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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Judges (8)\nBox: 30\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\n86 Box 30 - JGR/Judges (8) - Roberts, John G.: Files SERIES\nI: Subject File\nfile\njudges\nTHE WHITE HOUSE\nWASHINGTON\nMay 14, 1985\nFOR:\nFRED F. FIELDING\nRICHARD A. HAUSER\nSHERRIE M. COOKSEY\nH. LAWRENCE GARRETT, III\nJOHN G. ROBERTS\nHUGH HEWITT\nFROM:\nDAVID B. WALLER\nAttached for your information are two articles that appear in\nthis month's issue of Judicature. The articles are entitled\n\"Reaganizing the judiciary: the first term appointments, and\n\"The federal judiciary: what role politics?\"\nReaganizing the judiciary:\nthe first term appointments\nThe Reagan Administration is effectively reshaping\nthe federal bench. The extent to which\nits appointees will reshape public policy remains to be seen.\nby Sheldon Goldman\nR\nonald Reagan's reelection by a land-\nslide victory in 1984 was hailed by\nsome observers as a significant polit-\nical event comparable to Franklin\nRoosevelt's reelection in 1936. Both presi-\ndents received overwhelming electoral ap-\nproval, which was widely interpreted as a\nmandate to continue along the course set in\nthe first term. Both were enormously popular\nwith the large majority of the populace, al-\nthough both stimulated considerable anti-\npathy and even denigration from a vocal\nminority opposed to Administration philo-\nsophy and policy. Both elections could be\nseen as confirming a new electoral era in na-\ntional politics and new voting patterns among\nyoung voters and other population groups.\nIn addition, both presidents had spent their\nfirst terms dealing with economic crises and\nboth used Keynesian economics (without\ncredit to Keynes in the latter instance) to nurse\n313\nthe economy back to health. Both presidents\nhad a view of the role of government, includ-\ning the courts, that was radically different\nfrom their immediate predecessors in office.\nIndeed, both sought to change the direction\nof government, saw the courts as frustrating\nReagan will name\ntheir policy agendas, and self-consciously\na majority of\nattempted to use the power of judicial ap-\npointment to place on the bench judges shar-\nthe lower\ning their general philosophy. And with both,\ntheir presidential campaigns saw the courts\nfederal judiciary\nand judicial appointments emerge as issues.\nin active service.\nFranklin Roosevelt left a major legacy with\nhis court appointments that fundamentally\nreshaped constitutional law and whose judges\nnumerically dominated the lower federal\ncourts for close to a decade after his presi-\ndency. Ronald Reagan has already begun the\nThe Federal Judiciary Almanac.4\ngroundwork for his judicial legacy. With just\nThe findings and analyses presented here\ntwo terms in office as compared to Roosevelt's\nconcern all lifetime federal district and courts\nthree plus, Reagan will accomplish what\nof appeals judges confirmed by the U.S. Sen-\nonly Roosevelt and Eisenhower accomplished\nate of the 97th and 98th Congresses. The\nduring the last half century-naming a major-\ncourts of appeals judges analyzed were only\nity of the lower federal judiciary in active\nthose appointed to the 11 numbered circuits\nservice.¹ This makes it all the more signifi-\nand the Court of Appeals for the District of\ncant to inquire what has been the Reagan first\nColumbia. Appointments to the Court of\nterm record in the realm of judicial selection.\nWhat changes have occurred in the selection\nAn earlier version of this analysis was presented in a\npublic lecture at Wake Forest University. The author\nprocess? What is the professional, demograph-\nwould like to thank his hosts for their generous hos-\nic, and attribute profile of the Reagan appoin-\npitality.\ntees and how do they compare with appoin-\n1. The Administrative Office of U.S. Courts has cal-\nculated that Roosevelt appointed 81.4 per cent of the\ntees of previous administrations? Has the\njudiciary, Truman 46.5 per cent, Eisenhower 56.1 per\nAdministration been successful in placing on\ncent, Kennedy 32.8 per cent, Johnson 37.9 per cent,\nthe bench those in harmony with Administra-\nNixon 45.7 per cent, Ford 13.1 per cent, and Carter 40.2\nper cent. During his first term, Reagan appointed 24.3\ntion philosophy? What can we expect in the\nper cent of the judiciary. The Administrative Office esti-\nsecond term? These are the questions that this\nmates that by the end of the second term Reagan will have\narticle confronts.\nappointed a majority of the judiciary. At the start of the\nsecond term there were 99 vacancies to be filled. In addi-\nThe data on the backgrounds and selection\ntion there were 52 judges eligible to retire. Furthermore,\nof the judges come from a variety of sources\nsome 81 judges will become eligible to retire during the\nincluding personal interviews, examination\ncourse of the second term. Although all those eligible to\nretire do not do so, a large proportion can be expected to\nof the questionnaires that all judicial nomi-\nassume senior status. Unexpected vacancies caused by\nnees complete for the Senate Judiciary Com-\ndeath or resignation will undoubtedly occur and this too\nmittee,2 various biographical directories, state\nwill add to the numbers and proportion of judges\nappointed. Administrative Office figures are cited in\nlegislative handbooks, newspapers from the\nCiolli, Reagan Set for Judicial Record, NEWSDAY, Decem-\nappointees' home states, published and un-\nber 9, 1984, at 6.\npublished confirmation hearings by the Sen-\n2. The author would like to thank Mark H. Giten-\nstein, Chip Reid, Christine Phillips, and other staff of the\nate Judiciary Committee, the yearly Congres-\nminority office, Senate Judiciary Committee, for their\nsional Quarterly Almanac, and two recently\ncooperation and assistance.\navailable sources: the second edition of Judges\n3. (Washington, D.C.: Government Printing Office,\n1983).\nof the United States3 and the inaugural vol-\n4. Dornette and Cross, FEDERAL JUDICIARY ALMANAC\nume of what promises to be an annual series,\n1984 (New York: Wiley, 1984).\n314 Judicature Volume 68, Numbers 9-10 April-May, 1985\nAppeals for the Federal Circuit, a court of\nships to the President's Committee on Federal\nspecialized as opposed to general jurisdic-\nJudicial Selection.\ntion, were not included. The findings for the\nThe major substantive innovation in the\nReagan first term appointments⁵ are com-\nselection process made by the Reagan Admin-\npared to those for the Johnson, Nixon, Ford,\nistration is the creation of the President's\nand Carter lifetime appointments to courts of\nCommittee on Federal Judicial Selection.\ngeneral jurisdiction. During his first term\nThis nine-member committee institutional-\nReagan named 129 to the district courts and\nizes and formalizes an active White House\n31 to the appeals courts.\nrole in judicial selection. Members of the\nCommittee from the White House during the\nSelection under Reagan\nfirst term included presidential counselor\nA striking characteristic of the judicial selec-\nEdwin Meese III, White House chief of staff\ntion process in the Reagan Administration\nJames A. Baker III, John S. Herrington,\nhas been the formalization of the process by\nassistant to the President for personnel, M.B.\ninstitutionalizing interaction patterns and\nOglesby, assistant-to the President for legisla-\njob tasks that in previous administrations\ntive affairs, and presidential counsel Fred\nwere more informal and fluid. There have\nFielding, who serves as chair of the Commit-\nalso been changes of more substantive import.\ntee. From the Justice Department are the\nThe center of judicial selection activity in\nAttorney General, Deputy Attorney General,\nprevious administrations was the Deputy At-\nAssociate Attorney General, and the Assistant\ntorney General's Office, with an assistant to\nAttorney General for Legal Policy.\nthe deputy responsible for the details, and at\nThe highest levels of the White House staff\ntimes negotiations, associated with the selec-\nhave played a continuing active role in the\ntion process.⁶ During the Reagan Administra-\nselection of judges. Legislative, patronage,\ntion these responsibilities have shifted to the\npolitical, and policy considerations are con-\nOffice of Legal Policy. The Assistant Attor-\nsidered to an extent never before so system-\nney General heading that office reports to the\natically taken into account. This has assured\nDeputy Attorney General but also has an inde-\npolicy coordination between the White\npendent role as a member of the President's\nHouse and the Justice Department, as well as\nFederal Judicial Selection Committee. Assist-\nWhite House staff supervision of judicial\ning the head of the Legal Policy division in\nappointments.\nmatters concerning judicial selection is the\nThe Committee does not merely react to the\nSpecial Counsel for Judicial Selection, a post\nJustice Department's recommendations; it is\nformally established in September of 1984.\nalso a source of names of potential candida-\nThe Attorney General, Deputy Attorney Gen-\ncies and a vehicle for the exchange of impor-\neral, the Assistant Attorney General for Legal\ntant and relevant information. Furthermore,\nPolicy, the Special Counsel for Judicial Selec-\nthe president's personnel office conducts an\ntion, and some of their assistants meet to\ninvestigation of prospective nominees inde-\nmake specific recommendations for judge-\npendent of the Justice Department's investi-\ngation.⁷ It is perhaps not an overstatement to\n5. Technically, Reagan's first term ended on January\n20, 1985 after the 99th Congress already had been in\nobserve that the formal mechanism of the\nsession for several weeks. Therefore all nominations con-\nCommittee has resulted in the most consis-\nfirmed by the Senate up until then should be considered\ntent ideological or policy-orientation screen-\nfirst term appointments. However, by January 20 no\nnominations had even been sent to the Senate of the 99th\ning of judicial candidates since the first term\nCongress. thus the analysis is confined to those con-\nof Franklin Roosevelt.\nfirmed during the 97th and 98th Congresses.\nIt is also relevant to observe that this selec-\n6. See, for example, the discussion and citations in\nGoldman and Jahnige, THE FEDERAL COURTS AS A POLIT-\ntion process innovation potentially contains\nICAL SYSTEM, 3rd ed., 39-51 (New York: Harper & Row,\nan inherent source of tension as the perspec-\n1985).\ntive from the Justice Department can be quite\n7. Interview with Jane Swift, Special Counsel for\nJudicial Selection, Office of Legal Policy, Department of\ndifferent from that of the White House. The\nJustice, December 18, 1984.\ncooptation of judicial selection by the Rea-\n315\ngan White House has now been completed\nministrations which pledged not to nominate\nwith former presidential counsel Edwin Meese\nany person rated \"Not Qualified\" by the ABA\nIII now serving as Attorney General.\nStanding Committee,⁹ this Administration\nAlthough the consequences of this shift is\nhas made no such pledge and is willing, if not\nimmediately apparent in terms of the screen-\npersuaded by the Committee, to nominate the\ning of candidates, in the hands of a less ideo-\nperson of its choice even were the nominee\nlogically oriented administration partisan pa-\nrated \"Not Qualified.\"\ntronage considerations could conceivably\nThis is not to suggest that relations were\nbecome the principal selection criterion. Pro-\ncool with the ABA Committee. Senate Judi-\nfessional credentials would then be mini-\nciary Committee hearings on the nomination\nmized, resulting in a lower quality federal\nof J. Harvie Wilkinson to the Fourth Circuit\nbench. This is not meant to fault the Reagan\nrevealed a close working relationship, but\nAdministration for its innovations in the\nthat relationship occurred after the Adminis-\nselection process. Indeed, from the stand-\ntration had decided on Wilkinson, not be-\npoint of achieving Administration goals,\nfore. 