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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Judges (8)
Box: 30
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
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Contact a reference archivist at: [email protected]
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86 Box 30 - JGR/Judges (8) - Roberts, John G.: Files SERIES
I: Subject File
file
judges
THE WHITE HOUSE
WASHINGTON
May 14, 1985
FOR:
FRED F. FIELDING
RICHARD A. HAUSER
SHERRIE M. COOKSEY
H. LAWRENCE GARRETT, III
JOHN G. ROBERTS
HUGH HEWITT
FROM:
DAVID B. WALLER
Attached for your information are two articles that appear in
this month's issue of Judicature. The articles are entitled
"Reaganizing the judiciary: the first term appointments, and
"The federal judiciary: what role politics?"
Reaganizing the judiciary:
the first term appointments
The Reagan Administration is effectively reshaping
the federal bench. The extent to which
its appointees will reshape public policy remains to be seen.
by Sheldon Goldman
R
onald Reagan's reelection by a land-
slide victory in 1984 was hailed by
some observers as a significant polit-
ical event comparable to Franklin
Roosevelt's reelection in 1936. Both presi-
dents received overwhelming electoral ap-
proval, which was widely interpreted as a
mandate to continue along the course set in
the first term. Both were enormously popular
with the large majority of the populace, al-
though both stimulated considerable anti-
pathy and even denigration from a vocal
minority opposed to Administration philo-
sophy and policy. Both elections could be
seen as confirming a new electoral era in na-
tional politics and new voting patterns among
young voters and other population groups.
In addition, both presidents had spent their
first terms dealing with economic crises and
both used Keynesian economics (without
credit to Keynes in the latter instance) to nurse
313
the economy back to health. Both presidents
had a view of the role of government, includ-
ing the courts, that was radically different
from their immediate predecessors in office.
Indeed, both sought to change the direction
of government, saw the courts as frustrating
Reagan will name
their policy agendas, and self-consciously
a majority of
attempted to use the power of judicial ap-
pointment to place on the bench judges shar-
the lower
ing their general philosophy. And with both,
their presidential campaigns saw the courts
federal judiciary
and judicial appointments emerge as issues.
in active service.
Franklin Roosevelt left a major legacy with
his court appointments that fundamentally
reshaped constitutional law and whose judges
numerically dominated the lower federal
courts for close to a decade after his presi-
dency. Ronald Reagan has already begun the
The Federal Judiciary Almanac.4
groundwork for his judicial legacy. With just
The findings and analyses presented here
two terms in office as compared to Roosevelt's
concern all lifetime federal district and courts
three plus, Reagan will accomplish what
of appeals judges confirmed by the U.S. Sen-
only Roosevelt and Eisenhower accomplished
ate of the 97th and 98th Congresses. The
during the last half century-naming a major-
courts of appeals judges analyzed were only
ity of the lower federal judiciary in active
those appointed to the 11 numbered circuits
service.¹ This makes it all the more signifi-
and the Court of Appeals for the District of
cant to inquire what has been the Reagan first
Columbia. Appointments to the Court of
term record in the realm of judicial selection.
What changes have occurred in the selection
An earlier version of this analysis was presented in a
public lecture at Wake Forest University. The author
process? What is the professional, demograph-
would like to thank his hosts for their generous hos-
ic, and attribute profile of the Reagan appoin-
pitality.
tees and how do they compare with appoin-
1. The Administrative Office of U.S. Courts has cal-
culated that Roosevelt appointed 81.4 per cent of the
tees of previous administrations? Has the
judiciary, Truman 46.5 per cent, Eisenhower 56.1 per
Administration been successful in placing on
cent, Kennedy 32.8 per cent, Johnson 37.9 per cent,
the bench those in harmony with Administra-
Nixon 45.7 per cent, Ford 13.1 per cent, and Carter 40.2
per cent. During his first term, Reagan appointed 24.3
tion philosophy? What can we expect in the
per cent of the judiciary. The Administrative Office esti-
second term? These are the questions that this
mates that by the end of the second term Reagan will have
article confronts.
appointed a majority of the judiciary. At the start of the
second term there were 99 vacancies to be filled. In addi-
The data on the backgrounds and selection
tion there were 52 judges eligible to retire. Furthermore,
of the judges come from a variety of sources
some 81 judges will become eligible to retire during the
including personal interviews, examination
course of the second term. Although all those eligible to
retire do not do so, a large proportion can be expected to
of the questionnaires that all judicial nomi-
assume senior status. Unexpected vacancies caused by
nees complete for the Senate Judiciary Com-
death or resignation will undoubtedly occur and this too
mittee,2 various biographical directories, state
will add to the numbers and proportion of judges
appointed. Administrative Office figures are cited in
legislative handbooks, newspapers from the
Ciolli, Reagan Set for Judicial Record, NEWSDAY, Decem-
appointees' home states, published and un-
ber 9, 1984, at 6.
published confirmation hearings by the Sen-
2. The author would like to thank Mark H. Giten-
stein, Chip Reid, Christine Phillips, and other staff of the
ate Judiciary Committee, the yearly Congres-
minority office, Senate Judiciary Committee, for their
sional Quarterly Almanac, and two recently
cooperation and assistance.
available sources: the second edition of Judges
3. (Washington, D.C.: Government Printing Office,
1983).
of the United States3 and the inaugural vol-
4. Dornette and Cross, FEDERAL JUDICIARY ALMANAC
ume of what promises to be an annual series,
1984 (New York: Wiley, 1984).
314 Judicature Volume 68, Numbers 9-10 April-May, 1985
Appeals for the Federal Circuit, a court of
ships to the President's Committee on Federal
specialized as opposed to general jurisdic-
Judicial Selection.
tion, were not included. The findings for the
The major substantive innovation in the
Reagan first term appointments⁵ are com-
selection process made by the Reagan Admin-
pared to those for the Johnson, Nixon, Ford,
istration is the creation of the President's
and Carter lifetime appointments to courts of
Committee on Federal Judicial Selection.
general jurisdiction. During his first term
This nine-member committee institutional-
Reagan named 129 to the district courts and
izes and formalizes an active White House
31 to the appeals courts.
role in judicial selection. Members of the
Committee from the White House during the
Selection under Reagan
first term included presidential counselor
A striking characteristic of the judicial selec-
Edwin Meese III, White House chief of staff
tion process in the Reagan Administration
James A. Baker III, John S. Herrington,
has been the formalization of the process by
assistant to the President for personnel, M.B.
institutionalizing interaction patterns and
Oglesby, assistant-to the President for legisla-
job tasks that in previous administrations
tive affairs, and presidential counsel Fred
were more informal and fluid. There have
Fielding, who serves as chair of the Commit-
also been changes of more substantive import.
tee. From the Justice Department are the
The center of judicial selection activity in
Attorney General, Deputy Attorney General,
previous administrations was the Deputy At-
Associate Attorney General, and the Assistant
torney General's Office, with an assistant to
Attorney General for Legal Policy.
the deputy responsible for the details, and at
The highest levels of the White House staff
times negotiations, associated with the selec-
have played a continuing active role in the
tion process.⁶ During the Reagan Administra-
selection of judges. Legislative, patronage,
tion these responsibilities have shifted to the
political, and policy considerations are con-
Office of Legal Policy. The Assistant Attor-
sidered to an extent never before so system-
ney General heading that office reports to the
atically taken into account. This has assured
Deputy Attorney General but also has an inde-
policy coordination between the White
pendent role as a member of the President's
House and the Justice Department, as well as
Federal Judicial Selection Committee. Assist-
White House staff supervision of judicial
ing the head of the Legal Policy division in
appointments.
matters concerning judicial selection is the
The Committee does not merely react to the
Special Counsel for Judicial Selection, a post
Justice Department's recommendations; it is
formally established in September of 1984.
also a source of names of potential candida-
The Attorney General, Deputy Attorney Gen-
cies and a vehicle for the exchange of impor-
eral, the Assistant Attorney General for Legal
tant and relevant information. Furthermore,
Policy, the Special Counsel for Judicial Selec-
the president's personnel office conducts an
tion, and some of their assistants meet to
investigation of prospective nominees inde-
make specific recommendations for judge-
pendent of the Justice Department's investi-
gation.⁷ It is perhaps not an overstatement to
5. Technically, Reagan's first term ended on January
20, 1985 after the 99th Congress already had been in
observe that the formal mechanism of the
session for several weeks. Therefore all nominations con-
Committee has resulted in the most consis-
firmed by the Senate up until then should be considered
tent ideological or policy-orientation screen-
first term appointments. However, by January 20 no
nominations had even been sent to the Senate of the 99th
ing of judicial candidates since the first term
Congress. thus the analysis is confined to those con-
of Franklin Roosevelt.
firmed during the 97th and 98th Congresses.
It is also relevant to observe that this selec-
6. See, for example, the discussion and citations in
Goldman and Jahnige, THE FEDERAL COURTS AS A POLIT-
tion process innovation potentially contains
ICAL SYSTEM, 3rd ed., 39-51 (New York: Harper & Row,
an inherent source of tension as the perspec-
1985).
tive from the Justice Department can be quite
7. Interview with Jane Swift, Special Counsel for
Judicial Selection, Office of Legal Policy, Department of
different from that of the White House. The
Justice, December 18, 1984.
cooptation of judicial selection by the Rea-
315
gan White House has now been completed
ministrations which pledged not to nominate
with former presidential counsel Edwin Meese
any person rated "Not Qualified" by the ABA
III now serving as Attorney General.
Standing Committee,⁹ this Administration
Although the consequences of this shift is
has made no such pledge and is willing, if not
immediately apparent in terms of the screen-
persuaded by the Committee, to nominate the
ing of candidates, in the hands of a less ideo-
person of its choice even were the nominee
logically oriented administration partisan pa-
rated "Not Qualified."
tronage considerations could conceivably
This is not to suggest that relations were
become the principal selection criterion. Pro-
cool with the ABA Committee. Senate Judi-
fessional credentials would then be mini-
ciary Committee hearings on the nomination
mized, resulting in a lower quality federal
of J. Harvie Wilkinson to the Fourth Circuit
bench. This is not meant to fault the Reagan
revealed a close working relationship, but
Administration for its innovations in the
that relationship occurred after the Adminis-
selection process. Indeed, from the stand-
tration had decided on Wilkinson, not be-
point of achieving Administration goals,
fore. 11 Of course, the Administration has been
those innovations are rational and functional.
concerned that its nominees receive high ABA
But there may be unintended consequences
ratings, but evidently it has not been willing
from these changes that should be watched by
to give the ABA Standing Committee an
those who are concerned with the administra-
opportunity to influence the selection during
tion of justice.
the more fluid pre-nomination stage.
