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When then-Attorney General Edwin Meese III told the American Bar Association two decades ago that he wanted to pursue a “jurisprudence of original intention,” it was a rallying cry. Now it looks more and more like a prognostication. Meese’s 1985 speech to the ABA hallmarked a calculated effort to reshape the federal judiciary in a far more conservative vein — one that emphasized a more literal reading of the Constitution, a more restrictive view of judicial power, and a more deferential approach to the executive and legislative branches of government. “Make no mistake,” Meese said then, “judicial power is governmental power.” At the time, Meese was talking about the need for judicial restraint. But the movement he helped spark has become a powerful force all its own. And while it has succeeded in placing judges who share its values on the Supreme Court, such as Antonin Scalia and Clarence Thomas, John Roberts Jr. is clearly its first true product who may reach the high court. “Roberts,” says American University Washington College of Law professor Herman Schwartz, “is the finest flower of this effort to have bright, young, affable, very conservative judges, people who’ve had experience on the bench and in high positions in government.” Stephen Markman vetted judicial appointees as head of the Justice Department’s Office of Legal Policy during the Reagan administration. He says the effort to recruit jurists who shared President Ronald Reagan’s view of emphasizing the plain text of the Constitution — “what the law is, not what it ought to be” — was both “comprehensive and systematic.” “Reagan had certain judicial values he wanted institutionalized on the bench,” says Markman, now a judge on the Michigan Supreme Court. The results have been telling: a reined in commerce clause diminishing Congress’ ability to regulate, sweeping state immunity from most private lawsuits, an increasing emphasis on state and individual rights, and, ironically, a smaller Supreme Court docket as appellate courts fall in line with current Court sympathies. While conservatives label these developments as classic examples of restraining the power of the federal government and the judiciary, liberals see something very different — an activist, right-wing judiciary shaping the courts to conservative standards. “The conservative seizing of political power is part of a very broad vision to change the culture of the United States,” notes New Democratic Network President Simon Rosenberg. “The federal judiciary fits into the context of the broader march.” The idea was to create a deep swath of judicial candidates who could ascend from the federal district courts to the appeals courts and, finally, to the high court; the emphasis was on finding young judges who could influence jurisprudence for decades. According to the Federal Judicial Center, active, Republican-appointed district judges now outnumber Democrats by 344 to 299; active, Republican-appointed appeals court judges outnumber their Democratic counterparts by a margin of 98 to 68. “The bench strength is much stronger today,” says Meese, who has been a fellow at the Heritage Foundation since 1988. Those district and appellate judges, of course, had their own feeder systems, including membership in the Federalist Society, which was only just beginning in the early 1980s; clerkships for like-minded Supreme Court and appellate judges; and politically sensitive jobs in both the White House and the Justice Department. “The seeding of the federal judiciary with bright, principled conservatives provided a ready-made pipeline and network for newly minted law students philosophically aligned with those judges,” says Bradley Berenson, a partner at Sidley Austin Brown & Wood who left the White House Counsel’s Office in 2003. “All of the people working in the Counsel’s Office were certainly conservative Washington lawyers who had come up through the same network of clerkships,” adds Berenson, who clerked for Laurence Silberman, a Reagan appointee on the U.S. Court of Appeals for the D.C. Circuit, and for Reagan Supreme Court appointee Justice Anthony Kennedy. And the ideological pipeline into that judiciary is only getting stronger. Leonard Leo, the executive vice president of the two-decade-old Federalist Society, says its membership, now at 35,000, is growing at a 15 percent to 20 percent annual clip. At the same time, the eight years of President Bill Clinton, sandwiched between George H.W. Bush and his son, were notable for their lack of attention to the federal judiciary, at least from an ideological perspective. “Clinton didn’t believe in judicial power as a way to achieve results,” notes William Marshall, who spent eight years in the Clinton administration as an associate and deputy White House counsel. But the Reaganites’ and their successor GOP administrations’ emphasis on the federal district and appeals courts eventually did start to pay off, says Marshall, and it was not just with hot-button issues like abortion and school prayer. The high court’s 5-4 decision handing the 2000 presidential election to George W. Bush, says Marshall, “was a real wake-up call.” “The Reagan Justice Department and the Federalist Society saw a long time ago that a concerted, long-term, and committed effort to change the nature of the federal judiciary would achieve substantial results,” says Marshall, a law professor at the University of North Carolina. RIGHT PLACE, RIGHT TIME Into this framework walked the ambitious Roberts. He clerked for then-Associate Justice William Rehnquist and for Dwight Eisenhower appointee Judge Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit. He also held three high-level jobs in two Republican administrations. “Roberts’ service started with Rehnquist, and that was critical for being selected by [former White House Counsel Fred] Fielding to be an associate in the White House Counsel’s Office, and that was critical to becoming deputy solicitor,” notes Pepperdine University Law School professor Douglas Kmiec, referring to Roberts’ last administration job as the principal deputy under former Solicitor General Kenneth Starr, who is now Pepperdine’s dean. “All that work was the corpus of information that recommended him to the president to be nominated initially [as an appeals court judge] in 1991,” says Kmiec, the principal deputy at the Justice Department’s Office of Legal Counsel during Reagan’s second term. “This is how corporations promote people: You do a good job at a small task and you’re promoted to a bigger one,” adds Kmiec. And while the White House says that Bush considered a wide range of potential candidates for the high court, at the end of the day he picked a nominee who seemed to fit the Meese profile right down to his age. “I just offered the job to a great, smart 50-year-old lawyer,” Bush reportedly told aides the day he chose Roberts.
T.R. Goldman can be contacted at [email protected].

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