11 Of course, the Administration has been\nthose innovations are rational and functional.\nconcerned that its nominees receive high ABA\nBut there may be unintended consequences\nratings, but evidently it has not been willing\nfrom these changes that should be watched by\nto give the ABA Standing Committee an\nthose who are concerned with the administra-\nopportunity to influence the selection during\ntion of justice.\nthe more fluid pre-nomination stage.\nAnother change in the process worthy of\nOne further observation about the selection\nnote is that the Reagan Administration is the\nprocess is in order. The Reagan Administra-\nfirst Republican Administration in 30 years\ntion repudiated the selection commission\nin which the American Bar Association Stand-\nconcept and in so doing abandoned the most\ning Committee on Federal Judiciary was not\npotentially effective mechanism for expand-\nactively utilized and consulted in the pre-\ning the net of possible judicial candidates to\nnomination stage. From the Eisenhower Ad-\ninclude women and racial minorities, group-\nministration through the Ford Administra-\nings historically excluded from the judiciary.\ntion, Justice Department officials sounded\nThe Carter Administration's record in this\nout the ABA Standing Committee for tenta-\nregard was unprecedented, with Carter nam-\ntive preliminary ratings of the leading candi-\ning to the courts of appeals 11 women, nine\ndates for a specific judgeship. These informal\nblack Americans (including one black wom-\nreports could be used by Justice officials in\nan), two Hispanics, and the first person of\nnegotiations with senators and other officials\nAsian ancestry (out of a total of 56 appoint-\nof the president's party. At times they influ-\nments). The-Reagan record with regard to the\nenced the Justice officials' final selection.\nappeals courts, as will be discussed shortly,\nDuring the Carter Administration, however,\nfalls markedly short of that.\nthis close working relationship ended as the\nAdministration established its own judicial\nselection commission for appeals court ap-\n8. Id.\npointments and most Democratic senators\n9. But note on his last day in office President Richard\nestablished analogous commissions for dis-\nM. Nixon broke that pledge. For details see Goldman and\ntrict court positions.\nJahnige, supra n. 6, at 44-45.\n10. In fact this happened with the nomination of Sher-\nThe Reagan Administration abolished the\nman E. Unger to the U.S. Court of Appeals for the Fed.\nselection commission but has, with few excep-\neral Circuit. Unger was rated Not Qualified. However, he\ntions, maintained a more formal relationship\ndied during Senate consideration of his nomination.\n11. In particular, see the hearings of the special session:\nwith the ABA Standing Committee and has\nof the Senate Judiciary Committee held on August 7.\nnot sought preliminary ratings on anyone\n1984, HEARINGS BEFORE THE COMMITTEE ON THE JUDI-\nbut the individual the Administration has al-\nCIARY, UNITED STATES SENATE. NINETY-EIGHTH CON\nGRESS, SECOND SESSION, PART 3 SERIAL No. J-98-6, 272\nready settled on to nominate.⁸ This has also\n274, 280, 283 ff. (Washington, D.C.: U.S. Governmen\nmeant that unlike previous Republican Ad-\nPrinting Office, 1985).\n316 Judicature Volume 68, Numbers 9-10 April-May, 1985\nDistrict court appointments\ntrum practicing in firms with four or fewer\nThe findings for selected backgrounds and\nmembers or associates. This is roughly com-\nattributes of the 129 Reagan first term ap-\nparable to the distribution of the Carter\npointments to the federal district courts are\nappointees. Since the Johnson Administra-\npresented in Table 1. Also presented in the\ntion, proportionately fewer of those in a small\nTable are comparable findings for the Carter,\npractice have been chosen. Close to one out of\nFord, Nixon, and Johnson Administrations'\nfour Johnson appointees, but only about one\nappointees.\nin seven Carter and one in ten Reagan first\nOccupation: If we look at the occupation at\nterm appointees came from a small practice.\ntime of appointment we find that about 40\nPerhaps this is a reflection of the changing\nper cent were members of the judiciary on the\nnature of the practice of law. 13\nstate bench or, in several instances, U.S. mag-\nExperience: Over 70 per cent of the first\nistrates or bankruptcy judges. Only the Carter\nterm Reagan district court appointments had\nAdministration of the past five administra-\neither judicial or prosecutorial experience, a\ntions had a higher proportion of those who\nproportion comparable to the appointees of\nwere serving as judges at the time they were\nthe Carter Administration, and the second\nchosen for the federal district bench. About\nhighest of all five administrations' appoin-\neight per cent of the Reagan district court\ntees. Of special interest and importance is that\nappointees were in politics or governmental\nthe proportion of those with judicial expe-\npositions but few of these were U.S. Attor-\nrience exceeded the proportion of those with\nneys; this also had been true for the Carter\nprosecutorial experience-a trend begun only\nappointees but not for the appointees of pre-\nin the Carter Administration. Before Carter,\nvious administrations. It would appear, for\nprosecutorial experience was more frequent.\nwhatever the reason, 12 that the U.S. Attorney\nWhy the shift toward a greater emphasis on\nposition is not the direct stepping-stone to a\njudicial experience? The reasons may be two-\nfederal judgeship it once was, although both\nfold. First, to the extent that judicial selection\nfederal and state prosecutorial experience was\ncommissions are involved in judicial selec-\nprominent in the backgrounds of the judges.\ntion, and as many as 18 Republican senators\nAlso of note is that few law school professors\nin 14 states have employed them during Rea-\nwere appointed, in contrast to the Reagan\ngan's first term, 14 judicial experience will be\nrecord for the courts of appeals. The Carter,\nseen as a desirable and relevant credential.\nNixon, and Johnson Administrations ap-\nCommissions have been concerned with the\npointed proportionately more law school\nprofessional quality of prospective nominees,\nprofessors than did Reagan in his first term.\nand those with judicial experience have a pro-\nPrivate law practice was the occupation at\nfessional track record that can be evaluated.\ntime of appointment for close to half the Rea-\nSecond, such track records can also be scrutin-\ngan appointees. The range of the size of firm\nized by Justice Department officials to deter-\nvaried considerably, with close to 12 per cent\nmine if the candidate shares the Administra-\naffiliated with large firms (with 25 or more\ntion's judicial philosophy and ideological\npartners and/or associates) and a slightly\noutlook. 15 The result of this recent emphasis\nlower proportion at the other end of the spec-\non judicial experience may be the growing\nprofessionalization of the American judiciary.\n12. See the discussion of possible reasons in Goldman,\nReagan's judicial appointments at mid-term: shaping\nEducation: The educational background of\nthe bench in his own image. 66 JUDICATURE 334, at 337\na majority of Reagan appointments to the\n(1983).\ndistrict courts, as shown in Table 1, was pri-\n13. Cf. Goldman and Jahnige, supra n. 6, at 56. In\ngeneral. see, THE 1984 LAWYER STATISTICAL REPORT: A\nvate school including the highly prestigious\nPROFILE OF THE LEGAL PROFESSION IN THE UNITED STATES\nIvy League schools. Only about one-third of\n(Chicago: American Bar Foundation, in press).\nReagan appointees attended a public univer-\n14. Fowler. A Comparison of Initial Recommendation\nProcedures: Judicial Selection Under Reagan and Carter,\nsity for undergraduate work, whereas over 57\n1 YALE L. & POL'Y REV. 299, 310-20, 347-49 (1983).\nper cent of the Carter appointees attended\n15. Interview with Jane Swift, supra n. 7.\npublic colleges-perhaps a reflection of\n317\npoorer socioeconomic roots of a substantial\nindicator. 16 The findings for the Reagan ap-\nsegment of the Carter judges. Again, with law\npointees are consistent with earlier findings¹⁷\nschool education, the majority of the Reagan\nand compatible with findings from other stu-\nappointees attended private law schools while\ndies suggesting that the socioeconomic dif-\na bare majority of the Carter appointees\nferences between the Republican and Demo-\nattended public-supported law schools.\ncratic electorates are mirrored to some degree\nAlthough there are some problems with\nin the appointments of Republican and Dem-\nequating being able to attend a private under-\ngraduate college with socioeconomic status,\n16. See the discussion in Goldman, supra n. 12, at 339.\nthe argument can be made that it is a rough\n17. Id.\nTable 1 How the Reagan first term appointees to the district courts compare\nto the appointees of Carter, Ford, Nixon, and Johnson\nReagan\n(first term)\nCarter\nFord\nNixon\nJohnson\n%\n%\n%\n%\n%\nN\nN\nN\nN\nN\nOccupation:\nPolitics/government\n7.8%\n4.4%\n21.2%\n10.6%\n21.3%\n10\n9\n11\n19\n26\nJudiciary\n40.3%\n44.6%\n34.6%\n28.5%\n31.1%\n52\n90\n18\n51\n38\nLarge law firm\n100+ partners/associates\n3.1%\n2.0%\n1.9%\n0.6%\n0.8%\n4\n4\n1\n1\n1\n50-99\n3.1%\n6.0%\n3.9%\n0.6%\n1.6%\n4\n12\n2\n,\n2\n25-49\n5.4%\n6.0%\n3.9%\n10.1%\nI\n7\n12\n2\n18\nI\nModerate size firm\n10-24 partners/associates\n12.4%\n9.4%\n7.7%\n8.9%\n12.3%\n16\n19\n4\n16\n15\n5-9\n13.2%\n10.4%\n17.3%\n19.0%\n6.6%\n17\n21\n9\n34\n8\nSmall firm\n2-4 partners/associates\n8.5%\n11.4%\n7.7%\n14.5%\n11.5%\n11\n23\n4\n26\n14\nSolo practitioner\n2.3%\n2.5%\n1.9%\n4.5%\n11.5%\n3\n5\n1\n8\n14\nProfessor of law\n2.3%\n3.0%\n-\n2.8%\n3.3%\n3\n6\n-\n5\n4\nOther\n1.6%\n0.5%\n- 1\n-\n-\n2\n1\n-\n-\nI\nExperience:\nJudicial\n50.4%\n54.5%\n42.3%\n35.2%\n34.4%\n65\n110\n22\n63\n42\nProsecutorial\n43.4%\n38.6%\n50.0%\n41.9%\n45.9%\n56\n78\n26\n75\n56\nNeither one\n28.7%\n28.2%\n30.8%\n36.3%\n33.6%\n37\n57\n16\n65\n41\nUndergraduate education:\nPublic-supported\n34.1%\n57.4%\n48.1%\n41.3%\n38.5%\n44\n116\n25\n74\n47\nPrivate (not Ivy)\n49.6%\n32.7%\n34.6%\n38.5%\n31.1%\n64\n66\n18\n69\n38\nIvy League\n16.3%\n9.9%\n17.3%\n19.6%\n16 4%\n21\n20\n9\n35\n20\nNone indicated\nI\nI\nI\n0.6%\n13.9%\n-\n-\nI\n1\n17\nLaw school education:\nPublic-supported\n44.2%\n50.5%\n44.2%\n41.9%\n40.2%\n57\n102\n23\n75\n49\nPrivate (not Ivy)\n47.3%\n32.2%\n38.5%\n36.9%\n36.9%\n61\n65\n20\n66\n45\nIvy League\n8.5%\n17.3%\n17.3%\n21.2%\n21.3%\n11\n35\n9\n38\n26\n318 Judicature Volume 68, Numbers 9-10 April-May, 1985\nocratic Administrations. 18 This has particu-\nA word about the professional education of\nlar persuasiveness in light of the net worth\nthe appointees is in order. A study of the Rea-\nfindings presented in Table 2. In sum, we can\ngan appointees at mid-term tentatively con-\nobserve that with relatively few exceptions,\ncluded that as a group the Reagan appointees\nthere is a tendency for the typical Republican\nmight have had a marginally less distin-\nappointee to be of a higher socioeconomic\nguished legal education than the appointees\nstatus than the typical Democratic appointee.\nof the four previous presidents. 19 This was\nbased on the relatively small proportion of\n18. See Goldman and Jahnige, supra n. 6, at 52-57.\nappointees with an Ivy League law school\n19. Goldman, supra n. 12, at 340.