Another change in the process worthy of
One further observation about the selection
note is that the Reagan Administration is the
process is in order. The Reagan Administra-
first Republican Administration in 30 years
tion repudiated the selection commission
in which the American Bar Association Stand-
concept and in so doing abandoned the most
ing Committee on Federal Judiciary was not
potentially effective mechanism for expand-
actively utilized and consulted in the pre-
ing the net of possible judicial candidates to
nomination stage. From the Eisenhower Ad-
include women and racial minorities, group-
ministration through the Ford Administra-
ings historically excluded from the judiciary.
tion, Justice Department officials sounded
The Carter Administration's record in this
out the ABA Standing Committee for tenta-
regard was unprecedented, with Carter nam-
tive preliminary ratings of the leading candi-
ing to the courts of appeals 11 women, nine
dates for a specific judgeship. These informal
black Americans (including one black wom-
reports could be used by Justice officials in
an), two Hispanics, and the first person of
negotiations with senators and other officials
Asian ancestry (out of a total of 56 appoint-
of the president's party. At times they influ-
ments). The-Reagan record with regard to the
enced the Justice officials' final selection.
appeals courts, as will be discussed shortly,
During the Carter Administration, however,
falls markedly short of that.
this close working relationship ended as the
Administration established its own judicial
selection commission for appeals court ap-
8. Id.
pointments and most Democratic senators
9. But note on his last day in office President Richard
established analogous commissions for dis-
M. Nixon broke that pledge. For details see Goldman and
trict court positions.
Jahnige, supra n. 6, at 44-45.
10. In fact this happened with the nomination of Sher-
The Reagan Administration abolished the
man E. Unger to the U.S. Court of Appeals for the Fed.
selection commission but has, with few excep-
eral Circuit. Unger was rated Not Qualified. However, he
tions, maintained a more formal relationship
died during Senate consideration of his nomination.
11. In particular, see the hearings of the special session:
with the ABA Standing Committee and has
of the Senate Judiciary Committee held on August 7.
not sought preliminary ratings on anyone
1984, HEARINGS BEFORE THE COMMITTEE ON THE JUDI-
but the individual the Administration has al-
CIARY, UNITED STATES SENATE. NINETY-EIGHTH CON
GRESS, SECOND SESSION, PART 3 SERIAL No. J-98-6, 272
ready settled on to nominate.⁸ This has also
274, 280, 283 ff. (Washington, D.C.: U.S. Governmen
meant that unlike previous Republican Ad-
Printing Office, 1985).
316 Judicature Volume 68, Numbers 9-10 April-May, 1985
District court appointments
trum practicing in firms with four or fewer
The findings for selected backgrounds and
members or associates. This is roughly com-
attributes of the 129 Reagan first term ap-
parable to the distribution of the Carter
pointments to the federal district courts are
appointees. Since the Johnson Administra-
presented in Table 1. Also presented in the
tion, proportionately fewer of those in a small
Table are comparable findings for the Carter,
practice have been chosen. Close to one out of
Ford, Nixon, and Johnson Administrations'
four Johnson appointees, but only about one
appointees.
in seven Carter and one in ten Reagan first
Occupation: If we look at the occupation at
term appointees came from a small practice.
time of appointment we find that about 40
Perhaps this is a reflection of the changing
per cent were members of the judiciary on the
nature of the practice of law. 13
state bench or, in several instances, U.S. mag-
Experience: Over 70 per cent of the first
istrates or bankruptcy judges. Only the Carter
term Reagan district court appointments had
Administration of the past five administra-
either judicial or prosecutorial experience, a
tions had a higher proportion of those who
proportion comparable to the appointees of
were serving as judges at the time they were
the Carter Administration, and the second
chosen for the federal district bench. About
highest of all five administrations' appoin-
eight per cent of the Reagan district court
tees. Of special interest and importance is that
appointees were in politics or governmental
the proportion of those with judicial expe-
positions but few of these were U.S. Attor-
rience exceeded the proportion of those with
neys; this also had been true for the Carter
prosecutorial experience-a trend begun only
appointees but not for the appointees of pre-
in the Carter Administration. Before Carter,
vious administrations. It would appear, for
prosecutorial experience was more frequent.
whatever the reason, 12 that the U.S. Attorney
Why the shift toward a greater emphasis on
position is not the direct stepping-stone to a
judicial experience? The reasons may be two-
federal judgeship it once was, although both
fold. First, to the extent that judicial selection
federal and state prosecutorial experience was
commissions are involved in judicial selec-
prominent in the backgrounds of the judges.
tion, and as many as 18 Republican senators
Also of note is that few law school professors
in 14 states have employed them during Rea-
were appointed, in contrast to the Reagan
gan's first term, 14 judicial experience will be
record for the courts of appeals. The Carter,
seen as a desirable and relevant credential.
Nixon, and Johnson Administrations ap-
Commissions have been concerned with the
pointed proportionately more law school
professional quality of prospective nominees,
professors than did Reagan in his first term.
and those with judicial experience have a pro-
Private law practice was the occupation at
fessional track record that can be evaluated.
time of appointment for close to half the Rea-
Second, such track records can also be scrutin-
gan appointees. The range of the size of firm
ized by Justice Department officials to deter-
varied considerably, with close to 12 per cent
mine if the candidate shares the Administra-
affiliated with large firms (with 25 or more
tion's judicial philosophy and ideological
partners and/or associates) and a slightly
outlook. 15 The result of this recent emphasis
lower proportion at the other end of the spec-
on judicial experience may be the growing
professionalization of the American judiciary.
12. See the discussion of possible reasons in Goldman,
Reagan's judicial appointments at mid-term: shaping
Education: The educational background of
the bench in his own image. 66 JUDICATURE 334, at 337
a majority of Reagan appointments to the
(1983).
district courts, as shown in Table 1, was pri-
13. Cf. Goldman and Jahnige, supra n. 6, at 56. In
general. see, THE 1984 LAWYER STATISTICAL REPORT: A
vate school including the highly prestigious
PROFILE OF THE LEGAL PROFESSION IN THE UNITED STATES
Ivy League schools. Only about one-third of
(Chicago: American Bar Foundation, in press).
Reagan appointees attended a public univer-
14. Fowler. A Comparison of Initial Recommendation
Procedures: Judicial Selection Under Reagan and Carter,
sity for undergraduate work, whereas over 57
1 YALE L. & POL'Y REV. 299, 310-20, 347-49 (1983).
per cent of the Carter appointees attended
15. Interview with Jane Swift, supra n. 7.
public colleges-perhaps a reflection of
317
poorer socioeconomic roots of a substantial
indicator. 16 The findings for the Reagan ap-
segment of the Carter judges. Again, with law
pointees are consistent with earlier findings¹⁷
school education, the majority of the Reagan
and compatible with findings from other stu-
appointees attended private law schools while
dies suggesting that the socioeconomic dif-
a bare majority of the Carter appointees
ferences between the Republican and Demo-
attended public-supported law schools.
cratic electorates are mirrored to some degree
Although there are some problems with
in the appointments of Republican and Dem-
equating being able to attend a private under-
graduate college with socioeconomic status,
16. See the discussion in Goldman, supra n. 12, at 339.
the argument can be made that it is a rough
17. Id.
Table 1 How the Reagan first term appointees to the district courts compare
to the appointees of Carter, Ford, Nixon, and Johnson
Reagan
(first term)
Carter
Ford
Nixon
Johnson
%
%
%
%
%
N
N
N
N
N
Occupation:
Politics/government
7.8%
4.4%
21.2%
10.6%
21.3%
10
9
11
19
26
Judiciary
40.3%
44.6%
34.6%
28.5%
31.1%
52
90
18
51
38
Large law firm
100+ partners/associates
3.1%
2.0%
1.9%
0.6%
0.8%
4
4
1
1
1
50-99
3.1%
6.0%
3.9%
0.6%
1.6%
4
12
2
,
2
25-49
5.4%
6.0%
3.9%
10.1%
I
7
12
2
18
I
Moderate size firm
10-24 partners/associates
12.4%
9.4%
7.7%
8.9%
12.3%
16
19
4
16
15
5-9
13.2%
10.4%
17.3%
19.0%
6.6%
17
21
9
34
8
Small firm
2-4 partners/associates
8.5%
11.4%
7.7%
14.5%
11.5%
11
23
4
26
14
Solo practitioner
2.3%
2.5%
1.9%
4.5%
11.5%
3
5
1
8
14
Professor of law
2.3%
3.0%
-
2.8%
3.3%
3
6
-
5
4
Other
1.6%
0.5%
- 1
-
-
2
1
-
-
I
Experience:
Judicial
50.4%
54.5%
42.3%
35.2%
34.4%
65
110
22
63
42
Prosecutorial
43.4%
38.6%
50.0%
41.9%
45.9%
56
78
26
75
56
Neither one
28.7%
28.2%
30.8%
36.3%
33.6%
37
57
16
65
41
Undergraduate education:
Public-supported
34.1%
57.4%
48.1%
41.3%
38.5%
44
116
25
74
47
Private (not Ivy)
49.6%
32.7%
34.6%
38.5%
31.1%
64
66
18
69
38
Ivy League
16.3%
9.9%
17.3%
19.6%
16 4%
21
20
9
35
20
None indicated
I
I
I
0.6%
13.9%
-
-
I
1
17
Law school education:
Public-supported
44.2%
50.5%
44.2%
41.9%
40.2%
57
102
23
75
49
Private (not Ivy)
47.3%
32.2%
38.5%
36.9%
36.9%
61
65
20
66
45
Ivy League
8.5%
17.3%
17.3%
21.2%
21.3%
11
35
9
38
26
318 Judicature Volume 68, Numbers 9-10 April-May, 1985
ocratic Administrations. 18 This has particu-
A word about the professional education of
lar persuasiveness in light of the net worth
the appointees is in order. A study of the Rea-
findings presented in Table 2. In sum, we can
gan appointees at mid-term tentatively con-
observe that with relatively few exceptions,
cluded that as a group the Reagan appointees
there is a tendency for the typical Republican
might have had a marginally less distin-
appointee to be of a higher socioeconomic
guished legal education than the appointees
status than the typical Democratic appointee.
