Judging Reagan's Judges

A new group foresees danger in a right-wing judiciary

The occupant of the White House in the next four years is likely to be appointing several Supreme Court Justices and scores of judges of the lower federal courts. Ronald Reagan, on the basis of his own record and the party position he represents, threatens disastrous results if elected.

With those words last week, a group of some 60 lawyers, law school professors and former judges announced the formation, in New York, of a Committee for an Independent Judiciary (C.I.J.). Their aim: to work against Reagan and to try to head off votes for John Anderson that might enhance Reagan's chances. The committee, at least the second of its kind, insisted that its membership spanned a wide ideological spectrum and that its function was more educational than political. Several prominent figures on it, however, are longtime Democratic Party supporters, and it risks being viewed as just another partisan organization. Nevertheless, its formation points up how important the judicial issue has become in the presidential race:

What the C.I.J. fears, explains Jack Greenberg, director-counsel of the N.A.A.C.P. Legal Defense and Educational Fund, is the molding of a judiciary with "a monolithic right-wing ideology." It is true that Reagan has made it clear that he would appoint strict constructionists who believe in judicial restraint. But such philosophical criteria are nothing new. Presidents have tried to pick judges who read the Constitution their way since George Washington, who insisted on Federalists for his Supreme Court. President Carter, if reelected, would be no exception. Former Attorney General Griffin Bell says Carter would opt for Supreme Court candidates with progressive civil rights views and an inclination to limit Government regulation of business.

The C.I.J. members argue, however, that Reagan's standards go beyond philosophy to predetermined positions on key social issues--all the more so because he is running on the Republican platform plank calling for judges who "respect traditional family values and the sanctity of innocent human life." Says Marvin Frankel, a former U.S. district judge: "It's the opposite of the open-minded, receptive approach, ready to hear arguments before making a decision." Since his nomination, Reagan has reaffirmed the plank when asked about it, but he has not pushed it zealously. "The Governor takes that phrase at the fair value of the words," says the chief of his campaign staff, former Law Professor Edwin Meese. "He doesn't have any litmus test in mind."

During two terms as Governor of California, Reagan named 645 judges, a large proportion of them white, male and conservative. One of his three appointments to the California Supreme Court, that of William P. Clark, brought some hoots of derision because Clark was a former Reagan aide and had a poor academic record. Yet, with his prior judicial experience and the support of a topflight staff, he has ended up serving capably. By and large, most experts give Reagan reasonably high marks for his appointments and say that he used judgeships as political payoffs less often than either Edmund G. ("Pat") Brown or Jerry Brown, the father and son who served immediately before and after him. Even a Carter campaign aide concedes: "You can't go after Reagan for appointing bad judges. That's a bum rap."

President Carter's own judicial appointments stack up as one of the most impressive parts of his record, at least among liberals and moderates. He has appointed more minorities and women to federal benches than all previous Presidents combined. Some observers have consequently questioned whether he is more concerned with diversity than merit, but C.I.J. Organizer Floyd Abrams, a leading First Amendment lawyer, maintains that most of his appointees are "extraordinarily highly qualified." During his Administration, Congress has created 152 additional lower-court judgeships. "With that many new judges the tendency should have been for lower quality: a few bright lights, then politics as usual," says Thomas Susman of the Senate Judiciary Committee staff. "That isn't what Carter's done. We had more bright lights than we had any business getting."

Yet it is the Supreme Court that remains the primary concern. As Greenberg says, "It sets the direction and tone for courts all across the country." And it is the high-court selections that are expected to give the next President his greatest opportunity to put a definitive stamp on the nation's legal system: five of the nine present Justices are over 70 years old.

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