\neducation, the smallest proportion over the\nReagen\n(first term)\nCarter\nFord\nNixon\nJohnson\n%\n%\n%\n%\n%\nN\nN\nN\nN\nN\nGender:\nMale\n90.7%\n85.6%\n98.1%\n99.4%\n98.4%\n117\n173\n51\n178\n120\nFemale\n9.3%\n14.4%\n1.9%\n0.6%\n1.6%\n12\n29\n1\n1\n2\nEthnicity or race:\nWhite\n93.0%\n78.7%\n88.5%\n95.5%\n93.4%\n120\n159\n46\n171\n114\nBlack\n0.8%\n13.9%\n5.8%\n3.4%\n4.1%\n1\n28\n3\n6\n5\nHispanic\n5.4%\n6.9%\n1.9%\n1.1%\n2.5%\n7\n14\n1\n2\n3\nAsian\n0.8%\n0.5%\n3.9%\n-\n-\n1\n1\n2\n-\n-\nA.B.A. retings:\nExceptionally well qualified\n6.9%\n4.0%\n-\n5.0%\n7.4%\n9\n8\n-\n9\nWell qualified\n9\n43.4%\n47.0%\n46.1%\n40.2%\n40.9%\n56\n95\n24\n72\nQualified\n50\n49.6%\n47.5%\n53.8%\n54.8%\n49.2%\n64\n96\n28\n98\nNot qualified\n60\n-\n1.5%\n-\n-\n2.5%\n-\n3\n-\n-\n3\nParty:\nDemocratic\n3.1%\n92.6%\n21.2%\n7.3%\n94.3%\n4\n187\n11\n13\nRepublican\n115\n96.9%\n4.9%\n78.8%\n92.7%\n5.7%\n125\n10\n41\n166\nIndependent\n7\n-\n2.5%\n-\n-\n-\n-\n5\n-\n-\n-\nPast party activism:\n61.2%\n60.9%\n50.0%\n48.6%\n49.2%\n79\n123\n26\n87\n60\nReligious origin or affiliation:\nProtestant\n61.2%\n60.4%\n73.1%\n73.2%\n58.2%\n79\n122\n38\nCatholic\n131\n71\n31.8%\n27.7%\n17.3%\n18.4%\n31.1%\n41\n56\n9\nJewish\n33\n38\n6.9%\n11.9%\n9.6%\n8.4%\n10.7%\n9\n24\n5\n15\n13\nTotal number of appointees\n129\n202\n52\n179\n122\nAverage age at appointment\n49.6\n49.7\n49.2\n49.1\n51.4\n319\npast five administrations. The proportion\nthe whole, was marginally less distinguished\nhas remained constant for the entire first term\nthan the appointees of previous presidents.\nappointments. However, the same caveat\nAffirmative action: The record of the Rea-\nnoted earlier must be repeated here-that is,\ngan first term district court appointments is a\nthat a number of Reagan appointees as well\nmixed one with regard to gender and race/\nas appointees of other presidents attended dis-\nethnicity. The Reagan Administration was,\ntinguished non-Ivy League schools includ-\nof course, responsible for the historic appoint-\ning Michigan, Virginia, Berkeley, Stanford,\nment of the first woman to the Supreme\nand N.Y.U. Interestingly, a study conducted\nCourt. At the district court level, the record, as\nby Fowler found that a smaller proportion of\nindicated by Table 1, shows that the Reagan\nthe Reagan appointees than the Carter ap-\nAdministration's appointment of women was\npointees attended \"prestige\" law schools,20\nsecond only to the Carter Administration.\nwhich supports the earlier conclusion that\nthe Reagan appointees' legal education, on\n20. Fowler, supra n. 14, at 350.\nThe appointees' political and legal credentials\nAmong the Reagan appointees to the lower\nin the campaigns of Tennessee Republi-\ncourts confirmed by the Senate of the 98th\ncans Senator Howard Baker and Governor\nCongress are the following persons with\nLamar Alexander, and served as a Tennes-\npolitical and legal credentials worthy of\nsee circuit court judge for the 15th Judicial\nspecial note.¹\nCircuit.\nSarah Evans Barker was active in Re-\nElizabeth V. Hallanan had been a\npublican politics in Indiana and also\nmember of the West Virginia House of\nplayed an important role in Illinois Repub-\nDelegates, was co-chair in 1976 of the West\nlican Senator Charles Percy's reelection\nVirginia Committee to Elect Gerald Ford,\ncampaign in 1972. She served as assistant\nserved as Chair of the Public Service Com-\nU.S. Attorney for the southern district of\nmission of West Virginia, and had expe-\nIndiana and eventually became the U.S.\nrience as a juvenile court judge.\nAttorney.\nStanley S. Harris was a former law\nRobert R. Beezer was once active in\npartner of Republican Senator John\nSeattle Republican politics. He had expe-\nWarner and served on the local District of\nrience as a municipal court judge as well as\nColumbia courts before being appointed\na special prosecuting attorney. He was a\nU.S. Attorney for the District of Columbia.\nmember of a major Seattle law firm at the\nHe was rated Exceptionally Well Qualified\ntime of his appointment to the U.S. Court\nby the ABA for the federal district court\nof Appeals for the Ninth Circuit.\nposition on the District of Columbia\nFranklin S. Billings, Jr., once a lead-\nbench.\ning Vermont legislator serving as secretary\nRobert M. Hill had been active in Re-\nof the Vermont Senate and later as Speaker\nof the House, was Chief Justice of the Ver-\nmont Supreme Court when chosen for the\n1. See Goldman, Reagan's judicial appointments\nfederal district bench.\nat mid-term: shaping the bench in his own image, 66\nJUDICATURE 334, at 341 (1983) for examples of those\nPeter C. Dorsey was a candidate for\nwith impressive political and legal credentials con-\nstate attorney general in his native Con-\nfirmed by the Senate of the 97th Congress. It should be\nunderstood that the listing is not exhaustive and that\nnecticut, and had served as U.S. Attorney.\nthere are those not mentioned who also had note-\nJulia Smith Gibbons had been active\nworthy legal credentials.\n320 Judicature Volume 68, Numbers 9-10 April-May, 1985\nOver nine per cent of the appointments went\nAttorney General and Jane Swift as Special\nto women, and this suggests that the Admin-\nCounsel for Judicial Selection in the Office of\nistration, as well as some Republican sena-\nLegal Policy. It is likely that women in key\ntors, made an effort to recruit well qualified\nJustice Department positions will be sensi-\nwomen. While it is true that the large major-\ntive to sexual discrimination in the judicial\nity of all appointees of all five administra-\nselection process.\ntions have been male, the Reagan Adminis-\nThe record as to black appointments, how-\ntration must be given credit for continuing\never, is markedly different. The Reagan first\nthe push for sexual equality in the recruit-\nterm record is not only the worst of all five\nment of federal district judges. It is also sig-\nadministrations, as suggested by Table 1, it is\nnificant to note that by the end of the first\nthe worst since the Eisenhower Administra-\nterm two women held important Justice\ntion in which no blacks were appointed to\nDepartment positions that are concerned with\nlife-time district court positions. Justice De-\njudicial selection: Carole Dinkins as Deputy\npartment officials are aware of this poor\npublican politics before being appointed\nof a major New York City law firm.\nby President Richard M. Nixon to the fed-\nH. Ted Milburn was active in the\neral district bench in 1970. President Rea-\nHoward Baker and Nixon-Agnew cam-\ngan elevated him in 1984 to the Court of\npaigns and was serving as a Tennessee cir-\nAppeals for the Fifth Circuit.\ncuit court judge for the 6th Judicial Circuit\nRicardo H. Hinojosa was a county Re-\nwhen recruited for the federal district bench\npublican Party chairman, was south Texas\nin 1983. In October of 1984 he was elevated\nco-chairman of the Reagan-Bush cam-\nto the U.S. Court of Appeals for the Sixth\npaign in 1980, was active in other Republi-\nCircuit.\ncan campaigns, and was an associate in a\nEdward C. Prado was active in his\nmajor McAllen, Texas, law firm at the time\nhome county Republican Party, served as\nhe was picked for the federal district bench.\nan assistant district attorney, had expe-\nThomas Gray Hull was a Tennessee\nrience as a state district judge, and was U.S.\nstate legislator, served as a Tennessee cir-\nAttorney for the Western District of Texas\ncuit court judge for the 20th Judicial Cir-\nwhen picked for the federal district court\ncuit, and was legal counsel to Governor\nbench.\nLamar Alexander.\nIlana Diamond Rovner was active in\nMarvin Katz was a former law partner\nRepublican campaigns in Illinois includ-\nof Republican Senator Arlen Specter and\ning service as Vice Chair of the Illinois\nwas a member of a prestigious Philadel-\nFinance Committee for Reagan-Bush. She\nphia law firm at the time of his appoint-\nserved as an Assistant U.S. Attorney for\nment to the federal district court.\nfour years and was Legal Counsel to Gov-\nCharles A. Legge was vice chair of the\nernor James Thompson when chosen for\nSan Francisco Lawyers Committee for\nthe federal district court bench.\nReagan-Bush and was a partner in a major\nAnthony J. Scirica was a member of\nSan Francisco law firm at the time of his\nthe Pennsylvania General Assembly, had\nappointment.\nserved as an assistant district attorney, and\nPeter K. Leisure had been active in\nwas a state judge at the time he was picked\nRepublican campaigns, had service as an\nfor the federal district court bench.\nassistant U.S. Attorney, and was a member\n-Sheldon Goldman\n321\nrecord and have said they would like it to\nTable 2\nNet worth of Reagan appointees compared\nto the net worth of the Carter appointees\nimprove, but feel that it is extraordinarily\ndifficult to find well qualified blacks who\nReagan\nCarter\n(first term)\n(96th Congress)\nshare the President's philosophy and are also\nDistrict\nAppeals\nDistrict\nAppeals\nwilling to serve. 21 Critics respond that the\n%\n%\nF\nF\nAdministration has not made the recruitment\nN\nN\nN\nN\nUnder $100,000\n6.2%\n3.3%\n12.8%\n5.1%\nof blacks a high priority in part because the\nB\n1\n19\n2\nblack electorate votes overwhelmingly Demo-\n100,000-150.000\n8.5%\n3.3%\n14.9%\n12.8%\n11\n1\n22\n5\ncratic, and there is little political payoff in the\n150,000-199,999\n3.9%\n3.3%\n8.1%\n15.4%\nappointment of blacks. In contrast, the pro-\n5\n1\n12\n6\n0-199,999 total\n18.6%\n10.0%\n35.8%\n33.3%\nportion of Hispanics was second only to that\n24\n3\n53\n13\nof the Carter Administration. Some observers\n200,000-399.000\n25.6%\n23.3%\n29.7%\n28.2%\nlink that fact to the Republican Party effort to\n33\n7\n44\n11\nWOO Hispanic voters in the 1984 election.\n400,000-499,000\n11.6%\n13.3%\n11.5%\n10.3%\n15\n4\n17\n4\nABA ratings and other factors: When we\n500,000-999,999\n21.7%\n30.0%\n18.9%\n17.9%\nexamine the ratings of the ABA Standing\n28\n9\n28\n7\n200,000-999,999 total\n58.9%\n66.7%\n60.1%\n56 4%\nCommittee on Federal Judiciary we find that\n76\n20\n89\n22\nabout seven per cent of the Reagan first term\n1 to 2 million\n17.0%\n20.0%\n2.0%\n7.7%\nappointees to the district courts received the\n22\n6\n3\n3\nhighest rating, that of Exceptionally Well\nover 2 million\n5.4%\n3.3%\n2.0%\n2.6%\n7\n1\n3\n,\nQualified. This is the best record since the\n1+ million total\n22.5%\n23.3%\n4.0%\n10.3%\nJohnson Administration. The next highest\n29\n7\n6\n4\nrating, that of Well Qualified, was received by\nTotal %\n100.0%\n100.0%\n99.9%\n100.0%\nabout 43 per cent, which means that half the\nTotal number of\nappointees\n129\n30'\n148²\n39³\nReagan appointees were in the top two cate-\ngories. The Carter appointees received pro-\n1. Net worth unavailable for one appointment. Source for all other\nportionately more Well Qualified ratings than\nReagan appointees was the questionnaires submitted to the Senate\nJudiciary Committee and reviewed by the author.\ndid the Reagan appointees but fewer Excep-\n2. Professor Elliot Siotnick generously provided the net worth figures\nfor all but six appointees for whom he had no data.\ntionally Well Qualified ratings. However,\n3. There were five additional judges appointed by Carter for whom no\ninformation was listed in the source consulted. Legal Times of Washing-\nwhen the top two ratings are combined, 51\nton, October 27. 1980. at 25.\nper cent of the Carter appointees fell into\npolitical activities. Instead, it must be recog-\nthose categories-about the same as the Rea-\nnized that a history of party activity is helpful\ngan appointees. If the ABA ratings are taken\nto a judicial candidacy only when other fac-\nas a rough measure of \"quality,\" the Reagan\ntors are present such as distinguished legal\nappointments may be seen as equaling the\ncredentials, and, particularly as far as the\nCarter appointees in quality and marginally\nReagan Administration is concerned, a judi-\nsurpassing the appointments of Ford, Nixon,\ncial philosophy in harmony with that of the\nand Johnson.\nAdministration. Suffice it to note that many\nIn terms of party affiliation of district court\nof the Reagan appointees to both the district\nappointees, approximately 97 per cent of the\nand appeals courts had impressive legal cre-\nReagan appointees were Republican, the\ndentials as well as a background of partisan\nhighest partisanship level of all five adminis-\nactivism (see \"The appointees' political and\ntrations and the highest proportion of a presi-\nlegal credentials,\" page 320). Also observe\ndent choosing members of his own party\nthat about four out of ten Reagan appointees\nsince Woodrow Wilson.²² The figures for pre-\ndid not have a record of prominent partisan\nvious prominent party activism suggest that\n21. Interview with Jane Swift, supra n. 7.