of the four previous presidents. 19 This was
based on the relatively small proportion of
18. See Goldman and Jahnige, supra n. 6, at 52-57.
appointees with an Ivy League law school
19. Goldman, supra n. 12, at 340.
education, the smallest proportion over the
Reagen
(first term)
Carter
Ford
Nixon
Johnson
%
%
%
%
%
N
N
N
N
N
Gender:
Male
90.7%
85.6%
98.1%
99.4%
98.4%
117
173
51
178
120
Female
9.3%
14.4%
1.9%
0.6%
1.6%
12
29
1
1
2
Ethnicity or race:
White
93.0%
78.7%
88.5%
95.5%
93.4%
120
159
46
171
114
Black
0.8%
13.9%
5.8%
3.4%
4.1%
1
28
3
6
5
Hispanic
5.4%
6.9%
1.9%
1.1%
2.5%
7
14
1
2
3
Asian
0.8%
0.5%
3.9%
-
-
1
1
2
-
-
A.B.A. retings:
Exceptionally well qualified
6.9%
4.0%
-
5.0%
7.4%
9
8
-
9
Well qualified
9
43.4%
47.0%
46.1%
40.2%
40.9%
56
95
24
72
Qualified
50
49.6%
47.5%
53.8%
54.8%
49.2%
64
96
28
98
Not qualified
60
-
1.5%
-
-
2.5%
-
3
-
-
3
Party:
Democratic
3.1%
92.6%
21.2%
7.3%
94.3%
4
187
11
13
Republican
115
96.9%
4.9%
78.8%
92.7%
5.7%
125
10
41
166
Independent
7
-
2.5%
-
-
-
-
5
-
-
-
Past party activism:
61.2%
60.9%
50.0%
48.6%
49.2%
79
123
26
87
60
Religious origin or affiliation:
Protestant
61.2%
60.4%
73.1%
73.2%
58.2%
79
122
38
Catholic
131
71
31.8%
27.7%
17.3%
18.4%
31.1%
41
56
9
Jewish
33
38
6.9%
11.9%
9.6%
8.4%
10.7%
9
24
5
15
13
Total number of appointees
129
202
52
179
122
Average age at appointment
49.6
49.7
49.2
49.1
51.4
319
past five administrations. The proportion
the whole, was marginally less distinguished
has remained constant for the entire first term
than the appointees of previous presidents.
appointments. However, the same caveat
Affirmative action: The record of the Rea-
noted earlier must be repeated here-that is,
gan first term district court appointments is a
that a number of Reagan appointees as well
mixed one with regard to gender and race/
as appointees of other presidents attended dis-
ethnicity. The Reagan Administration was,
tinguished non-Ivy League schools includ-
of course, responsible for the historic appoint-
ing Michigan, Virginia, Berkeley, Stanford,
ment of the first woman to the Supreme
and N.Y.U. Interestingly, a study conducted
Court. At the district court level, the record, as
by Fowler found that a smaller proportion of
indicated by Table 1, shows that the Reagan
the Reagan appointees than the Carter ap-
Administration's appointment of women was
pointees attended "prestige" law schools,20
second only to the Carter Administration.
which supports the earlier conclusion that
the Reagan appointees' legal education, on
20. Fowler, supra n. 14, at 350.
The appointees' political and legal credentials
Among the Reagan appointees to the lower
in the campaigns of Tennessee Republi-
courts confirmed by the Senate of the 98th
cans Senator Howard Baker and Governor
Congress are the following persons with
Lamar Alexander, and served as a Tennes-
political and legal credentials worthy of
see circuit court judge for the 15th Judicial
special note.¹
Circuit.
Sarah Evans Barker was active in Re-
Elizabeth V. Hallanan had been a
publican politics in Indiana and also
member of the West Virginia House of
played an important role in Illinois Repub-
Delegates, was co-chair in 1976 of the West
lican Senator Charles Percy's reelection
Virginia Committee to Elect Gerald Ford,
campaign in 1972. She served as assistant
served as Chair of the Public Service Com-
U.S. Attorney for the southern district of
mission of West Virginia, and had expe-
Indiana and eventually became the U.S.
rience as a juvenile court judge.
Attorney.
Stanley S. Harris was a former law
Robert R. Beezer was once active in
partner of Republican Senator John
Seattle Republican politics. He had expe-
Warner and served on the local District of
rience as a municipal court judge as well as
Columbia courts before being appointed
a special prosecuting attorney. He was a
U.S. Attorney for the District of Columbia.
member of a major Seattle law firm at the
He was rated Exceptionally Well Qualified
time of his appointment to the U.S. Court
by the ABA for the federal district court
of Appeals for the Ninth Circuit.
position on the District of Columbia
Franklin S. Billings, Jr., once a lead-
bench.
ing Vermont legislator serving as secretary
Robert M. Hill had been active in Re-
of the Vermont Senate and later as Speaker
of the House, was Chief Justice of the Ver-
mont Supreme Court when chosen for the
1. See Goldman, Reagan's judicial appointments
federal district bench.
at mid-term: shaping the bench in his own image, 66
JUDICATURE 334, at 341 (1983) for examples of those
Peter C. Dorsey was a candidate for
with impressive political and legal credentials con-
state attorney general in his native Con-
firmed by the Senate of the 97th Congress. It should be
understood that the listing is not exhaustive and that
necticut, and had served as U.S. Attorney.
there are those not mentioned who also had note-
Julia Smith Gibbons had been active
worthy legal credentials.
320 Judicature Volume 68, Numbers 9-10 April-May, 1985
Over nine per cent of the appointments went
Attorney General and Jane Swift as Special
to women, and this suggests that the Admin-
Counsel for Judicial Selection in the Office of
istration, as well as some Republican sena-
Legal Policy. It is likely that women in key
tors, made an effort to recruit well qualified
Justice Department positions will be sensi-
women. While it is true that the large major-
tive to sexual discrimination in the judicial
ity of all appointees of all five administra-
selection process.
tions have been male, the Reagan Adminis-
The record as to black appointments, how-
tration must be given credit for continuing
ever, is markedly different. The Reagan first
the push for sexual equality in the recruit-
term record is not only the worst of all five
ment of federal district judges. It is also sig-
administrations, as suggested by Table 1, it is
nificant to note that by the end of the first
the worst since the Eisenhower Administra-
term two women held important Justice
tion in which no blacks were appointed to
Department positions that are concerned with
life-time district court positions. Justice De-
judicial selection: Carole Dinkins as Deputy
partment officials are aware of this poor
publican politics before being appointed
of a major New York City law firm.
by President Richard M. Nixon to the fed-
H. Ted Milburn was active in the
eral district bench in 1970. President Rea-
Howard Baker and Nixon-Agnew cam-
gan elevated him in 1984 to the Court of
paigns and was serving as a Tennessee cir-
Appeals for the Fifth Circuit.
cuit court judge for the 6th Judicial Circuit
Ricardo H. Hinojosa was a county Re-
when recruited for the federal district bench
publican Party chairman, was south Texas
in 1983. In October of 1984 he was elevated
co-chairman of the Reagan-Bush cam-
to the U.S. Court of Appeals for the Sixth
paign in 1980, was active in other Republi-
Circuit.
can campaigns, and was an associate in a
Edward C. Prado was active in his
major McAllen, Texas, law firm at the time
home county Republican Party, served as
he was picked for the federal district bench.
an assistant district attorney, had expe-
Thomas Gray Hull was a Tennessee
rience as a state district judge, and was U.S.
state legislator, served as a Tennessee cir-
Attorney for the Western District of Texas
cuit court judge for the 20th Judicial Cir-
when picked for the federal district court
cuit, and was legal counsel to Governor
bench.
Lamar Alexander.
Ilana Diamond Rovner was active in
Marvin Katz was a former law partner
Republican campaigns in Illinois includ-
of Republican Senator Arlen Specter and
ing service as Vice Chair of the Illinois
was a member of a prestigious Philadel-
Finance Committee for Reagan-Bush. She
phia law firm at the time of his appoint-
served as an Assistant U.S. Attorney for
ment to the federal district court.
four years and was Legal Counsel to Gov-
Charles A. Legge was vice chair of the
ernor James Thompson when chosen for
San Francisco Lawyers Committee for
the federal district court bench.
Reagan-Bush and was a partner in a major
Anthony J. Scirica was a member of
San Francisco law firm at the time of his
the Pennsylvania General Assembly, had
appointment.
served as an assistant district attorney, and
Peter K. Leisure had been active in
was a state judge at the time he was picked
Republican campaigns, had service as an
for the federal district court bench.
assistant U.S. Attorney, and was a member
-Sheldon Goldman
321
record and have said they would like it to
Table 2
Net worth of Reagan appointees compared
to the net worth of the Carter appointees
improve, but feel that it is extraordinarily
difficult to find well qualified blacks who
Reagan
Carter
(first term)
(96th Congress)
share the President's philosophy and are also
District
Appeals
District
Appeals
willing to serve. 21 Critics respond that the
%
%
F
F
Administration has not made the recruitment
N
N
N
N
Under $100,000
6.2%
3.3%
12.8%
5.1%
of blacks a high priority in part because the
B
1
19
2
black electorate votes overwhelmingly Demo-
100,000-150.000
8.5%
3.3%
14.9%
12.8%
11
1
22
5
cratic, and there is little political payoff in the
150,000-199,999
3.9%
3.3%
8.1%
15.4%
appointment of blacks. In contrast, the pro-
5
1
12
6
0-199,999 total
18.6%
10.0%
35.8%
33.3%
portion of Hispanics was second only to that
24
3
53
13
of the Carter Administration. Some observers
200,000-399.000
25.6%
23.3%
29.7%
28.2%
link that fact to the Republican Party effort to
33
7
44
11
WOO Hispanic voters in the 1984 election.
400,000-499,000
11.6%
13.3%
11.5%
10.3%
15
4
17
4
ABA ratings and other factors: When we
500,000-999,999
21.7%
30.0%
18.9%
17.9%
examine the ratings of the ABA Standing
28
9
28
7
200,000-999,999 total
58.9%
66.7%
60.1%
56 4%
Committee on Federal Judiciary we find that
76
20
89
22
about seven per cent of the Reagan first term
1 to 2 million
17.0%
20.0%
2.0%
7.7%
appointees to the district courts received the
22
6
3
3
highest rating, that of Exceptionally Well
over 2 million
5.4%
3.3%
2.0%
2.6%
7
1
3
,
Qualified. This is the best record since the
1+ million total
22.5%
23.3%
4.0%
10.3%
Johnson Administration. The next highest
29
7
6
4
rating, that of Well Qualified, was received by
Total %
100.0%
100.0%
99.9%
100.0%
about 43 per cent, which means that half the
Total number of
appointees
129
30'
148²
39³
Reagan appointees were in the top two cate-
gories. The Carter appointees received pro-
1. Net worth unavailable for one appointment. Source for all other
portionately more Well Qualified ratings than
Reagan appointees was the questionnaires submitted to the Senate
Judiciary Committee and reviewed by the author.
did the Reagan appointees but fewer Excep-
2. Professor Elliot Siotnick generously provided the net worth figures
for all but six appointees for whom he had no data.
tionally Well Qualified ratings. However,
3. There were five additional judges appointed by Carter for whom no
information was listed in the source consulted. Legal Times of Washing-
when the top two ratings are combined, 51
ton, October 27. 1980. at 25.
per cent of the Carter appointees fell into
political activities. Instead, it must be recog-
those categories-about the same as the Rea-
nized that a history of party activity is helpful
gan appointees. If the ABA ratings are taken
to a judicial candidacy only when other fac-
as a rough measure of "quality," the Reagan
tors are present such as distinguished legal
appointments may be seen as equaling the
credentials, and, particularly as far as the
Carter appointees in quality and marginally
Reagan Administration is concerned, a judi-
surpassing the appointments of Ford, Nixon,
cial philosophy in harmony with that of the
and Johnson.
