint,” according to a White House memo. Rehnquist was the clear pick. As for Scalia, reams of background material had been been compiled, and Justice Department lawyers were astonished to report in another memo that they could not unearth a single opinion by him that “seemed problematic from a conservative point of view.” University of Connecticut political science professor David Yalof came across these memos and dozens of others at the Reagan Presidential Library while researching his 1999 book, Pursuit of Justices, on how presidents from Harry Truman on handled Supreme Court nominations. Yalof had already visited the Truman, Nixon, and Ford libraries. “What I saw in the Reagan papers really blew all the others away,” Yalof recalled last week. “It was a really groundbreaking approach. No other president approached that level of research and fine-tuning. It is a real testament to just how important nominations were to the Reagan presidency.” Where did Reagan’s own passion for recasting the judiciary originate? Most historians point to his previous tenure as California governor. “He presided over a state, many of whose institutions were effectively being run by federal judges — the prisons, the schools,” says Cooper. Reagan had a storehouse of anecdotes he would tell about judges who coddled criminals or thwarted businesses. And liberal state judges like the late Supreme Court Justice Rose Bird, appointed by his successor Jerry Brown, had also irked Reagan by halting executions of death row inmates. Pepperdine University School of Law professor Douglas Kmiec says Reagan also brought with him from California a rigorous system for picking judges, with extensive “due diligence” research into potential nominees’ legal and personal backgrounds. Fellow Californians Attorneys General William French Smith and Edwin Meese III adapted those techniques to Reagan’s new job. “It wasn’t just pleasantries and who do you know,” says Kmiec, who headed the Justice Department’s Office of Legal Counsel from 1985 to 1989. “The questioning was as serious as for any Rhodes scholar — the most thorough personnel screening process I ever encountered.” And the questioning involved substantive issues, Kmiec adds, though he says it stopped short of a litmus test. “We didn’t ask for outcomes. We knew that would be wrong.” But he also said that on abortion, for example, if the vetting of a nominee had proven to the administration that he or she was “faithful to the text and the structure and the history,” the outcome could be presumed without asking. “We never discussed Roe v. Wade,” says Arthur B. Culvahouse Jr., Reagan’s White House counsel from 1987 to 1989, now chairman of O’Melveny & Myers. “ The only guidance that I ever received from the president in vetting potential nominees for the judiciary was that he did not want to see any more judges or justices who would invent new theories to set guilty criminals free.” Reagan’s first term brought the serendipity of an early chance to fulfill a campaign promise by naming O’Connor the first woman on the Supreme Court. The first term brought what Yalof also saw as a new phenomenon, which he calls “breeding justices.” Reagan began to fill appeals courts with ideological soul mates, many of them from law schools: Frank Easterbrook and Richard Posner on the 7th Circuit, J. Harvie Wilkinson III on the 4th Circuit, Pasco Bowman II on the 8th Circuit, Robert Bork and Antonin Scalia on the D.C. Circuit, and Ralph Winter Jr. on the 2nd Circuit. One of the administration’s goals was to keep an eye on these new judges to see if they would stay the conservative course and become Supreme Court timber. Bork later joked that Reagan had ruined American legal education by raiding its law schools and putting its top conservatives on the bench. Scalia’s appeals court tenure passed the Reagan test for the Supreme Court with ease; Posner, with his occasionally quirky views and rulings, failed it. And Bork? That was a whole other story. Bork, who had been passed over twice for a Supreme Court nomination in favor of O’Connor and Scalia, finally got his chance in 1987 when Lewis Powell Jr. announced his retirement — this time without advance warning to the White House. Bork’s powerful conservative record and his combative style made him the ideal Reagan candidate, but also the perfect Democratic target. Fearful that Bork might be passed over again, his supporters in the administration mobilized quickly to make sure that moderates like Howard Baker, the new chief of staff, would not scuttle Bork’s nomination in favor of what was called “an 80-percenter” — someone whose voting record was only 80 percent of the conservative ideal. Cooper and William Bradford Reynolds, now a partner in the D.C. office of Howrey Simon Arnold & White, conferred with John Bolton, now undersecretary of state, on how to make Bork the nominee, according to Ethan Bronner’s account in the 1989 book Battle for Justice. They agreed, Bronner wrote, that “If you can’t get Bob Bork on the Court, you might as well shut the door and turn out the lights.” But Bork’s nomination failed by a 58-42 Senate vote on Oct. 23, 1987, after a battle that has been rivaled since only by that over Clarence Thomas’ nomination in 1991. “The Bork nomination was a threshold across which we have never returned,” says Kmiec. The Reagan White House, aided by conservative groups, mounted an unprecedented public relations campaign to promote Bork, including advertising and unheard-of interviews with the press after he was nominated. Bork declined to be interviewed last week. Bork was put through numerous “murder boards” to prepare him for the testimony, Kmiec recalls. “The intensity of the battle can’t be described,” says Cooper now. “It was a 24-hour-a-day, 7-day-a-week ordeal.” The Senate Judiciary Committee hearing lasted four days, with Bork answering more questions than he probably should have, unrepentant about his conservative views and immodest about the prospect of the “intellectual feast” that awaited him on the Supreme Court. Reagan stood by Bork to the last, and after Bork’s defeat praised him for “courage in facing an uphill battle to maintain the independence of the judiciary.” After another misstep with the nomination of Douglas Ginsburg, Reagan finally found a nominee the Senate’s Democratic majority would confirm: Anthony Kennedy, once viewed as a suspect “80-percenter,” but after Bork and Ginsburg seen as an acceptable compromise candidate. He was confirmed unanimously in February 1988 by a relieved Senate. The fact that Kennedy has wielded a vote on the Court for the last 16 years instead of Bork has undoubtedly had profound consequences in areas of the law ranging from abortion to affirmative action. And O’Connor’s frequent role as a moderating swing vote was not what Reagan envisioned. But Kmiec, for one, thinks Reagan would still be proud of his Supreme Court picks. “He would have disagreed with some of their decisions, but I think he would have respected their reasoning.” And their occasional deviation from conservative orthodoxy does not detract from the power of Reagan’s judicial record, says Kmiec. “Faithfulness to the original understanding of the Constitution is now an acceptable methodology, as is a reaffirmation of federalism and separation of powers,” he says. “President Reagan turned a system dominated by party courtesy and patronage into a systematic process that was an extension of his policies.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.