\nthe Reagan appointees had the highest pro-\n22. See Evans, Political Influences in the Selection of\nportion of all five administrations. However,\nFederal Judges, WIS. L. REV. 330-51 (1948) reprinted in\nthere is no suggestion that the Reagan appoin-\nScigliano, ed., THE COURTS 65-69 (Boston: Little Brown,\n1962). Also see, Burns, Peltason, and Cronin, GOVERN-\ntees with a record of party activism received\nMENT BY THE PEOPLE, 9th ed., 406 (Englewood Cliffs.\ntheir appointments solely because of their\nNew Jersey: Prentice-Hall, 1975).\n322 Judicature Volume 68, Numbers 9-10 April-May, 1985\nactivism, although they of course had to\nappointees,23 that there is somewhat of a class\nreceive sufficient political backing or clear-\ndifference between the Republican and Demo-\nance in order to have been nominated.\ncratic appointees on the whole that is analo-\nThe religious origins or religious affilia-\ngous to the socioeconomic differences among\ntion of the Reagan first term district court\nthe electorates of the two parties. However,\nappointees differed markedly from the ap-\nthe findings also suggest that the Reagan and\npointees of previous Republican administra-\nCarter appointees were for the most part\ntions; Reagan appointed more Catholics and\ndrawn from the middle to upper classes.\nfewer Protestants-proportions similar to\nthose of Democratic administrations. In fact,\nAppeals court appointments\nas Table 1 shows, the Republican Reagan\nTraditionally, senators of the president's party\nAdministration appointed proportionately\nhave had considerably less influence in the\nmore Catholics than did the Democratic Car-\nselection of appeals court as distinct from\nter and Johnson Administrations. In the past,\ndistrict court judges. This has meant that\nRepublican administrations appointed more\nadministrations have had more of an oppor-\nProtestants and fewer Catholics and Jews\ntunity to pursue their policy agendas (such as\nthan did Democratic administrations; this\nthey may have them) by way of recruiting\ncould be attributed to the fact that the reli-\nappeals judges who are thought to be philo-\ngious composition or mix of the parties was\nsophically sympathetic with such agendas.\ndifferent and thus, to a large extent, so was the\nWe can so view the 31 first term Reagan\npool of potential judicial candidates from\nappointments to the courts of appeals with\nboth parties. The finding for the Reagan ap-\ngeneral jurisdiction as compared to the 56\npointees does not mean that the Administra-\nCarter, 12 Ford, 45 Nixon and 40 Johnson\ntion gave greater preference to Catholics be-\nappointees. Because there are fewer appeals\ncause of their religion than did previous\njudges than district judge appointments, dif-\nRepublican administrations, but rather that\nferences in percentages, as reported in Table\nmore Catholics have entered the potential\n3, must be treated with caution.\npool from which Republican judicial nomi-\nOccupation and experience: A striking find-\nnees emerge thus increasing their proportion\ning of Table 3 is that three out of five Reagan\nof appointees. This is consistent with the rel-\nappeals court appointees and over half the\natively heavy Catholic vote for Reagan in\nFord, Nixon, and Johnson appointees were\n1980 and especially 1984.\nalready serving in the judiciary at the time of\nThe average age of the Reagan appointees\ntheir appointment to the courts of appeals. Of\nwas about that of the Carter appointees and\nthe 19 Reagan appointees who were judges at\nsimilar to that of the appointees of the pre-\nthe time of appointment, 16 were serving as\nvious three presidents.\nfederal district judges and the remaining\nThe net worth of the Reagan appointees as\nthree on the state bench. Just as with the\ncompared to the Carter appointees is pre-\nselection of federal district judges, Justice\nsented in Table 2. There are differences in\nDepartment officials felt more secure evaluat-\ndegree at both ends of the financial spectrum.\ning the candidacies of those with judicial\nThere were proportionately more million-\ntrack records. The Reagan Administration\naires among the Reagan district court appoin-\nwas particularly concerned not only with the\ntees, over five times as many as the Carter\nprofessional quality of prospective nominees,\nappointees, and proportionately fewer Rea-\nbut also with their judicial philosophy. As\ngan appointees at the lower end of the eco-\npresidential counsel Fred F. Fielding noted,\nnomic spectrum. This suggests, along the\n\"We have an opportunity to restore a philo-\nlines reported in the 1983 study of Reagan\nsophical balance that you don't have across\nthe board right now.\"24\n23. Goldman, supra n. 12, at 345-46.\nThe promotion of a lower court judge to a\n24. Brownstein, With or Without Supreme Court\nChanges. Reagan will Reshape the Federal Bench. 16\nhigher court can also be seen as furthering the\nNATIONAL JOURNAL 2238 at 2340 (December 8. 1984).\nconcept of a professional judiciary, although\n323\nit does not appear that pure merit was the\non the federal district bench.\ngoverning factor with the Reagan first term\nAnother striking finding of Table 3 is the\nelevations. 25 The same undoubtedly holds\nproportion of Reagan appeals court appoin-\ntrue for the appointments of other adminis-\ntees who were law school professors at the\ntrations. Politically, the elevation of a federal\ntime of appointment. Because Robert Bork\ndistrict judge enables an administration to\n25. If the ABA ratings are taken as overall indicators of\nmake two appointments: the elevation that\nquality, only 4 of the 19 judicial promotions were rated\nExceptionally Well Qualified, 12 received the Well Qual-\nfills the appeals court position; and the\nified designations, and 3 were given the lowest rating of\nappointment to fill the vacancy thus created\nQualified.\nTable 3 How the Reagan first term appointees to the courts of appeals compare\nto the appointees of Carter, Ford, Nixon, and Johnson\nReagen\n(first term)\nCarter\nFord\nNixon\nJohnson\n%\n%\n%\n%\n%\nN\nN\nN\nN\nN\nOccupation:\nPolitics/government\n3.2%\n-%\n8.3%\n4.4%\n10.0%\n,\n-\n1\n2\n4\nJudiciary\n61.3%\n46.4%\n75.0%\n53.3%\n57.5%\n19\n26\n9\n24\n23\nLarge law firm\n1.8%\n-\n100+ partners/associates\n-\n-\n-\n1\n-\n-\n-\n-\n50-99\n3.2%\n5.4%\n8.3%\n2.2%\n2.5%\n1\n3\n1\n1\n1\n25-49\n6.4%\n3.6%\n-\n2.2%\n2.5%\n2\n2\n1\n1\n-\nModerate size firm\n10-24 partners/associates\n3.2%\n14.3%\n-\n11.1%\n7.5%\n1\n8\n5\n3\n-\n5-9\n6.4%\n1.8%\n8.3%\n11.1%\n10.0%\n2\n1\n1\n5\n4\nSmall firm\n2-4 partners/associates\n-\n3.6%\n-\n6.7%\n2.5%\n-\n2\n-\n3\n1\nSolo practitioner\n-\n1.8%\n-\n-\n5.0%\n-\n1\n-\n-\n2\nProfessor of law\n16.1%\n14.3%\n-\n2.2%\n2.5%\n5\n8\n-\n1\n1\nOther\n-\n1.8%\n-\n6.7%\n-\n-\n1\n-\n3\n-\nExperience:\nJudicial\n70.9%\n53.6%\n75.0%\n57.8%\n65.0%\n22\n30\n9\n26\n26\nProsecutorial\n19.3%\n32.1%\n25.0%\n46.7%\n47.5%\n6\n18\n3\n21\n19\nNeither one\n25.8%\n37.5%\n25.0%\n17.8%\n20.0%\nB\n21\n3\nB\n8\nUndergraduate education:\nPublic-supported\n29.0%\n30 4%\n50.0%\n40.0%\n32.5%\n9\n17\n6\n18\n13\nPrivate (not Ivy)\n45.2%\n50.0%\n41.7%\n35.6%\n40.0%\n14\n28\n5\n16\n16\nIvy League\n25.8%\n19.6%\nB.3%\n20.0%\n17.5%\n8\n11\n,\n9\n7\nNone indicated\n-\nI\n-\n4.4%\n10.0%\n-\n-\n2\n4\n-\nLaw school education:\nPublic-supported\n35.5%\n39.3%\n50.0%\n37.8%\n40.0%\n11\n22\n6\n17\n16\nPrivate (not Ivy)\n484%\n19.6%\n25.0%\n26.7%\n32.5%\n15\n11\n3\n12\n13\nIvy League\n16.1%\n41.1%\n25.0%\n35.6%\n27.5%\n5\n23\n3\n16\n11\n324 Judicature Volume 68, Numbers 9-10 April-May, 1985\nhad left his professorship at Yale Law School\nsors, were all known as conservative thinkers\nsome six months before and at the time of\nand advocates of judicial restraint with a ten-\nselection was a senior partner in the Washing-\ndency toward deference to government in mat-\nton, D.C. firm of Kirkland & Ellis, he was not\nters of alleged civil liberties or civil rights\ncounted in the professor of law category. Were\nviolations. These appointees also had a track\nhe counted, the proportion of professors of\nrecord of published works so that their candi-\nlaw would be about one out of five Reagan\ndacies could be evaluated as to their compati-\nappeals court appointees, a modern record.\nbility with the Administration's vision of the\nBork, as well as the five other law profes-\nrole of the courts. Further, the appointment of\nReagan\n(first term)\nCarter\nFord\nNixon\nJohnson\n%\n%\n%\n%\n%\nN\nN\nN\nN\nN\nGender:\nMale\n96.8%\n80.4%\n100.0%\n100.0%\n97.5%\n30\n45\n12\n45\n39\nFemale\n3.2%\n19.6%\n-\n-\n2.5%\n1\n11\n-\n-\n1\nEthnicity or race:\nWhite\n93.5%\n78.6%\n100.0%\n97.8%\n95.0%\n29\n44\n12\n44\n38\nBlack\n3.2%\n16.1%\n-\n--\n5.0%\n1\n9\n-\n-\n2\nHispanic\n3.2%\n3.6%\n-\n-\nI\n1\n2\n-\nI\n-\nAsian\n-\n1.8%\n-\n2.2%\n1\n-\n1\n-\n1\nI\nA.B.A. ratings:\nExceptionally well qualified\n22.6%\n16.1%\n16.7%\n15.6%\n27.5%\n7\n9\n2\n7\n11\nWell qualified\n41.9%\n58.9%\n41.7%\n57.8%\n47.5%\n13\n33\n5\n26\n19\nQualified\n35.5%\n25.0%\n33.3%\n26.7%\n20.0%\n11\n14\n4\n12\n8\nNot qualified\n-\n-\n8.3%\n-\n2.5%\n-\n-\n1\n-\n1\nNo report requested\n-\n-\n-\n-\n2.5%\n-\n-\n-\n-\n1\nParty:\nDemocratic\n-\n82.1%\n8.3%\n6.7%\n95.0%\n-\n46\n1\n1\n38\nRepublican\n100.0%\n7.1%\n91.7%\n93.3%\n5.0%\n31\n4\n11\n42\n2\nIndependent\n-\n10.7%\n-\n-\nI\n-\n6\n-\n-\nI\nPast party activism:\n58.1%\n73.2%\n58.3%\n60.0%\n57.5%\n18\n41\n7\n27\n23\nReligious origin or attiliation:\nProtestant\n67.7%\n60.7%\n58.3%\n75.6%\n60.0%\n21\n34\n7\n34\n24\nCatholic\n22.6%\n23.2%\n33.3%\n15.6%\n25.0%\n7\n13\n4\n7\n10\nJewish\n9.7%\n16.1%\n8.3%\n8.9%\n15.0%\n3\n9\n1\n4\n6\nTotal number of appointees\n31\n56\n12\n45\n40\nAverage age at appointment\n51.5\n51.9\n52.1\n53.8\n52.2\n325\nschool education was the lowest of all five\nadministrations. Although some of the ap-\npointees attended prestigious non-Ivy League\nlaw schools both public and private, it may be\nthat the quality of legal education of the Rea-\nOnly one appeals\ngan appeals court appointees, like that of the\ndistrict court appointees, was on the whole\ncourt nominee was\nsomewhat lower than the Carter appointees, a\nfemale, one was black,\nfinding also reported by Fowler.2\nIn terms of appointments of women and\nand one, Hispanic.\nminorities, the first term Reagan record for\nthe appeals courts can be seen as a dramatic\nretreat from the Carter record. Of 31 appeals\ncourt appointees only one was a woman, only\none was black, and only one was Hispanic.\nWhether the participation of Carole Dinkins\n(until her departure from the Justice Depart-\nacademics was expected to provide intellec-\nment in March 1985) and Jane Swift in the\ntual leadership on the circuits and a potential\nselection process will result in the active con-\npool of candidates for vacancies that might\nsideration and recruitment of women to the\noccur on the Supreme Court. It will be of more\nappeals courts will be something to watch for\nthan academic interest to see whether the sec-\nduring the second term. It may be that the\nond term appointments will draw as heavily\nmale dominated selection process is such that\nfrom the law schools as did those from the first\nthere is greater willingness to recruit women\nterm. Over the last 20 years (and excluding the\nfor the district bench than for the more\nsmall number of Ford appointees), the Rea-\nimportant and prestigious appeals courts.\ngan Administration drew the least from the\nThe Administration may also want their\nranks of those in private practice.\nwomen appointees to the district courts to\nIn terms of experience, about three out of\nprove themselves on the bench before being\nfour Reagan appointees had judicial or prose-\nactively considered for promotion.\ncutorial experience in their backgrounds, with\nABA ratings and other factors: The propor-\njudicial experience being the most prominent.