Administration. Suffice it to note that many
In terms of party affiliation of district court
of the Reagan appointees to both the district
appointees, approximately 97 per cent of the
and appeals courts had impressive legal cre-
Reagan appointees were Republican, the
dentials as well as a background of partisan
highest partisanship level of all five adminis-
activism (see "The appointees' political and
trations and the highest proportion of a presi-
legal credentials," page 320). Also observe
dent choosing members of his own party
that about four out of ten Reagan appointees
since Woodrow Wilson.²² The figures for pre-
did not have a record of prominent partisan
vious prominent party activism suggest that
21. Interview with Jane Swift, supra n. 7.
the Reagan appointees had the highest pro-
22. See Evans, Political Influences in the Selection of
portion of all five administrations. However,
Federal Judges, WIS. L. REV. 330-51 (1948) reprinted in
there is no suggestion that the Reagan appoin-
Scigliano, ed., THE COURTS 65-69 (Boston: Little Brown,
1962). Also see, Burns, Peltason, and Cronin, GOVERN-
tees with a record of party activism received
MENT BY THE PEOPLE, 9th ed., 406 (Englewood Cliffs.
their appointments solely because of their
New Jersey: Prentice-Hall, 1975).
322 Judicature Volume 68, Numbers 9-10 April-May, 1985
activism, although they of course had to
appointees,23 that there is somewhat of a class
receive sufficient political backing or clear-
difference between the Republican and Demo-
ance in order to have been nominated.
cratic appointees on the whole that is analo-
The religious origins or religious affilia-
gous to the socioeconomic differences among
tion of the Reagan first term district court
the electorates of the two parties. However,
appointees differed markedly from the ap-
the findings also suggest that the Reagan and
pointees of previous Republican administra-
Carter appointees were for the most part
tions; Reagan appointed more Catholics and
drawn from the middle to upper classes.
fewer Protestants-proportions similar to
those of Democratic administrations. In fact,
Appeals court appointments
as Table 1 shows, the Republican Reagan
Traditionally, senators of the president's party
Administration appointed proportionately
have had considerably less influence in the
more Catholics than did the Democratic Car-
selection of appeals court as distinct from
ter and Johnson Administrations. In the past,
district court judges. This has meant that
Republican administrations appointed more
administrations have had more of an oppor-
Protestants and fewer Catholics and Jews
tunity to pursue their policy agendas (such as
than did Democratic administrations; this
they may have them) by way of recruiting
could be attributed to the fact that the reli-
appeals judges who are thought to be philo-
gious composition or mix of the parties was
sophically sympathetic with such agendas.
different and thus, to a large extent, so was the
We can so view the 31 first term Reagan
pool of potential judicial candidates from
appointments to the courts of appeals with
both parties. The finding for the Reagan ap-
general jurisdiction as compared to the 56
pointees does not mean that the Administra-
Carter, 12 Ford, 45 Nixon and 40 Johnson
tion gave greater preference to Catholics be-
appointees. Because there are fewer appeals
cause of their religion than did previous
judges than district judge appointments, dif-
Republican administrations, but rather that
ferences in percentages, as reported in Table
more Catholics have entered the potential
3, must be treated with caution.
pool from which Republican judicial nomi-
Occupation and experience: A striking find-
nees emerge thus increasing their proportion
ing of Table 3 is that three out of five Reagan
of appointees. This is consistent with the rel-
appeals court appointees and over half the
atively heavy Catholic vote for Reagan in
Ford, Nixon, and Johnson appointees were
1980 and especially 1984.
already serving in the judiciary at the time of
The average age of the Reagan appointees
their appointment to the courts of appeals. Of
was about that of the Carter appointees and
the 19 Reagan appointees who were judges at
similar to that of the appointees of the pre-
the time of appointment, 16 were serving as
vious three presidents.
federal district judges and the remaining
The net worth of the Reagan appointees as
three on the state bench. Just as with the
compared to the Carter appointees is pre-
selection of federal district judges, Justice
sented in Table 2. There are differences in
Department officials felt more secure evaluat-
degree at both ends of the financial spectrum.
ing the candidacies of those with judicial
There were proportionately more million-
track records. The Reagan Administration
aires among the Reagan district court appoin-
was particularly concerned not only with the
tees, over five times as many as the Carter
professional quality of prospective nominees,
appointees, and proportionately fewer Rea-
but also with their judicial philosophy. As
gan appointees at the lower end of the eco-
presidential counsel Fred F. Fielding noted,
nomic spectrum. This suggests, along the
"We have an opportunity to restore a philo-
lines reported in the 1983 study of Reagan
sophical balance that you don't have across
the board right now."24
23. Goldman, supra n. 12, at 345-46.
The promotion of a lower court judge to a
24. Brownstein, With or Without Supreme Court
Changes. Reagan will Reshape the Federal Bench. 16
higher court can also be seen as furthering the
NATIONAL JOURNAL 2238 at 2340 (December 8. 1984).
concept of a professional judiciary, although
323
it does not appear that pure merit was the
on the federal district bench.
governing factor with the Reagan first term
Another striking finding of Table 3 is the
elevations. 25 The same undoubtedly holds
proportion of Reagan appeals court appoin-
true for the appointments of other adminis-
tees who were law school professors at the
trations. Politically, the elevation of a federal
time of appointment. Because Robert Bork
district judge enables an administration to
25. If the ABA ratings are taken as overall indicators of
make two appointments: the elevation that
quality, only 4 of the 19 judicial promotions were rated
Exceptionally Well Qualified, 12 received the Well Qual-
fills the appeals court position; and the
ified designations, and 3 were given the lowest rating of
appointment to fill the vacancy thus created
Qualified.
Table 3 How the Reagan first term appointees to the courts of appeals compare
to the appointees of Carter, Ford, Nixon, and Johnson
Reagen
(first term)
Carter
Ford
Nixon
Johnson
%
%
%
%
%
N
N
N
N
N
Occupation:
Politics/government
3.2%
-%
8.3%
4.4%
10.0%
,
-
1
2
4
Judiciary
61.3%
46.4%
75.0%
53.3%
57.5%
19
26
9
24
23
Large law firm
1.8%
-
100+ partners/associates
-
-
-
1
-
-
-
-
50-99
3.2%
5.4%
8.3%
2.2%
2.5%
1
3
1
1
1
25-49
6.4%
3.6%
-
2.2%
2.5%
2
2
1
1
-
Moderate size firm
10-24 partners/associates
3.2%
14.3%
-
11.1%
7.5%
1
8
5
3
-
5-9
6.4%
1.8%
8.3%
11.1%
10.0%
2
1
1
5
4
Small firm
2-4 partners/associates
-
3.6%
-
6.7%
2.5%
-
2
-
3
1
Solo practitioner
-
1.8%
-
-
5.0%
-
1
-
-
2
Professor of law
16.1%
14.3%
-
2.2%
2.5%
5
8
-
1
1
Other
-
1.8%
-
6.7%
-
-
1
-
3
-
Experience:
Judicial
70.9%
53.6%
75.0%
57.8%
65.0%
22
30
9
26
26
Prosecutorial
19.3%
32.1%
25.0%
46.7%
47.5%
6
18
3
21
19
Neither one
25.8%
37.5%
25.0%
17.8%
20.0%
B
21
3
B
8
Undergraduate education:
Public-supported
29.0%
30 4%
50.0%
40.0%
32.5%
9
17
6
18
13
Private (not Ivy)
45.2%
50.0%
41.7%
35.6%
40.0%
14
28
5
16
16
Ivy League
25.8%
19.6%
B.3%
20.0%
17.5%
8
11
,
9
7
None indicated
-
I
-
4.4%
10.0%
-
-
2
4
-
Law school education:
Public-supported
35.5%
39.3%
50.0%
37.8%
40.0%
11
22
6
17
16
Private (not Ivy)
484%
19.6%
25.0%
26.7%
32.5%
15
11
3
12
13
Ivy League
16.1%
41.1%
25.0%
35.6%
27.5%
5
23
3
16
11
324 Judicature Volume 68, Numbers 9-10 April-May, 1985
had left his professorship at Yale Law School
sors, were all known as conservative thinkers
some six months before and at the time of
and advocates of judicial restraint with a ten-
selection was a senior partner in the Washing-
dency toward deference to government in mat-
ton, D.C. firm of Kirkland & Ellis, he was not
ters of alleged civil liberties or civil rights
counted in the professor of law category. Were
violations. These appointees also had a track
he counted, the proportion of professors of
record of published works so that their candi-
law would be about one out of five Reagan
dacies could be evaluated as to their compati-
appeals court appointees, a modern record.