\ntion of Reagan appointees with the highest\nIndeed, over three times as many appeals court\nABA rating, that of Exceptionally Well Quali-\nappointees had judicial experience as had\nfied, was the highest since the Johnson Ad-\nprosecutorial experience, and the proportion\nministration. However, the Reagan appoin-\nwith prosecutorial experience was the lowest\ntees also had the highest proportion of all five\nof the five administrations. This also supports\nadministrations of those with the lowest Qual-\nthe suggestion that Justice officials were more\nified rating. Interestingly, all five who were\nconcerned with judicial track records in eval-\nprofessors of law at the time of their nomina-\nuating ideological compatibility than with\ntions were only rated Qualified despite their\nprosecutorial track records.\ndistinguished legal scholarly achievements.\nEducation and affirmative action: The ma-\nThis suggests that the ABA ratings are biased\njority of the Reagan appointees as well as the\nagainst legal academics who are not active\nCarter, Nixon, and Johnson appointees at-\npractitioners. Had Robert Bork remained on\ntended private schools for both their under-\nthe Yale Law School faculty rather than join-\ngraduate and law school training. About one\ning Kirkland & Ellis, it is a matter of conjec-\nout of four Reagan appointees had an Ivy\nture whether he would have received the\nLeague undergraduate education, the highest\nExceptionally Well Qualified rating he in fact\nproportion of the appointees of the five\nreceived as a senior partner of that prestigious\nadministrations. However, the proportion of\nReagan appointees with an Ivy League law\n26. Fowler. supra n. 14, at 352.\n326 Judicature Volume 68, Numbers 9-10 April-May, 1985\nDistrict of Columbia firm.\ncourts, as well as the district courts, under-\nNone of the Reagan first term appointees to\nscore the importance of Chief Justice Warren\nthe appeals courts were Democrats. The ab-\nBurger's urgent request that Congress dramati-\nsence of any appointees affiliated with the\ncally increase the pay of the federal judiciary.²\nopposition political party last occurred in the\nThe Chief Justice observed that since he\nAdministration of Warren Harding.² As for\nbecame Chief Justice 30 of the 43 resignations\nprominent past partisan activism, however,\nfrom the federal bench were due in part to\nthe proportion is lower than that for the Car-\nfinancial reasons. 29 Although there are differ-\nter appointees and comparable to that of the\nences in degree between the Carter and Rea-\nFord, Nixon, and Johnson appointees (see\ngan appointees' wealth that may mirror to\n\"The appointees' political and legal creden-\nsome extent different constituencies of the\ntials,\" page 320).\nparties, there is a very real danger that the\nAs for religious origin or affiliation, the\nfederal courts will soon become the preserve of\nReagan appeals court appointments were\nthe wealthy for only they will be able to afford\nsomewhat similar to his district court ap-\nthe assumption of judicial office. If it is consi-\npointments with the proportion of Catholics\ndered desirable that monetary considerations\nakin to that of the previous Democratic\nnot affect judicial recruitment, then judicial\nAdministrations of Carter and Johnson.\nsalaries will have to be increased significantly.\nGiven the importance of the appeals courts\nand the desire of the Reagan Administration to\nIdeological success?\nplace on the bench those with a judicial philo-\nWe have thus far seen how the Reagan Admin-\nsophy compatible with that of the Administra-\nistration has to some extent reshaped the\ntion, one might expect that there would be an\njudicial selection process, and we have exam-\nactive effort to recruit younger people who\nined the demographic and attribute profiles\ncould be expected to remain on the bench long-\nof the Reagan district and appeals court\ner. There is a hint that this may have occurred.\nappointees as compared to those of four pre-\nThe average age of the Reagan appointees was\nvious presidents. The questions remain, have\n51.5, the lowest for all five administrations.\nthe Reagan appointees met the expectations\nThe net worth of the Reagan appointees\nof the Administration? Have the Reagan\ncompared to the Carter appointees is found in\nappointees begun to shift the ideological bal-\nTable 2 and the differences between both\nance on the lower courts?\ngroups of appointees are similar to those for\nThe answers to these questions must await\nthe district court appointees. Over one in five\nsystematic empirical analysis; there is frag-\nReagan appointees were millionaires as\nmentary evidence that has begun to emerge,\ncompared to one in ten Carter appointees.\nhowever, that suggests that the Reagan Ad-\nTwo-thirds had a net worth between $200,000\nministration on the whole is satisfied. For\nand under $1 million, compared to 56 per cent\nexample, a study by the Center for Judicial\nof the Carter appointees. At the lowest end of\nStudies of every decision published by every\nthe net worth continuum, one in ten Reagan\nReagan appointee serving during the first\nappointees had a net worth of under $200,000,\ntwo years of Reagan's first term concluded\ncompared to one in three of the Carter\nthat the overwhelming majority of appoin-\nappointees.\ntees demonstrated judicial restraint along the\nThe net worth findings for the appeals\nlines favored by the Administration.\nStudents in a seminar at the University of\n27. See, LEGISLATIVE HISTORY OF THE UNITED STATES\nCIRCUIT COURTS OF APPEALS AND THE JUDGES WHO SERVED\nMassachusetts-Amherst conducted a class pro-\nDURING THE PERIOD 1801 THROUGH MAY 1972 U.S.\nject in which published decisions of selected\nSenate. Committee on the Judiciary, 92nd Cong., 2nd\nappeals courts and Reagan appointees were\nSess. 2 (1972).\n28. See, Lauter, Burger Lists 1985 Desires: More Pay,\nanalyzed. Although these analyses were ex-\nAnother Justice, NATIONAL LAW JOURNAL, January 14,\nploratory and their findings must be inter-\n1985. at 5.\npreted with caution, here, too, it would\n29. Id.\n30. Brownstein, supra n. 24, at 2341.\nappear that, with few exceptions, the Reagan\n327\ntorious for being treated as merely campaign\nrhetoric, the 1984 Republican Party platform\ncan be seen as containing a good summary of\nFuture appointees\nthe Reaganizing philosophy for the judiciary\nthat also points the way for the second term.\nwill most likely\nThe platform reads in part:\nbe white, male\nJudicial power must be exercised with deference\ntowards state and local officials\nIt\nis\nnot\na\njudi-\nand Republican.\ncial function to reorder the economic, political,\nand social priorities of our nation\nWe com-\nmend the President for appointing federal judges\ncommitted to the rights of law-abiding citizens\nand traditional family values In his second\nterm, President Reagan will continue to appoint\nappointees have joined the more conservative\nSupreme Court and other federal judges who share\nwings of their courts particularly on issues of\nour commitment to judicial restraint.35\nalleged violations of civil liberties. Another\nfinding that emerged was that the differences\nFuture appointments\nthat occurred between the Reagan appointees\nAlthough the above quote from the 1984\nand the Carter (and other Democratic) appoin-\nRepublican Party platform does suggest the\ntees were differences of degree and that it was\nideological or philosophical outlook of the\nrare for there to be the sort of dramatic cleav-\npeople the Administration will be seeking for\nages on the appeals courts as is found on the\njudgeships during the second term, we can\nSupreme Court. Nevertheless, the Reagan ap-\nalso offer some projections as to the likely\npointees appear to be making their imprint.\nmakeup of the demographic and attribute\nOther accounts of the Reagan appointees\nprofiles of second term appointees. Central to\non the courts have also focused on the appeals\nthis undertaking is the realization that just as\ncourts. In one, Jonathan Rose, the former\nthere was no indication at the start of the\nAssistant Attorney General for Legal Policy\nsecond term that there would be sharp altera-\nduring the first three years of Reagan's first\ntions in other areas of public policy, so with\nterm, was quoted as being \"tremendously\nthe judiciary there is no reason to anticipate a\npleased\" with the records of the law profes-\nshift in the course already set during the first\nsors chosen by the Administration for the\nterm. What this means is that second term\nappeals courts.32 An extensive analysis of\nappointees will continue to be predominantly\nRobert Bork's record\" and more anecdotal\n31. The seminar was held in the Fall of 1984. The\naccounts of other appointees also provide\nstudents involved were: Karen Ahlers, Julia L. Anderson,\nadditional evidence on this point.\nLeslie A. Brown, Nicole M. Caron, Michael J. Deltergo,\nAt the Supreme Court level there is reason\nKathleen M. Moore, Matthew F. Moran, Paul M. She-\npard, Barry J. Siegel, Valerie Singleton, David A. Smailes,\nfor the Administration to be pleased with its\nand Paul W. Throne. Cases were generally classified\nappointee Justice Sandra Day O'Connor.\nusing the methods described in Goldman, Voting Behav-\nO'Connor was either the second or third most\nior on the United States Courts of Appeals Revisited, 69\nAM. POL. Sci. REV. 491 (1975). The circuits examined\nconservative justice in matters of civil liber-\nwere the Second, Third, Fourth, Fifth, Sixth, Seventh,\nties, rejecting the civil liberties claim in 71 per\nand the District of Columbia. Separate studies of Reagan\ncent of the cases decided with full opinion in\nappointees Robert Bork, Lawrence Pierce, Richard\nPosner, Antonin Scalia, and Ralph Winter were also\nthe 1981 term, and in the 1982 and 1983 terms\nconducted.\nrejecting 75 per cent of such civil liberties\n32. LEGAL TIMES OF WASHINGTON, October 22, 1984. at\narguments. Her opinions, whether for the ma-\n15.\n33. Id. at 1, 10-15.\njority, concurrences, or dissents on a variety of\n34. See, for example, NEW YORK TIMES. August 23,\nissues ranging from abortion to criminal\n1984, at B-8 and BOSTON GLOBE, July 29, 1984. at A-28.\nprocedures were surely, with few exceptions, a\n35. See the text of the 1984 Republican Party platform\nand in particular the quoted material in 42 CONGRES-\nsource of satisfaction to the Administration.\nSIONAL QUARTERLY WEEKLY REPORT 2110 (August 25,\nAlthough political party platforms are no-\n1984).\n328 Judicature Volume 68, Numbers 9-10 April-May, 1985\nwhite male Republicans, many of whom are\nanother historic appointment and at the same\nat the upper end of the socioeconomic spec-\ntime have an associate justiceship to fill. But\ntrum. Women will likely continue to receive\neven if the President makes no Supreme\nappointments at a level comparable to that\nCourt appointments, the Reagan Adminis-\nfor the first term, which will place the Reagan\ntration will have left an indelible mark on the\nAdministration second only to the Carter\njudiciary and the course of American law\nAdministration in terms of appointments to\nwith its lower court appointments.\nwomen. As for black Americans, there is no\nOurs is a historic political era that in the\nreason to believe that there will be a marked\npendulum of American politics has come\nchange from the poor record of the first term\nevery 30 to 40 years. The era of New Deal\nduring the second term.\nDemocratic political domination of Ameri-\nJudicial experience should continue to be\ncan politics ended with the election of 1968.\nimportant for the Administration and used to\nIn all likelihood, were it not for Watergate,\nassess the track record of prospective appoin-\nthe new conservative Republican era would\ntees. For the courts of appeals, law school\nthen have been firmly established. It took\nprofessors will likely continue to hold some\nRonald Reagan and his Administration to\nattraction for the Administration, both be-\nseize the historic opportunity to reshape\ncause of the relative ease of identifying a judi-\nAmerican politics. Barring economic or mil-\ncial philosophy from published writings and\nitary catastrophies, the cycle of conservative\nthe desire to place conservative intellectual\nRepublican domination may well last until\nleaders on these important collegial courts.