bility with the Administration's vision of the
Bork, as well as the five other law profes-
role of the courts. Further, the appointment of
Reagan
(first term)
Carter
Ford
Nixon
Johnson
%
%
%
%
%
N
N
N
N
N
Gender:
Male
96.8%
80.4%
100.0%
100.0%
97.5%
30
45
12
45
39
Female
3.2%
19.6%
-
-
2.5%
1
11
-
-
1
Ethnicity or race:
White
93.5%
78.6%
100.0%
97.8%
95.0%
29
44
12
44
38
Black
3.2%
16.1%
-
--
5.0%
1
9
-
-
2
Hispanic
3.2%
3.6%
-
-
I
1
2
-
I
-
Asian
-
1.8%
-
2.2%
1
-
1
-
1
I
A.B.A. ratings:
Exceptionally well qualified
22.6%
16.1%
16.7%
15.6%
27.5%
7
9
2
7
11
Well qualified
41.9%
58.9%
41.7%
57.8%
47.5%
13
33
5
26
19
Qualified
35.5%
25.0%
33.3%
26.7%
20.0%
11
14
4
12
8
Not qualified
-
-
8.3%
-
2.5%
-
-
1
-
1
No report requested
-
-
-
-
2.5%
-
-
-
-
1
Party:
Democratic
-
82.1%
8.3%
6.7%
95.0%
-
46
1
1
38
Republican
100.0%
7.1%
91.7%
93.3%
5.0%
31
4
11
42
2
Independent
-
10.7%
-
-
I
-
6
-
-
I
Past party activism:
58.1%
73.2%
58.3%
60.0%
57.5%
18
41
7
27
23
Religious origin or attiliation:
Protestant
67.7%
60.7%
58.3%
75.6%
60.0%
21
34
7
34
24
Catholic
22.6%
23.2%
33.3%
15.6%
25.0%
7
13
4
7
10
Jewish
9.7%
16.1%
8.3%
8.9%
15.0%
3
9
1
4
6
Total number of appointees
31
56
12
45
40
Average age at appointment
51.5
51.9
52.1
53.8
52.2
325
school education was the lowest of all five
administrations. Although some of the ap-
pointees attended prestigious non-Ivy League
law schools both public and private, it may be
that the quality of legal education of the Rea-
Only one appeals
gan appeals court appointees, like that of the
district court appointees, was on the whole
court nominee was
somewhat lower than the Carter appointees, a
female, one was black,
finding also reported by Fowler.2
In terms of appointments of women and
and one, Hispanic.
minorities, the first term Reagan record for
the appeals courts can be seen as a dramatic
retreat from the Carter record. Of 31 appeals
court appointees only one was a woman, only
one was black, and only one was Hispanic.
Whether the participation of Carole Dinkins
(until her departure from the Justice Depart-
academics was expected to provide intellec-
ment in March 1985) and Jane Swift in the
tual leadership on the circuits and a potential
selection process will result in the active con-
pool of candidates for vacancies that might
sideration and recruitment of women to the
occur on the Supreme Court. It will be of more
appeals courts will be something to watch for
than academic interest to see whether the sec-
during the second term. It may be that the
ond term appointments will draw as heavily
male dominated selection process is such that
from the law schools as did those from the first
there is greater willingness to recruit women
term. Over the last 20 years (and excluding the
for the district bench than for the more
small number of Ford appointees), the Rea-
important and prestigious appeals courts.
gan Administration drew the least from the
The Administration may also want their
ranks of those in private practice.
women appointees to the district courts to
In terms of experience, about three out of
prove themselves on the bench before being
four Reagan appointees had judicial or prose-
actively considered for promotion.
cutorial experience in their backgrounds, with
ABA ratings and other factors: The propor-
judicial experience being the most prominent.
tion of Reagan appointees with the highest
Indeed, over three times as many appeals court
ABA rating, that of Exceptionally Well Quali-
appointees had judicial experience as had
fied, was the highest since the Johnson Ad-
prosecutorial experience, and the proportion
ministration. However, the Reagan appoin-
with prosecutorial experience was the lowest
tees also had the highest proportion of all five
of the five administrations. This also supports
administrations of those with the lowest Qual-
the suggestion that Justice officials were more
ified rating. Interestingly, all five who were
concerned with judicial track records in eval-
professors of law at the time of their nomina-
uating ideological compatibility than with
tions were only rated Qualified despite their
prosecutorial track records.
distinguished legal scholarly achievements.
Education and affirmative action: The ma-
This suggests that the ABA ratings are biased
jority of the Reagan appointees as well as the
against legal academics who are not active
Carter, Nixon, and Johnson appointees at-
practitioners. Had Robert Bork remained on
tended private schools for both their under-
the Yale Law School faculty rather than join-
graduate and law school training. About one
ing Kirkland & Ellis, it is a matter of conjec-
out of four Reagan appointees had an Ivy
ture whether he would have received the
League undergraduate education, the highest
Exceptionally Well Qualified rating he in fact
proportion of the appointees of the five
received as a senior partner of that prestigious
administrations. However, the proportion of
Reagan appointees with an Ivy League law
26. Fowler. supra n. 14, at 352.
326 Judicature Volume 68, Numbers 9-10 April-May, 1985
District of Columbia firm.
courts, as well as the district courts, under-
None of the Reagan first term appointees to
score the importance of Chief Justice Warren
the appeals courts were Democrats. The ab-
Burger's urgent request that Congress dramati-
sence of any appointees affiliated with the
cally increase the pay of the federal judiciary.²
opposition political party last occurred in the
The Chief Justice observed that since he
Administration of Warren Harding.² As for
became Chief Justice 30 of the 43 resignations
prominent past partisan activism, however,
from the federal bench were due in part to
the proportion is lower than that for the Car-
financial reasons. 29 Although there are differ-
ter appointees and comparable to that of the
ences in degree between the Carter and Rea-
Ford, Nixon, and Johnson appointees (see
gan appointees' wealth that may mirror to
"The appointees' political and legal creden-
some extent different constituencies of the
tials," page 320).
parties, there is a very real danger that the
As for religious origin or affiliation, the
federal courts will soon become the preserve of
Reagan appeals court appointments were
the wealthy for only they will be able to afford
somewhat similar to his district court ap-
the assumption of judicial office. If it is consi-
pointments with the proportion of Catholics
dered desirable that monetary considerations
akin to that of the previous Democratic
not affect judicial recruitment, then judicial
Administrations of Carter and Johnson.
salaries will have to be increased significantly.
Given the importance of the appeals courts
and the desire of the Reagan Administration to
Ideological success?
place on the bench those with a judicial philo-
We have thus far seen how the Reagan Admin-
sophy compatible with that of the Administra-
istration has to some extent reshaped the
tion, one might expect that there would be an
judicial selection process, and we have exam-
active effort to recruit younger people who
ined the demographic and attribute profiles
could be expected to remain on the bench long-
of the Reagan district and appeals court
er. There is a hint that this may have occurred.
appointees as compared to those of four pre-
The average age of the Reagan appointees was
vious presidents. The questions remain, have
51.5, the lowest for all five administrations.
the Reagan appointees met the expectations
The net worth of the Reagan appointees
of the Administration? Have the Reagan
compared to the Carter appointees is found in
appointees begun to shift the ideological bal-
Table 2 and the differences between both
ance on the lower courts?
groups of appointees are similar to those for
The answers to these questions must await
the district court appointees. Over one in five
systematic empirical analysis; there is frag-
Reagan appointees were millionaires as
mentary evidence that has begun to emerge,
compared to one in ten Carter appointees.
however, that suggests that the Reagan Ad-
Two-thirds had a net worth between $200,000
ministration on the whole is satisfied. For
and under $1 million, compared to 56 per cent
example, a study by the Center for Judicial
of the Carter appointees. At the lowest end of
Studies of every decision published by every
the net worth continuum, one in ten Reagan
Reagan appointee serving during the first
appointees had a net worth of under $200,000,
two years of Reagan's first term concluded
compared to one in three of the Carter
that the overwhelming majority of appoin-
appointees.
tees demonstrated judicial restraint along the
The net worth findings for the appeals
lines favored by the Administration.
Students in a seminar at the University of
27. See, LEGISLATIVE HISTORY OF THE UNITED STATES
CIRCUIT COURTS OF APPEALS AND THE JUDGES WHO SERVED
Massachusetts-Amherst conducted a class pro-
DURING THE PERIOD 1801 THROUGH MAY 1972 U.S.
ject in which published decisions of selected
Senate. Committee on the Judiciary, 92nd Cong., 2nd
appeals courts and Reagan appointees were
Sess. 2 (1972).
28. See, Lauter, Burger Lists 1985 Desires: More Pay,
analyzed. Although these analyses were ex-
Another Justice, NATIONAL LAW JOURNAL, January 14,
ploratory and their findings must be inter-
1985. at 5.
preted with caution, here, too, it would
29. Id.
30. Brownstein, supra n. 24, at 2341.
appear that, with few exceptions, the Reagan
327
torious for being treated as merely campaign
rhetoric, the 1984 Republican Party platform
can be seen as containing a good summary of
Future appointees
the Reaganizing philosophy for the judiciary
that also points the way for the second term.
will most likely
The platform reads in part:
be white, male
Judicial power must be exercised with deference
towards state and local officials
It
is
not
a
judi-
and Republican.
cial function to reorder the economic, political,
and social priorities of our nation
We com-
mend the President for appointing federal judges
committed to the rights of law-abiding citizens
and traditional family values In his second
term, President Reagan will continue to appoint
appointees have joined the more conservative
Supreme Court and other federal judges who share
wings of their courts particularly on issues of
our commitment to judicial restraint.35
alleged violations of civil liberties. Another
finding that emerged was that the differences
Future appointments
that occurred between the Reagan appointees
Although the above quote from the 1984
and the Carter (and other Democratic) appoin-
Republican Party platform does suggest the
tees were differences of degree and that it was
ideological or philosophical outlook of the
rare for there to be the sort of dramatic cleav-
people the Administration will be seeking for
ages on the appeals courts as is found on the
judgeships during the second term, we can
Supreme Court. Nevertheless, the Reagan ap-
also offer some projections as to the likely
pointees appear to be making their imprint.
makeup of the demographic and attribute
Other accounts of the Reagan appointees
profiles of second term appointees. Central to
on the courts have also focused on the appeals
this undertaking is the realization that just as
courts. In one, Jonathan Rose, the former
there was no indication at the start of the
Assistant Attorney General for Legal Policy
second term that there would be sharp altera-
during the first three years of Reagan's first
tions in other areas of public policy, so with
term, was quoted as being "tremendously
the judiciary there is no reason to anticipate a
pleased" with the records of the law profes-
shift in the course already set during the first
sors chosen by the Administration for the
term. What this means is that second term
appeals courts.32 An extensive analysis of
appointees will continue to be predominantly
Robert Bork's record" and more anecdotal
31. The seminar was held in the Fall of 1984. The
accounts of other appointees also provide
students involved were: Karen Ahlers, Julia L. Anderson,
additional evidence on this point.