\nthe turn of the century. The Reagan Adminis-\nIt will be of interest to see whether the Ad-\ntration correctly sees the courts as having the\nministration broadens its recruitment efforts,\npower to further or hinder Administration\nparticularly at the appeals court level, to find\ngoals; thus judicial appointments are of ma-\nDemocrats who share the Administration's\njor importance for this Administration in its\noutlook or whether the extreme partisanship\nattempt to reshape public policy. How suc-\ndiscussed previously will prevail during the\ncessful the Administration will ultimately be\nsecond term.\nmust await more extensive analysis of the\nOf major interest during the second term\njudicial decisionmaking of the first and sec-\nwill be the filling of any Supreme Court vacan-\nond term appointments.\ncies that occur. There is frequent speculation\nThe Roosevelt Administration was success-\nalong these lines in the media. 36 How a Su-\nful in its struggle with the federal judiciary\npreme Court vacancy is filled will signal the\nand the federal courts abandoned or modified\nseriousness of the Administration's ideological\ninterpretations of the Constitution that, in the\ngoals. If the Administration turns to a conserva-\nname of economic liberty, had prevented gov-\ntive personal friend of the President's not\nernment from acting in certain areas of eco-\nknown for intellectual brilliance instead of one\nnomic and social welfare policy. The crucial\nof the conservative intellectual leaders on the\nquestion now is will the Reagan Administra-\nappeals courts, it may be interpreted as a fail-\ntion be successful in its struggle with the fed-\nure to fully utilize the power of appointment to\neral judiciary to have the federal courts aban-\nmost effectively reshape judicial policy.\ndon or modify interpretations of the Constitu-\nThere has also been speculation about the\ntion that, in the name of civil liberty, place\nChief Justiceship. If the Chief Justiceship\nrestraints on government when acting in cer-\nbecomes vacant, it is possible that Justice\ntain areas concerning protection from crimi-\n'Connor would be elevated to that position,\nnals, public morality, and social policy? It is\nthus enabling the Administration to make\nno surprise that students of the courts will be\nintently watching judicial appointments by a\n36. See, for example, Stark, Will Court Bear Reagan\nsecond term Reagan Administration.\nBrand? BOSTON GLOBE, July 29. 1984, at A-25, A-28.\n37. The argument that follows draws in part from the\nanalysis presented in Goldman and Jahnige, supra n. 6,\nSHELDON GOLDMAN is a professor of political sci-\nat 229-33.\nence at the University of Massachusetts, Amherst.\n329\nThe federal judiciary:\nwhat role politics?\nAt the mid-year meeting of the American\nchat with you.\" Would you let him stay?\nJudicature Society on February 16 in Detroit,\nRobert McKay: Of course.\nFred W. Friendly led a panel of 15 lawyers,\nFriendly: Then you go into the Lincoln\njudges, journalists, public officials and oth-\nbedroom and sit before the fireplace and he\ners in an examination of the federal judicial\ntells you that he is thinking of retiring. You\nselection process. The discussion was in two\nsay all the appropriate things and he says\nparts: the filling of a vacancy on the Supreme\n\"but I haven't quite decided to do it yet.\" I\nCourt and several vacancies at the appellate\nhaven't told you by the way that he's black-\nand district court level.\nhe's the third black member of the Supreme\nHere is an edited transcript of the panel's\nCourt of the United States, and he says, \"I will\ndialogue on the selection of a new Supreme\nretire on my next birthday, which is in five\nCourt justice. Although space did not permit\nweeks. But, Mr. President, I would like a\npublication of the full transcript, every effort\npromise from you that you will appoint a\nhas been made to avoid distorting the partici-\ndistinguished black jurist to take my place on\npant's views.\nthe Supreme Court of the United States. This\nFred W. Friendly: Let's make it the year\nconversation is just between you and me. Do\n1989. The most aged member of the court is 88\nwe have a deal?\"\nyears old. His name is Oliver Brandeis Vision.\nMcKay: The answer is I could make no\nJudge Vision is everything that a Supreme\nsuch deal. I would certainly take it into con-\nCourt Justice should be. He's a great patriot.\nsideration, but measuring the qualifications\nHe combines all the values of all the people.\nof the individual you have in mind against all\nOne day Judge Vision is at a reception at\nothers, I would have to think about that.\nthe White House and as he's about to leave, he\nFriendly: I have no individual in mind. I\nsays to the President of the United States, Mr.\njust want a promise from you that there will\nMcKay, \"Mr. President, could Bessie and I\nbe a black seat. There's been one since the days\nstay for a few minutes afterward, we'd like to\nof Lyndon Johnson who appointed Thur-\n330 Judicature Volume 68, Numbers 9-10 April-May, 1985\nretires.\nFriendly: You write the President. What\ndoes he do? Is he the first one to see it?\nBenjamin Civiletti: It depends. Of course\nthe letter is the formal act but sometimes I\nunderstand messages have been sent or car-\nried in such a scenario as you proposed to\nalert the President or Attorney General that\nthere is a potential or an expectation of\nretirement within a certain period of time.\nThe first thing I think the President does, if\nthere has been no preadvice, is to call the\nFred W.\nAttorney General and probably the White\nFriendly\nHouse counsel and have a meeting about the\nprocess of selecting an alternative.\ngood Marshall. I want a promise from you\nFriendly: You've got a letter delivered by\nthat there will be a black member of the\nhand, and it's sent to the President of the\nSupreme Court.\nUnited States and it says, \"As of the first of\nMcKay: I would be very sensitive to the\nJanuary I wish to announce my retirement. I\nneed to have black representation on the\nhope you will remember our conversation\nCourt.\nabout appointing a black to the Court; it's\nFriendly: Are you saying the answer is yes?\nvery important that we have this representa-\nMcKay: No sir. Not a guarantee.\ntion in our day and age.\" You call in your\nAttorney General and your Deputy Attorney\nFriendly: How does a judge retire? Does he\nGeneral?\nwrite the President? Does he write to Mr. Civi-\nMcKay: I would think so.\nletti? Does he write to Mr. Schmults? What's\nFriendly: What do you say to them?\nthe process?\nMcKay: I say, \"We now have, as you per-\nCharles W. Joiner: My understanding is he\nhaps are already aware, a potential vacancy\nwrites a letter to the President saying that he\non the Court. This is one of the most impor-\ntant appointments that a President can make\nand so I want you to make an immediate\nThe participants on the panel\ninvestigation of all those who have been\nModerator: Fred W. Friendly, Edward R. Murrow Pro-\nrecommended.\"\nfessor Emeritus, Columbia University Graduate\nSchool of Journalism. Participants: William J. Bauer,\nFriendly: Well nobody has recommended\nJudge. U.S. Court of Appeals for the Seventh Circuit;\nanybody, have they, because there's no va-\nBenjamin R. Civiletti, Former U.S. Attorney General;\nCharles Halpern, Dean, CUNY-Queens School of\ncancy? Do people go along all the time mak-\nLaw; Charles W. Joiner, Judge, U.S. District Court for\ning recommendations in limbo?\nthe Eastern District of Michigan; Elaine R. Jones,\nMcKay: They do indeed.\nNAACP Legal Defense Fund; Wade H. McCree, Jr.,\nFriendly: Really?\nUniversity of Michigan Law School and former judge.\nU.S. Court of Appeals for the Sixth Circuit; Robert B.\nMcKay: There is always a list of candidates\nMcKay, President, Association of the Bar of the City of\nfor the Supreme Court of the United States.\nNew York, and former dean, N.Y.U. School of Law;\nRobert D. Raven, Former Chairman, ABA Standing\nFriendly: All right. So how does this con-\nCommittee on the Federal Judiciary; Jonathan E.\nversation conclude? \"Go get me the best\nRose, Former Assistant Attorney General, Office of\nperson?\"\nLegal Policy. U.S. Department of Justice: Maurice\nRosenberg, Columbia University Law School: Edward\nMcKay: Not necessarily the best person, but\nC. Schmults, Former U.S. Deputy Attorney General;\nget the recommendations that come from\nElliot E. Siotnick, Professor of Political Science, Ohio\nresponsible sources from around the country\nState University; Augustine T. Smythe, Esquire, South\nCarolina; Joseph Tybor, Chicago Tribune: Stephen\nand look at them and begin screening them\nWermell, Wall Street Journal.\nthrough the American Bar Association. When\nyou have a narrower list, come back to me.\n331\nFriendly: What do you mean the American\nFriendly: How should it be started?\nBar Association? They have a big prior res-\nRosenberg: I think that in this conversa-\ntraint on this?\ntion the President is having with the Attorney\nMcKay: The ABA helps in the screening by\nGeneral and others they would talk about\nmaking an investigation throughout the\nsome other things besides who.\ncountry.\nFriendly: Like what?\nFriendly: This early? Mr. Raven you're an\nRosenberg: What sort of person do we\nexpert on this. Is that the way it works?\nwant?\nRobert Raven: Well, the last time two\nFriendly: What kind of person do we want?\nnames were sent to the committee.\nRosenberg: What term is the President in-\nFriendly: By the American Bar Association?\nfirst or second?\nRaven: No, by the President through the\nFriendly: He's just begun. This is his first\nAttorney General.\nterm.\nFriendly: But does the Bar Association send\nRosenberg: He's just begun; in 1989 he's in\nin names.\nhis first term. The appointment of a person of\nRaven: No. The Standing Committee of\none gender or one racial background or\nthe ABA has never sponsored anyone. In fact,\nanother would reflect upon his political\nthe few times it's been asked to, it made it very\nchances.\nclear that that's not its function. It's not in the\nFriendly: Did you notice that the President\nselection process at all. It's merely in the eval-\ndid not mention anything about the conver-\nuation process for the Attorney General.\nsation with the Justice about appointing a\nFriendly: Professor Slotnick, would it ever\nblack? Did you think that was a purposeful\nbe proper for the head of the ABA to write a\nomission by President McKay?\npersonal letter to the President and say, \"In\nRosenberg: Well I think that the President\nconsidering candidates for this vacancy, why\nwas going directly to the who question and\ndon't you think of so and so.\"\nnot the what. I'd start with a question of what\nElliot Slotnick: I don't think it would be\nkind of person are we looking for.\nproper and I'm sure the ABA Committee\nI do think that the question of what the\nwould never try to do it because it would\nCourt looks like when the pictures of the nine\nreally alter their institutional role in the\njustices appear is a very important symbolic\nprocess.\nquestion.\nFriendly: So they're more of a screening\nFriendly: There's no black on the Court\ndevice to look at people after the event.\nonce Judge Vision retires. Is that important?\nSlotnick: Right.\nRosenberg: I think so.\nFriendly: Do you agree with that Dean\nFriendly: Why? One hundred and fifty\nHalpern?\nyears after Dred Scott we still have to have a\nCharles Halpern: It seems to me the Presi-\nblack seat?\ndent of the ABA-who is not part of the\nRosenberg: I don't say that we have to have\nscreening process-could quite appropriately\na black seat. What we have to do is think of the\nsend in suggestions to the President.\nimplications of having a very well qualified\nFriendly: Do you agree with that Professor\n-perhaps as well qualified as anybody else\nRosenberg?\nwho could be found-person who's black sit-\nMaurice Rosenberg: I guess he could. It's a\nting on the Court instead of someone else.\nfree country and the First Amendment ap-\nplies to him, but I think he'd be ill-advised to\nWade H. McCree, Jr.: May I interject at this\ndo it.\npoint. I think that we're moving too rapidly\nFriendly: Why would he be ill-advised?\nin the process. What the President should do\nRosenberg: It seems to me that there are so\nif the letter of resignation indicates a date of\nmany other sources of information and I'm\nresignation is go public with the letter. The\nnot sure that we have yet quite gotten the\nfact that he has written a letter indicating his\nprocess started the way it should be started.\nintention to take senior status or retired status\n332 Judicature Volume 68, Numbers 9-10 April-May, 1985\nJanuary 1st would lock the vacancy in. Some\nally consulted until after the appointment?\ngreat problems could result from a President\nSchmults: I would say that was right-the\ngetting a letter like this. I submit my retire-\nones I'm aware of. I think what is far more\nment effective upon the appointment and\nlikely is the Chief Justice would come and\nqualification of my successor. Now you're in\ntalk to you.\ntrouble because the Justice then can control\nJoiner: I don't think the Chief Justice\nthat process. If he doesn't like the name that\nshould go to the President unless he's asked. I\ncomes up, he can produce mischief.\nthink the President has the power and he\nFriendly: How does he do that?\nshould initiate all of the inquiries that he\nMcCree: Well he can indicate that he had an\nthinks are appropriate.\nunderstanding with the President and that\nRosenberg: It seems to me that some preli-\nthis was not in fulfillment of it. But if the\nminary decision might have been made by the\nletter said January 1st, I think he goes public\nPresident and his close advisors as to who\nwith that to lock in the retirement and then he\nthey want to take into consideration. If they\nproceeds into the nomination process.\nwant to take into consideration judges of the\nFriendly: All right. Thanks for the advice.\ncourts of appeals, for example, then they\nI'm going to pull the curtain on this little\nmight want to find out who knows them and\nepilogue just for a moment and I'm going to\nthe Chief Justice might be a likely source.\nmove along to the fact that the team of Civi-\nFriendly: Is there anything wrong with the\nletti, Schmults, Rose, Rosenberg have come\nChief Justice going over and saying, \"Mr.\nup with three names. They've talked to all the\nPresident, I have watched all these judges. We\npeople, all the bar associations. They've\ngo to these circuit meetings. I know them\nlooked at all the letters, they talked to the\nbetter than anybody in the country. I have\nChairman of the Judiciary Committee, Sena-\nthree names I want to give you and I'd like to\ntor Smythe did they talk to the Chief Jus-\nsee you tomorrow at a time convenient with\ntice by the way? Is that permissible, Mr.\nyou or any time in the next week or so.\"\nCiviletti?\nAnything wrong with that Mr. McKay?\nCiviletti: Permissible, but not necessarily\nMcKay: I think it's absolutely proper. If the\nadvisable.\nAmerican Bar Association and the Attorney\nFriendly: Why is it not advisable? Who\nGeneral and the Senate and everybody around\nwould know better?\nthe country is going to advise the President,\nCiviletti: Because he doesn't have a role in\nwhy not the Chief Justice. That's my view.\nthe appointment process ordinarily, and if\nElaine R. Jones: I would really disagree\nyou're inviting him in then he will take the\nwith the notion that as a matter of course the\nopportunity to exercise his judgment.\nChief Justice, or any other sitting justice on\nFriendly: He doesn't have First Amend-\nthe Supreme Court, should inform the Presi-\nment rights?\ndent as to his or her choices for that Court\nCiviletti: You'll have enough problems\nwithout having first been asked.\ndealing with the Chairman of the Senate\nFriendly: Why?\nJudiciary Committee, the majority leader of\nJones: I think when the Chief Justice and\nthe House, and other congressional leaders\njustices of the Supreme Court interject them-\nthat I don't think you will want to get the\nselves into the nomination process whether\nChief Justice involved in the selection process.\nit's at the court of appeals level, the district\nFriendly: You're not suggesting that in the\ncourt level, or the Supreme Court level, you\nlast eight or nine appointments to the Su-\nhave an institutional problem. The President\npreme Court Chief Justices haven't been con-\nknows well that the Chief Justice is the Chief\nsulted and listened 10?\nJustice, and knows the workings and opera-\nCiviletti: Yes, but that's after the selection\ntions of the Court, and if he wants that advice,\ngenerally.\nhe knows where to get it.\nFriendly: Is it true Attorney General\nFriendly: So it's up to the President.\nSchmults that the Chief Justice is not gener-\nJones: I think so.\n333\nFriendly: Allright: Interesting difference of\nhow you see the role of courts in our govern-\nopinion. Curtains down on that.\nmental system.\nWe've got three names agreed to by our\nFriendly: I see it as it is said in the Constitu-\ncommittee. Mr. President, here are three\ntion. We are a court of appeal, we've decided\nnames. The first is a male court of appeals\never since 1801 (Marbury v. Madison) that we\njudge from X circuit-been on the circuit for\nwill be the referee with the striped shirt, we\n12 years, written a lot of great opinions, all\nwill make these decisions. I believe in judicial\nthe right material and everything else-\nreview but I'm not an activist judge. I'm your\ncouldn't go wrong with him. We have a black\nkind of judge Mr. President, the kind you\nmale. He was a state trial judge in criminal\nspoke about when you accepted the nomina-\ncourts in a big metropolitan city like Chi-\ntion. Any other questions?\ncago, New York, St. Louis, Los Angeles, was\nSchmults: No. It sounds like we know what\nappointed to fill a vacancy to the Senate, and\nyour judicial philosophy is.\na year and a half later was elected. So he is a\nFriendly: What else do you want to know?\nSenator, former state judge, on the Judiciary\nAnything you want to know about any big\nCommittee-very well thought of, member of\ncases coming up?\nthe right political party, and has a judicial\nSchmults: No, I wouldn't want to know\nmind. He is black. He's a close friend of Judge\nabout any big cases.\nVision. Third is a woman-white. Was the\nFriendly: But you know in the platform\ndean of a law school in the sun belt and is now\nthey said, \"that on gun control and abortion\na member of the court of appeals.\nwe will appoint no one to the Supreme Court\nSo we have three people. White female,\nwho does not believe as our party believes.\"\nwhite male, black male. I want you to be my\nAren't you going to honor your party's com-\ncommittee. You're changing roles, now.\nmitment to that?\nYou're going to be my advisors. I'm the Presi-\nSchmults: No, I think what you do is\ndent. I may ask one or two of you to be Presi-\ndetermine whether the people on your list\ndent before we're through. Who do you vote\nhave the same view of the role of the courts in\nfor Ms. Jones?\nour system as the President and I do not think\nJones: Well the bottom line is that all of\nyou would ask them how they would decide\nthese people are qualified. And I assume the\nspecific cases. That would be demeaning to\ncourt consists of eight white males.\nthe candidates and to the President.\nFriendly: It's seven white males, Ms. O'Con-\nFriendly: Well why don't you try a candi-\nnor, and a vacancy.\ndate? Why don't you ask Judge Bauer how he\nJones: There's no black on the court and we\nfeels about abortion laws. That's what the\ndo have an interest in diversity of judgment.\nparty said. You ran on that platform. Don't\nMy vote is for the black.\nyou believe in it?\nSchmults: I'd like to know which candidate\nSchmults: I do believe in the platform-\nis closest to the President in political and\nthat's what I ran on. Presumably that's my\njudicial philosophy.\nplatform but I don't have to apply it specifi-\nFriendly: How are you gonna find that out?\ncally in this way by asking judicial candidates\nYou're going to invite these three people for a\nquestions how they would decide specific\nmeeting?\ncases. I think I should determine whether the\nSchmults: Actually, you would have done a\nperson I'm going to appoint has my general\nlot of other things before this. You would\noutlook about the role of the courts, judicial/\nhave read all the decisions.\npolitical philosophy, view of the nation; but\nFriendly: You've done all that and they're\nas to how you would decide a specific case, I\nall pretty much your kind of person. I'll be the\nreally think that would be inappropriate. I\nwhite male. There we are, we're having a\nwould not ask the candidate that. First of all\ndrink together at 5:00 in the afternoon. What\nthe facts and circumstances are changed at the\ndo you want to know?\ntime the case comes up.\nSchmults: I would like to discuss with you\nFriendly: You remember that Roe U. Wade\n334 Judicature Volume 68, Numbers 9-10 April-May, 1985\ncase back in 1972 or 73, if that were tried\nthem.\ntomorrow, same set of facts except we know a\nFriendly: Come on, answer the question\nlot more about medical science now and we\njudge.\ncan preserve a life from the second week on-\nBauer: I've just answered the question. I do\nwouldn't you ask Judge Bauer/Judge Joiner\nnot think that courts should seek out solu-\nhow they'd feel about that case if it were\ntions for problems that have not been brought\nargued tomorrow?\nto their attention, but I don't think they can\nSchmults: Well I think that is a good point.\navoid problems that are forced upon them.\nI think you might well ask them about a case\nFriendly: Do you have a better way to\nlike Roe U. Wade that perhaps, in the discus-\nanswer the question, Mr. Civiletti?\nsion of that case, would bring out the candi-\nCiviletti: I wouldn't be asking those ques-\ndates' view of the courts and the Court's role\ntions in the first place. I'd be looking for\nin applying the law.\nintellectual capacity first and exploring\nFriendly: Why don't you ask Judge Bauer?\nthat and making a very close analysis of the\nSchmults: I'd be interested in your analysis\nopinions. Beyond capacity, the ability to be\nof Roe U. Wade. Do you think that the way that\ncreative in the law-to understand and apply\ncase was decided, and the principles that were\nthe law.\nenunciated was consistent with your views as\nFriendly: But you're using all kinds of\nto what the courts ought to be doing in our\nfancy words to duck the issue.\nsystem of government?\nCiviletti: No, no, no. Third, I'd want to\nBauer: I'm not in the position at the\nlook for fairness among these three last can-\nmoment, Mr. President, to totally criticize the\ndidates. I think those three qualities make a\nopinion. On the other hand there have been a\ngreat Chief Justice or a great justice, and from\nlot of changes in facts, additional things that\nmy point of view as Attorney General, not as a\nmust be brought to the attention of the Court\nPresident who has said I'm not going to have\nor could be brought to the attention of the\nanybody on the Court who's going to decide\nCourt, and I'd certainly be willing to give it a\nthings contrary to my political philosophy.\nsecond look in view of new knowledge.\nYou can't control a justice anyway once\nSchmults: I'm really not asking you about\nthey're on the Court. There's been a lot of\nan abortion decision as such.\ndisappointments between what the President\nBauer: You're asking about Roe U. Wade?\nthought he was getting when he appointed a\nSchmults: Yes, I was asking about Roe U.\njustice and what he actually got.\nWade but I'm not really asking you about\nwhat you think about abortion. Really what\nFriendly: We're back to our three candi-\nI'm trying to get at is your view as to whether\ndates. Who are you going to be for Mr.\nthe courts ought to pay considerable defer-\nSlotnick?