Leslie A. Brown, Nicole M. Caron, Michael J. Deltergo,
At the Supreme Court level there is reason
Kathleen M. Moore, Matthew F. Moran, Paul M. She-
pard, Barry J. Siegel, Valerie Singleton, David A. Smailes,
for the Administration to be pleased with its
and Paul W. Throne. Cases were generally classified
appointee Justice Sandra Day O'Connor.
using the methods described in Goldman, Voting Behav-
O'Connor was either the second or third most
ior on the United States Courts of Appeals Revisited, 69
AM. POL. Sci. REV. 491 (1975). The circuits examined
conservative justice in matters of civil liber-
were the Second, Third, Fourth, Fifth, Sixth, Seventh,
ties, rejecting the civil liberties claim in 71 per
and the District of Columbia. Separate studies of Reagan
cent of the cases decided with full opinion in
appointees Robert Bork, Lawrence Pierce, Richard
Posner, Antonin Scalia, and Ralph Winter were also
the 1981 term, and in the 1982 and 1983 terms
conducted.
rejecting 75 per cent of such civil liberties
32. LEGAL TIMES OF WASHINGTON, October 22, 1984. at
arguments. Her opinions, whether for the ma-
15.
33. Id. at 1, 10-15.
jority, concurrences, or dissents on a variety of
34. See, for example, NEW YORK TIMES. August 23,
issues ranging from abortion to criminal
1984, at B-8 and BOSTON GLOBE, July 29, 1984. at A-28.
procedures were surely, with few exceptions, a
35. See the text of the 1984 Republican Party platform
and in particular the quoted material in 42 CONGRES-
source of satisfaction to the Administration.
SIONAL QUARTERLY WEEKLY REPORT 2110 (August 25,
Although political party platforms are no-
1984).
328 Judicature Volume 68, Numbers 9-10 April-May, 1985
white male Republicans, many of whom are
another historic appointment and at the same
at the upper end of the socioeconomic spec-
time have an associate justiceship to fill. But
trum. Women will likely continue to receive
even if the President makes no Supreme
appointments at a level comparable to that
Court appointments, the Reagan Adminis-
for the first term, which will place the Reagan
tration will have left an indelible mark on the
Administration second only to the Carter
judiciary and the course of American law
Administration in terms of appointments to
with its lower court appointments.
women. As for black Americans, there is no
Ours is a historic political era that in the
reason to believe that there will be a marked
pendulum of American politics has come
change from the poor record of the first term
every 30 to 40 years. The era of New Deal
during the second term.
Democratic political domination of Ameri-
Judicial experience should continue to be
can politics ended with the election of 1968.
important for the Administration and used to
In all likelihood, were it not for Watergate,
assess the track record of prospective appoin-
the new conservative Republican era would
tees. For the courts of appeals, law school
then have been firmly established. It took
professors will likely continue to hold some
Ronald Reagan and his Administration to
attraction for the Administration, both be-
seize the historic opportunity to reshape
cause of the relative ease of identifying a judi-
American politics. Barring economic or mil-
cial philosophy from published writings and
itary catastrophies, the cycle of conservative
the desire to place conservative intellectual
Republican domination may well last until
leaders on these important collegial courts.
the turn of the century. The Reagan Adminis-
It will be of interest to see whether the Ad-
tration correctly sees the courts as having the
ministration broadens its recruitment efforts,
power to further or hinder Administration
particularly at the appeals court level, to find
goals; thus judicial appointments are of ma-
Democrats who share the Administration's
jor importance for this Administration in its
outlook or whether the extreme partisanship
attempt to reshape public policy. How suc-
discussed previously will prevail during the
cessful the Administration will ultimately be
second term.
must await more extensive analysis of the
Of major interest during the second term
judicial decisionmaking of the first and sec-
will be the filling of any Supreme Court vacan-
ond term appointments.
cies that occur. There is frequent speculation
The Roosevelt Administration was success-
along these lines in the media. 36 How a Su-
ful in its struggle with the federal judiciary
preme Court vacancy is filled will signal the
and the federal courts abandoned or modified
seriousness of the Administration's ideological
interpretations of the Constitution that, in the
goals. If the Administration turns to a conserva-
name of economic liberty, had prevented gov-
tive personal friend of the President's not
ernment from acting in certain areas of eco-
known for intellectual brilliance instead of one
nomic and social welfare policy. The crucial
of the conservative intellectual leaders on the
question now is will the Reagan Administra-
appeals courts, it may be interpreted as a fail-
tion be successful in its struggle with the fed-
ure to fully utilize the power of appointment to
eral judiciary to have the federal courts aban-
most effectively reshape judicial policy.
don or modify interpretations of the Constitu-
There has also been speculation about the
tion that, in the name of civil liberty, place
Chief Justiceship. If the Chief Justiceship
restraints on government when acting in cer-
becomes vacant, it is possible that Justice
tain areas concerning protection from crimi-
'Connor would be elevated to that position,
nals, public morality, and social policy? It is
thus enabling the Administration to make
no surprise that students of the courts will be
intently watching judicial appointments by a
36. See, for example, Stark, Will Court Bear Reagan
second term Reagan Administration.
Brand? BOSTON GLOBE, July 29. 1984, at A-25, A-28.
37. The argument that follows draws in part from the
analysis presented in Goldman and Jahnige, supra n. 6,
SHELDON GOLDMAN is a professor of political sci-
at 229-33.
ence at the University of Massachusetts, Amherst.
329
The federal judiciary:
what role politics?
At the mid-year meeting of the American
chat with you." Would you let him stay?
Judicature Society on February 16 in Detroit,
Robert McKay: Of course.
Fred W. Friendly led a panel of 15 lawyers,
Friendly: Then you go into the Lincoln
judges, journalists, public officials and oth-
bedroom and sit before the fireplace and he
ers in an examination of the federal judicial
tells you that he is thinking of retiring. You
selection process. The discussion was in two
say all the appropriate things and he says
parts: the filling of a vacancy on the Supreme
"but I haven't quite decided to do it yet." I
Court and several vacancies at the appellate
haven't told you by the way that he's black-
and district court level.
he's the third black member of the Supreme
Here is an edited transcript of the panel's
Court of the United States, and he says, "I will
dialogue on the selection of a new Supreme
retire on my next birthday, which is in five
Court justice. Although space did not permit
weeks. But, Mr. President, I would like a
publication of the full transcript, every effort
promise from you that you will appoint a
has been made to avoid distorting the partici-
distinguished black jurist to take my place on
pant's views.
the Supreme Court of the United States. This
Fred W. Friendly: Let's make it the year
conversation is just between you and me. Do
1989. The most aged member of the court is 88
we have a deal?"
years old. His name is Oliver Brandeis Vision.
McKay: The answer is I could make no
Judge Vision is everything that a Supreme
such deal. I would certainly take it into con-
Court Justice should be. He's a great patriot.
sideration, but measuring the qualifications
He combines all the values of all the people.
of the individual you have in mind against all
One day Judge Vision is at a reception at
others, I would have to think about that.
the White House and as he's about to leave, he
Friendly: I have no individual in mind. I
says to the President of the United States, Mr.
just want a promise from you that there will
McKay, "Mr. President, could Bessie and I
be a black seat. There's been one since the days
stay for a few minutes afterward, we'd like to
of Lyndon Johnson who appointed Thur-
330 Judicature Volume 68, Numbers 9-10 April-May, 1985
retires.
Friendly: You write the President. What
does he do? Is he the first one to see it?
Benjamin Civiletti: It depends. Of course
the letter is the formal act but sometimes I
understand messages have been sent or car-
ried in such a scenario as you proposed to
alert the President or Attorney General that
there is a potential or an expectation of
retirement within a certain period of time.
The first thing I think the President does, if
there has been no preadvice, is to call the
Fred W.
Attorney General and probably the White
Friendly
House counsel and have a meeting about the
process of selecting an alternative.
good Marshall. I want a promise from you
Friendly: You've got a letter delivered by
that there will be a black member of the
hand, and it's sent to the President of the
Supreme Court.
United States and it says, "As of the first of
McKay: I would be very sensitive to the
January I wish to announce my retirement. I
need to have black representation on the
hope you will remember our conversation
Court.
about appointing a black to the Court; it's
Friendly: Are you saying the answer is yes?
very important that we have this representa-
McKay: No sir. Not a guarantee.
tion in our day and age." You call in your
Attorney General and your Deputy Attorney
Friendly: How does a judge retire? Does he
General?
write the President? Does he write to Mr. Civi-
McKay: I would think so.
letti? Does he write to Mr. Schmults? What's
Friendly: What do you say to them?
the process?
McKay: I say, "We now have, as you per-
Charles W. Joiner: My understanding is he
haps are already aware, a potential vacancy
writes a letter to the President saying that he
on the Court. This is one of the most impor-
tant appointments that a President can make
and so I want you to make an immediate
The participants on the panel
investigation of all those who have been
Moderator: Fred W. Friendly, Edward R. Murrow Pro-
recommended."
fessor Emeritus, Columbia University Graduate
School of Journalism. Participants: William J. Bauer,
Friendly: Well nobody has recommended
Judge. U.S. Court of Appeals for the Seventh Circuit;
anybody, have they, because there's no va-
Benjamin R. Civiletti, Former U.S. Attorney General;
Charles Halpern, Dean, CUNY-Queens School of
cancy? Do people go along all the time mak-
Law; Charles W. Joiner, Judge, U.S. District Court for
ing recommendations in limbo?
the Eastern District of Michigan; Elaine R. Jones,
McKay: They do indeed.
NAACP Legal Defense Fund; Wade H. McCree, Jr.,
Friendly: Really?
University of Michigan Law School and former judge.
U.S. Court of Appeals for the Sixth Circuit; Robert B.
McKay: There is always a list of candidates
McKay, President, Association of the Bar of the City of
for the Supreme Court of the United States.
New York, and former dean, N.Y.U. School of Law;
Robert D. Raven, Former Chairman, ABA Standing
Friendly: All right. So how does this con-
Committee on the Federal Judiciary; Jonathan E.
versation conclude? "Go get me the best
Rose, Former Assistant Attorney General, Office of
person?"
Legal Policy. U.S. Department of Justice: Maurice
Rosenberg, Columbia University Law School: Edward
McKay: Not necessarily the best person, but
C. Schmults, Former U.S. Deputy Attorney General;
get the recommendations that come from
Elliot E. Siotnick, Professor of Political Science, Ohio
responsible sources from around the country
State University; Augustine T. Smythe, Esquire, South
Carolina; Joseph Tybor, Chicago Tribune: Stephen
and look at them and begin screening them
Wermell, Wall Street Journal.
through the American Bar Association. When
you have a narrower list, come back to me.
331
Friendly: What do you mean the American
Friendly: How should it be started?
Bar Association? They have a big prior res-
Rosenberg: I think that in this conversa-
traint on this?
tion the President is having with the Attorney
McKay: The ABA helps in the screening by
General and others they would talk about
making an investigation throughout the
some other things besides who.
country.
Friendly: Like what?
Friendly: This early? Mr. Raven you're an
Rosenberg: What sort of person do we
expert on this. Is that the way it works?
want?