\nence to Congress and the legislatures or\nSlotnick: I think there was something you\nshould courts be looking for ways to reach out\nsaid in the hypothetical that made it even\nby deciding questions that are very controver-\nmore apparent that the black judge makes\nsial in our society.\nsense, and that was that he was on the Senate\nBauer: Mr. President, the courts are fre-\nJudiciary Committee and was in the majority.\nquently forced into deciding controversial\nHe would just sail through the Senate.\nquestions present in our society because of an\nFriendly: Is that a consideration?\nabsence of action by either the Congress or the\nSlotnick: Oh, I think it should be for a\nexecutive branch of government.\nPresident.\nSchmults: So it's your view that courts\nFriendly: You mean the President of the\nshould step into vacuums where the likely\nUnited States under Article II selects judges\naccountable branches don't act.\nand under Section III for life, and he is going\nBauer: Mr. President. you and I both know\nto do it on the basis of how quickly they're\nthat the Court never steps into a vacuum. The\ngoing to be confirmed.\nvacuum is brought to them and thrust upon\nSlotnick: Not on the basis of that, but\n335\nyou're saying they're all good.\nFriendly: If you push me to the limit, it's\nFriendly: But that's why you're going to do\nthe white male. He is the carbon copy of the\nit-because he's on that committee?\nPresident of the United States.\nSlotnick: I think having the black candi-\nMcKay: Then I think the President-and I\ndate when you have no black members of the\ndon't necessarily speak as myself-I think the\nCourt combined with the fact that this is an\nPresident would probably choose the white\nindividual who is on the Judiciary Commit-\nmale as the one who would be most reliable.\ntee in the majority means everything is com-\nFriendly: And you're going to not have a\ning up right for this particular person.\nblack on the Court for the first time since\nFriendly: He's the perfect candidate polit-\n1963?\nically.\nMcKay: The one who will most likely\nMcCree: I think I'd go with the black male.\nespouse the views that I think are appropriate\nI understand that he is a member of the Senate\nfor the courts is the one that I would choose.\nof the United States and he's on the Judiciary\nFriendly: But it's a political decision you're\nCommittee. As President I can only appoint\nmaking.\nsomeone by and with the advice and consent\nMcKay: Of course. It's a political situation.\nof the Senate. And here I have someone com-\nFriendly: You're willing to admit it. I've\ning from the Senate who's going to have an\nheard all the stuff about substance, point of\neasier path through it. Plus another point.\nview; you want somebody who agrees with\nAbner Mikva, who used to sit in the Congress\nyou on Roe v. Wade.\nand is now a judge of the Court of Appeals for\nMcKay: Very closely. Very closely. I don't\nthe District of Columbia, has written recently\nthink we should have a black seat, or a\nabout the absence of someone on the Court\nCatholic seat, or a Jewish seat, or a female\nwho has knowledge of the legislative process.\nseat. We might want more than one of each of\nMuch of the Court's business today, most of it,\nthose at various times.\nis interpreting statutes. It's not the Constitu-\nFriendly: We're going to get the Court up to\ntion, it's not the common law, it's congres-\n50 members.\nsional statutes.\nBauer: I think that the reason that the coun-\nFriendly: You want a legislator because\ntry follows what the Supreme Court says, and\nthat's what the Supreme Court does is legis-\nremember the Supreme Court has no militia,\nlate?\nno troops or anything like that, is because we\nMcCree: No, I didn't say that. What the\naccept the Supreme Court. If we don't ap-\nSupreme Court does is interpret statutes.\npoint that black male to replace the black\nFriendly: Which is another way of saying it\nmale, we're going to bring to a large segment\nlegislates.\nof the population an idea, true or false, that\nMcCree: If you prefer it. But I prefer to say\nthey have been disenfranchised somehow, and\nthat they interpret statutes. There hasn't been\ncheated, and I would not perpetrate that upon\nanyone since Hugo Black with any legislative\nthe American public. I would, therefore, vote\nexperience. If we talk about the Court as\nfor the black male. But I would tell him why I\nbeing representative of the country, here you\nwas doing it.\ngel a black male who is also a legislator.\nSchmults: One of the things I'd like to do is\nFriendly: Who are you going to put on the\nknow the context. How many more appoint-\nCourt, Dean McKay?\nments am I going to have?\nMcKay: Well if everything is truly equal, I\nFriendly: Who knows? How many did\nwould put the black male on, but you haven't\nPresident Carter have to the Supreme Court?\nadequately put in one of the factors that I\nZip! How many has President Reagan had?\nthink the President would take into account.\nOne. So one never knows, does one. Who are\nFriendly: What's that?\nyou going to vote for?\nMcKay: Which of the candidates most\nSchmults: I'm voting for the black male.\nclosely adheres to the views that the President\npersonally espouses for the Court.\nFriendly: Thank you all very much.\n336 Judicature Volume 68, Numbers 9-10 April-May, 1985\nTHE WHITE HOUSE\nWASHINGTON\nJune 24, 1985\nMEMORANDUM FOR DANIEL J. ENGLER\nSTAFF ASSISTANT\nOFFICE OF WHITE HOUSE CORRESPONDENCE\nFROM:\nJOHN G. ROBERTS 022\nASSOCIATE COUNSEL TO THE PRESIDENT\nSUBJECT:\nProposed Letters to Judge Fred Wicker\nand Judge Samuel Rosenstein\nCounsel's Office has reviewed the above-referenced proposed\nletters to judges, and finds no objection to them from a\nlegal perspective. Thank you for submitting them for our\nclearance.\nID #\nCU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nDUTGOING\n+\nINTERNAL\nINCOMING\nDate Correspondence\nReceived Y/MM/DD)\nName of Correspondent:\nDan Engler\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject:\nand Judge Samuel Rosenstein\nProfrosed letters to Judge Fred Weeker\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nWitolland\nORIGINATOR 85106118\n/\n/\nReferral Note:\nWAT18\nR 85,06,18\n585,06,19\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\nRecondelA\n/\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA - Appropriate Action\nI - Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC Comment/Recommendation\nR . Direct Reply w/Copy\nB - Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF - Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode\n=\n\"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nTHE WHITE HOUSE\nWASHINGTON\nJune 18, 1985\nMemo for: Dianna Holland\nFrom: Dan Engler\nOffice of Correspondence\nx7610, Rm. 96\nRe: Dated material for clearance\nby your office\nHere are copies of two Presidential\nreplies to judges, dated June 18,\nwhich we would like to send by COB\nJune 20.\nWe thought we could save your office\nthe trouble of composing a memo of\nreply if we could just mail the replies\nby COB Thursday unless your office\nhas any objections.\nThank you,\nDan\nDan Engler\nCOPY\nTHE WHITE HOUSE\nWASHINGTON\nJune 18, 1985\nDear Judge Wicker:\nThank you very much for your kind message. I am\nmost grateful for your generous words. They mean\na great deal to me, especially in view of your own\nwartime experience.\nIt seems to me we achieved something most unusual\nforty years ago. Back through history, wars were\nsettled in such a way they planted the seeds for\nthe next war. The hatreds and rivalries remained.\nNot this time. Here it is four decades later and\nour erstwhile enemies are our staunchest friends\nand allies.\nAgain, my thanks to you and very best wishes.\nSincerely,\nThe Honorable Fred Wicker\nCircuit Judge\nCircuit Court\nPontotoc, Mississippi 38863\n304758\nCOUNTIES:\nFRED WICKER\nCIRCUIT JUDGE\nALCORN\nPONTOTOC, MISSISSIPPI 38863\nITAWAMBA\nLEE\nMONROE\nPONTOTOC\nCIRCUIT COURT\nPRENTISS\nLAD\nTISHOMINGO\nFIRST DISTRICT OF MISSISSIPPI\nMay 17, 1985\nHonorable Ronald Reagan\nPresident of the United States\nThe White House\nWashington, D. C. 20515\nCOBY\nDear Mr. President:\nHaving made your visit to the cemetery at Bitburg Germany, you\nare probably interested in how the general public feels about the\nmatter.\nAs one who was barely 20 years old when I landed in Normandy and\nreturned to New York City on December 25, 1945, my personal feelings\nare that it was a very fine act on your part and one that needed to\nbe done. When a nation has been defeated, why should the victor not\nbe magnanimous? What reasonable product of Judeo-Christian Civilization\ncould possibly find fault with the placing of a wreath in a cemetery\nfilled with the war dead of the erstwhile foe. This would be part-\nicularly true as to West Germany, now our staunchest ally.\nI have not been out of Mississippi since the news media started\nthe furor but have been in several areas of this state. This brought\nme into contact with a fair cross section of the population and, frankly,\nthe subject was never mentioned until I brought it up out of curiosity\nabout the general attitude and reaction. Invariably the attitude of\nthe others present was the same as mine.\nYours was a noble gesture and when the voices of the small souled\ncritics have died away you will be vindicated in the minds of people\nof good will everywhere and hailed for it when the history of this\ntime is finally written.\nWhen the Senate and House of Representatives, frightened and\nexcited by the press, were requesting that you change your plans, I\nwas fearful that you would do SO. I realize now that I was doing you\na disservice in harboring such doubts. \"What went ye out into the\nwilderness for to see? A reed shaken in the wind?\" Matthew 11:7\nCongratulations for doing the right thing.\nSincerely,\nFredwicker\ncopy\nTHE WHITE HOUSE\nWASHINGTON\nJune 18, 1985\nDear Judge Rosenstein:\nPlease accept my heartfelt thanks for your message\nof May 7. I appreciate more than I can say your\nkind and generous words.\nMy purpose was never to suggest we forgive\nand forget, and I found that today's Germans do\nnot suggest such a thing. They have preserved\nthe camps with evidence of all the horror of the\nHolocaust, and they say along with us, \"Never\nagain.\"\nYou were kind to write as you did and your\nmessage means a great deal to me.\nSincerely,\nThe Honorable Samuel M. Rosenstein\nSenior Judge\nUnited States Court\nof International Trade\nSuite 403, Federal Building\n299 East Broward Boulevard\nFort Lauderdale, Florida 33301\n# 30 4295\nUNITED STATES COURT OF INTERNATIONAL TRADE\nFEDERAL BUILDING-U.S. COURTHOUSE\na.kmigon\nSUITE 403\n299 EAST BROWARD BLVD.\nFORT LAUDERDALE, FLORIDA 33301\nCHAMBERS OF\nSAMUEL M. ROSENSTEIN\nPersonal - Not Official\nSENIOR JUDGE\nMay 7, 1985\nHonorable Ronald Reagan\nPresident of the United States\nThe White House\nWashington, D.C.\nCOBY\nDear Mr. President:\nI strongly feel that the continued criticism of your May 5 visit\nto the Bitburg cemetery is unfair and unjust.\nFrom what I have read and heard, when the invitation was extended\nyou symbolized. had no way of knowing who was buried in that cemetery and what it\nAs a man of integrity you felt that having accepted the invitation,\nthe good relationship you had established with Germany would be\nadversely affected if you cancelled the appointment.\nI have no doubt that had you been advised of the entire situation\nin advance, you unquestionably would not have accepted the invitation.\nYou did all that you reasonably could under the circumstances and your\naddress at the airport was a masterpiece.\nAs usual, Mrs. Reagan proved herself to be a most worthy helpmate\nboth in Germany and Italy. Both of you continue to enjoy the respect,\nconfidence, and admiration of thinking, fair-minded people.\nDefinitely, if you are able to accomplish a reconciliation with\nRussia and retain the support of Germany, you will have given a\nhad. legacy to future generations of Americans which they have never before\nWith expressions of my respect and high regard for your and\nMrs. Reagan\nCordially,\nSamuel M. Receartion\nSamuel M. Rosenstein\nSMR/11\nSenior Judge"
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