Robert Raven: Well, the last time two
Friendly: What kind of person do we want?
names were sent to the committee.
Rosenberg: What term is the President in-
Friendly: By the American Bar Association?
first or second?
Raven: No, by the President through the
Friendly: He's just begun. This is his first
Attorney General.
term.
Friendly: But does the Bar Association send
Rosenberg: He's just begun; in 1989 he's in
in names.
his first term. The appointment of a person of
Raven: No. The Standing Committee of
one gender or one racial background or
the ABA has never sponsored anyone. In fact,
another would reflect upon his political
the few times it's been asked to, it made it very
chances.
clear that that's not its function. It's not in the
Friendly: Did you notice that the President
selection process at all. It's merely in the eval-
did not mention anything about the conver-
uation process for the Attorney General.
sation with the Justice about appointing a
Friendly: Professor Slotnick, would it ever
black? Did you think that was a purposeful
be proper for the head of the ABA to write a
omission by President McKay?
personal letter to the President and say, "In
Rosenberg: Well I think that the President
considering candidates for this vacancy, why
was going directly to the who question and
don't you think of so and so."
not the what. I'd start with a question of what
Elliot Slotnick: I don't think it would be
kind of person are we looking for.
proper and I'm sure the ABA Committee
I do think that the question of what the
would never try to do it because it would
Court looks like when the pictures of the nine
really alter their institutional role in the
justices appear is a very important symbolic
process.
question.
Friendly: So they're more of a screening
Friendly: There's no black on the Court
device to look at people after the event.
once Judge Vision retires. Is that important?
Slotnick: Right.
Rosenberg: I think so.
Friendly: Do you agree with that Dean
Friendly: Why? One hundred and fifty
Halpern?
years after Dred Scott we still have to have a
Charles Halpern: It seems to me the Presi-
black seat?
dent of the ABA-who is not part of the
Rosenberg: I don't say that we have to have
screening process-could quite appropriately
a black seat. What we have to do is think of the
send in suggestions to the President.
implications of having a very well qualified
Friendly: Do you agree with that Professor
-perhaps as well qualified as anybody else
Rosenberg?
who could be found-person who's black sit-
Maurice Rosenberg: I guess he could. It's a
ting on the Court instead of someone else.
free country and the First Amendment ap-
plies to him, but I think he'd be ill-advised to
Wade H. McCree, Jr.: May I interject at this
do it.
point. I think that we're moving too rapidly
Friendly: Why would he be ill-advised?
in the process. What the President should do
Rosenberg: It seems to me that there are so
if the letter of resignation indicates a date of
many other sources of information and I'm
resignation is go public with the letter. The
not sure that we have yet quite gotten the
fact that he has written a letter indicating his
process started the way it should be started.
intention to take senior status or retired status
332 Judicature Volume 68, Numbers 9-10 April-May, 1985
January 1st would lock the vacancy in. Some
ally consulted until after the appointment?
great problems could result from a President
Schmults: I would say that was right-the
getting a letter like this. I submit my retire-
ones I'm aware of. I think what is far more
ment effective upon the appointment and
likely is the Chief Justice would come and
qualification of my successor. Now you're in
talk to you.
trouble because the Justice then can control
Joiner: I don't think the Chief Justice
that process. If he doesn't like the name that
should go to the President unless he's asked. I
comes up, he can produce mischief.
think the President has the power and he
Friendly: How does he do that?
should initiate all of the inquiries that he
McCree: Well he can indicate that he had an
thinks are appropriate.
understanding with the President and that
Rosenberg: It seems to me that some preli-
this was not in fulfillment of it. But if the
minary decision might have been made by the
letter said January 1st, I think he goes public
President and his close advisors as to who
with that to lock in the retirement and then he
they want to take into consideration. If they
proceeds into the nomination process.
want to take into consideration judges of the
Friendly: All right. Thanks for the advice.
courts of appeals, for example, then they
I'm going to pull the curtain on this little
might want to find out who knows them and
epilogue just for a moment and I'm going to
the Chief Justice might be a likely source.
move along to the fact that the team of Civi-
Friendly: Is there anything wrong with the
letti, Schmults, Rose, Rosenberg have come
Chief Justice going over and saying, "Mr.
up with three names. They've talked to all the
President, I have watched all these judges. We
people, all the bar associations. They've
go to these circuit meetings. I know them
looked at all the letters, they talked to the
better than anybody in the country. I have
Chairman of the Judiciary Committee, Sena-
three names I want to give you and I'd like to
tor Smythe did they talk to the Chief Jus-
see you tomorrow at a time convenient with
tice by the way? Is that permissible, Mr.
you or any time in the next week or so."
Civiletti?
Anything wrong with that Mr. McKay?
Civiletti: Permissible, but not necessarily
McKay: I think it's absolutely proper. If the
advisable.
American Bar Association and the Attorney
Friendly: Why is it not advisable? Who
General and the Senate and everybody around
would know better?
the country is going to advise the President,
Civiletti: Because he doesn't have a role in
why not the Chief Justice. That's my view.
the appointment process ordinarily, and if
Elaine R. Jones: I would really disagree
you're inviting him in then he will take the
with the notion that as a matter of course the
opportunity to exercise his judgment.
Chief Justice, or any other sitting justice on
Friendly: He doesn't have First Amend-
the Supreme Court, should inform the Presi-
ment rights?
dent as to his or her choices for that Court
Civiletti: You'll have enough problems
without having first been asked.
dealing with the Chairman of the Senate
Friendly: Why?
Judiciary Committee, the majority leader of
Jones: I think when the Chief Justice and
the House, and other congressional leaders
justices of the Supreme Court interject them-
that I don't think you will want to get the
selves into the nomination process whether
Chief Justice involved in the selection process.
it's at the court of appeals level, the district
Friendly: You're not suggesting that in the
court level, or the Supreme Court level, you
last eight or nine appointments to the Su-
have an institutional problem. The President
preme Court Chief Justices haven't been con-
knows well that the Chief Justice is the Chief
sulted and listened 10?
Justice, and knows the workings and opera-
Civiletti: Yes, but that's after the selection
tions of the Court, and if he wants that advice,
generally.
he knows where to get it.
Friendly: Is it true Attorney General
Friendly: So it's up to the President.
Schmults that the Chief Justice is not gener-
Jones: I think so.
333
Friendly: Allright: Interesting difference of
how you see the role of courts in our govern-
opinion. Curtains down on that.
mental system.
We've got three names agreed to by our
Friendly: I see it as it is said in the Constitu-
committee. Mr. President, here are three
tion. We are a court of appeal, we've decided
names. The first is a male court of appeals
ever since 1801 (Marbury v. Madison) that we
judge from X circuit-been on the circuit for
will be the referee with the striped shirt, we
12 years, written a lot of great opinions, all
will make these decisions. I believe in judicial
the right material and everything else-
review but I'm not an activist judge. I'm your
couldn't go wrong with him. We have a black
kind of judge Mr. President, the kind you
male. He was a state trial judge in criminal
spoke about when you accepted the nomina-
courts in a big metropolitan city like Chi-
tion. Any other questions?
cago, New York, St. Louis, Los Angeles, was
Schmults: No. It sounds like we know what
appointed to fill a vacancy to the Senate, and
your judicial philosophy is.
a year and a half later was elected. So he is a
Friendly: What else do you want to know?
Senator, former state judge, on the Judiciary
Anything you want to know about any big
Committee-very well thought of, member of
cases coming up?
the right political party, and has a judicial
Schmults: No, I wouldn't want to know
mind. He is black. He's a close friend of Judge
about any big cases.
Vision. Third is a woman-white. Was the
Friendly: But you know in the platform
dean of a law school in the sun belt and is now
they said, "that on gun control and abortion
a member of the court of appeals.
we will appoint no one to the Supreme Court
So we have three people. White female,
who does not believe as our party believes."
white male, black male. I want you to be my
Aren't you going to honor your party's com-
committee. You're changing roles, now.
mitment to that?
You're going to be my advisors. I'm the Presi-
Schmults: No, I think what you do is
dent. I may ask one or two of you to be Presi-
determine whether the people on your list
dent before we're through. Who do you vote
have the same view of the role of the courts in
for Ms. Jones?
our system as the President and I do not think
Jones: Well the bottom line is that all of
you would ask them how they would decide
these people are qualified. And I assume the
specific cases. That would be demeaning to
court consists of eight white males.
the candidates and to the President.
Friendly: It's seven white males, Ms. O'Con-
Friendly: Well why don't you try a candi-
nor, and a vacancy.
date? Why don't you ask Judge Bauer how he
Jones: There's no black on the court and we
feels about abortion laws. That's what the
do have an interest in diversity of judgment.
party said. You ran on that platform. Don't
My vote is for the black.
you believe in it?
Schmults: I'd like to know which candidate
Schmults: I do believe in the platform-
is closest to the President in political and
that's what I ran on. Presumably that's my
judicial philosophy.
platform but I don't have to apply it specifi-
Friendly: How are you gonna find that out?
cally in this way by asking judicial candidates
You're going to invite these three people for a
questions how they would decide specific
meeting?
cases. I think I should determine whether the
Schmults: Actually, you would have done a
person I'm going to appoint has my general
lot of other things before this. You would
outlook about the role of the courts, judicial/
have read all the decisions.
political philosophy, view of the nation; but
Friendly: You've done all that and they're
as to how you would decide a specific case, I
all pretty much your kind of person. I'll be the
really think that would be inappropriate. I
white male. There we are, we're having a
would not ask the candidate that. First of all
drink together at 5:00 in the afternoon. What
the facts and circumstances are changed at the
do you want to know?
time the case comes up.
Schmults: I would like to discuss with you
Friendly: You remember that Roe U. Wade
334 Judicature Volume 68, Numbers 9-10 April-May, 1985
case back in 1972 or 73, if that were tried
them.
tomorrow, same set of facts except we know a
Friendly: Come on, answer the question
lot more about medical science now and we
judge.
can preserve a life from the second week on-
Bauer: I've just answered the question. I do
wouldn't you ask Judge Bauer/Judge Joiner
not think that courts should seek out solu-
how they'd feel about that case if it were
tions for problems that have not been brought
argued tomorrow?
to their attention, but I don't think they can
Schmults: Well I think that is a good point.
avoid problems that are forced upon them.
I think you might well ask them about a case
Friendly: Do you have a better way to
like Roe U. Wade that perhaps, in the discus-
answer the question, Mr. Civiletti?
sion of that case, would bring out the candi-
Civiletti: I wouldn't be asking those ques-
dates' view of the courts and the Court's role
tions in the first place. I'd be looking for
in applying the law.
intellectual capacity first and exploring
Friendly: Why don't you ask Judge Bauer?
that and making a very close analysis of the
Schmults: I'd be interested in your analysis
opinions. Beyond capacity, the ability to be
of Roe U. Wade. Do you think that the way that
creative in the law-to understand and apply
case was decided, and the principles that were
the law.
enunciated was consistent with your views as
Friendly: But you're using all kinds of
to what the courts ought to be doing in our
fancy words to duck the issue.
system of government?
Civiletti: No, no, no. Third, I'd want to
Bauer: I'm not in the position at the
look for fairness among these three last can-
moment, Mr. President, to totally criticize the
didates. I think those three qualities make a
opinion. On the other hand there have been a
great Chief Justice or a great justice, and from
lot of changes in facts, additional things that
my point of view as Attorney General, not as a
must be brought to the attention of the Court
President who has said I'm not going to have
or could be brought to the attention of the
anybody on the Court who's going to decide
Court, and I'd certainly be willing to give it a
things contrary to my political philosophy.
second look in view of new knowledge.
You can't control a justice anyway once
Schmults: I'm really not asking you about
they're on the Court. There's been a lot of
an abortion decision as such.
disappointments between what the President
Bauer: You're asking about Roe U. Wade?
thought he was getting when he appointed a
Schmults: Yes, I was asking about Roe U.
justice and what he actually got.
Wade but I'm not really asking you about
what you think about abortion. Really what
Friendly: We're back to our three candi-
I'm trying to get at is your view as to whether
dates. Who are you going to be for Mr.
the courts ought to pay considerable defer-
Slotnick?
ence to Congress and the legislatures or
Slotnick: I think there was something you
should courts be looking for ways to reach out
said in the hypothetical that made it even
by deciding questions that are very controver-
more apparent that the black judge makes
sial in our society.
sense, and that was that he was on the Senate
Bauer: Mr. President, the courts are fre-
Judiciary Committee and was in the majority.
quently forced into deciding controversial
He would just sail through the Senate.
questions present in our society because of an
Friendly: Is that a consideration?
absence of action by either the Congress or the
Slotnick: Oh, I think it should be for a
executive branch of government.
President.
Schmults: So it's your view that courts
Friendly: You mean the President of the
should step into vacuums where the likely
United States under Article II selects judges
accountable branches don't act.
and under Section III for life, and he is going
Bauer: Mr. President. you and I both know
to do it on the basis of how quickly they're
that the Court never steps into a vacuum. The
going to be confirmed.
vacuum is brought to them and thrust upon
Slotnick: Not on the basis of that, but
335
you're saying they're all good.
Friendly: If you push me to the limit, it's
Friendly: But that's why you're going to do
the white male. He is the carbon copy of the
it-because he's on that committee?
President of the United States.
Slotnick: I think having the black candi-
McKay: Then I think the President-and I
date when you have no black members of the
don't necessarily speak as myself-I think the
Court combined with the fact that this is an
President would probably choose the white
individual who is on the Judiciary Commit-
male as the one who would be most reliable.
tee in the majority means everything is com-
Friendly: And you're going to not have a
ing up right for this particular person.
black on the Court for the first time since
Friendly: He's the perfect candidate polit-
1963?
ically.
McKay: The one who will most likely
McCree: I think I'd go with the black male.
espouse the views that I think are appropriate
I understand that he is a member of the Senate
for the courts is the one that I would choose.
of the United States and he's on the Judiciary
Friendly: But it's a political decision you're
Committee. As President I can only appoint
making.
someone by and with the advice and consent
McKay: Of course. It's a political situation.
of the Senate. And here I have someone com-
Friendly: You're willing to admit it. I've
ing from the Senate who's going to have an
heard all the stuff about substance, point of
easier path through it. Plus another point.
view; you want somebody who agrees with
Abner Mikva, who used to sit in the Congress
you on Roe v. Wade.
and is now a judge of the Court of Appeals for
McKay: Very closely. Very closely. I don't
the District of Columbia, has written recently
think we should have a black seat, or a
about the absence of someone on the Court
Catholic seat, or a Jewish seat, or a female
who has knowledge of the legislative process.
seat. We might want more than one of each of
Much of the Court's business today, most of it,
those at various times.
is interpreting statutes. It's not the Constitu-
Friendly: We're going to get the Court up to
tion, it's not the common law, it's congres-
50 members.
sional statutes.
Bauer: I think that the reason that the coun-
Friendly: You want a legislator because
try follows what the Supreme Court says, and
that's what the Supreme Court does is legis-
remember the Supreme Court has no militia,
late?
no troops or anything like that, is because we
McCree: No, I didn't say that. What the
accept the Supreme Court. If we don't ap-
Supreme Court does is interpret statutes.
point that black male to replace the black
Friendly: Which is another way of saying it
male, we're going to bring to a large segment
legislates.
of the population an idea, true or false, that
McCree: If you prefer it. But I prefer to say
they have been disenfranchised somehow, and
that they interpret statutes. There hasn't been
cheated, and I would not perpetrate that upon
anyone since Hugo Black with any legislative
the American public. I would, therefore, vote
experience. If we talk about the Court as
for the black male. But I would tell him why I
being representative of the country, here you
was doing it.
gel a black male who is also a legislator.
Schmults: One of the things I'd like to do is
Friendly: Who are you going to put on the
know the context. How many more appoint-
Court, Dean McKay?
ments am I going to have?
McKay: Well if everything is truly equal, I
Friendly: Who knows? How many did
would put the black male on, but you haven't
President Carter have to the Supreme Court?
adequately put in one of the factors that I
Zip! How many has President Reagan had?
think the President would take into account.
One. So one never knows, does one. Who are
Friendly: What's that?
you going to vote for?
McKay: Which of the candidates most
Schmults: I'm voting for the black male.
closely adheres to the views that the President
personally espouses for the Court.
Friendly: Thank you all very much.
336 Judicature Volume 68, Numbers 9-10 April-May, 1985
THE WHITE HOUSE
WASHINGTON
June 24, 1985
MEMORANDUM FOR DANIEL J. ENGLER
STAFF ASSISTANT
OFFICE OF WHITE HOUSE CORRESPONDENCE
FROM:
JOHN G. ROBERTS 022
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Letters to Judge Fred Wicker
and Judge Samuel Rosenstein
Counsel's Office has reviewed the above-referenced proposed
letters to judges, and finds no objection to them from a
legal perspective. Thank you for submitting them for our
clearance.
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WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
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and Judge Samuel Rosenstein
Profrosed letters to Judge Fred Weeker
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5/81
THE WHITE HOUSE
WASHINGTON
June 18, 1985
Memo for: Dianna Holland
From: Dan Engler
Office of Correspondence
x7610, Rm. 96
Re: Dated material for clearance
by your office
Here are copies of two Presidential
replies to judges, dated June 18,
which we would like to send by COB
June 20.
We thought we could save your office
the trouble of composing a memo of
reply if we could just mail the replies
by COB Thursday unless your office
has any objections.
Thank you,
Dan
Dan Engler
COPY
THE WHITE HOUSE
WASHINGTON
June 18, 1985
Dear Judge Wicker:
Thank you very much for your kind message. I am
most grateful for your generous words. They mean
a great deal to me, especially in view of your own
wartime experience.
It seems to me we achieved something most unusual
forty years ago. Back through history, wars were
settled in such a way they planted the seeds for
the next war. The hatreds and rivalries remained.
Not this time. Here it is four decades later and
our erstwhile enemies are our staunchest friends
and allies.
Again, my thanks to you and very best wishes.
Sincerely,
The Honorable Fred Wicker
Circuit Judge
Circuit Court
Pontotoc, Mississippi 38863
304758
COUNTIES:
FRED WICKER
CIRCUIT JUDGE
ALCORN
PONTOTOC, MISSISSIPPI 38863
ITAWAMBA
LEE
MONROE
PONTOTOC
CIRCUIT COURT
PRENTISS
LAD
TISHOMINGO
FIRST DISTRICT OF MISSISSIPPI
May 17, 1985
Honorable Ronald Reagan
President of the United States
The White House
Washington, D. C. 20515
COBY
Dear Mr. President:
Having made your visit to the cemetery at Bitburg Germany, you
are probably interested in how the general public feels about the
matter.
As one who was barely 20 years old when I landed in Normandy and
returned to New York City on December 25, 1945, my personal feelings
are that it was a very fine act on your part and one that needed to
be done. When a nation has been defeated, why should the victor not
be magnanimous? What reasonable product of Judeo-Christian Civilization
could possibly find fault with the placing of a wreath in a cemetery
filled with the war dead of the erstwhile foe. This would be part-
icularly true as to West Germany, now our staunchest ally.
I have not been out of Mississippi since the news media started
the furor but have been in several areas of this state. This brought
me into contact with a fair cross section of the population and, frankly,
the subject was never mentioned until I brought it up out of curiosity
about the general attitude and reaction. Invariably the attitude of
the others present was the same as mine.
Yours was a noble gesture and when the voices of the small souled
critics have died away you will be vindicated in the minds of people
of good will everywhere and hailed for it when the history of this
time is finally written.
When the Senate and House of Representatives, frightened and
excited by the press, were requesting that you change your plans, I
was fearful that you would do SO. I realize now that I was doing you
a disservice in harboring such doubts. "What went ye out into the
wilderness for to see? A reed shaken in the wind?" Matthew 11:7
Congratulations for doing the right thing.
Sincerely,
Fredwicker
copy
THE WHITE HOUSE
WASHINGTON
June 18, 1985
Dear Judge Rosenstein:
Please accept my heartfelt thanks for your message
of May 7. I appreciate more than I can say your
kind and generous words.
My purpose was never to suggest we forgive
and forget, and I found that today's Germans do
not suggest such a thing. They have preserved
the camps with evidence of all the horror of the
Holocaust, and they say along with us, "Never
again."
You were kind to write as you did and your
message means a great deal to me.
Sincerely,
The Honorable Samuel M. Rosenstein
Senior Judge
United States Court
of International Trade
Suite 403, Federal Building
299 East Broward Boulevard
Fort Lauderdale, Florida 33301
# 30 4295
UNITED STATES COURT OF INTERNATIONAL TRADE
FEDERAL BUILDING-U.S. COURTHOUSE
a.kmigon
SUITE 403
299 EAST BROWARD BLVD.
FORT LAUDERDALE, FLORIDA 33301
CHAMBERS OF
SAMUEL M. ROSENSTEIN
Personal - Not Official
SENIOR JUDGE
May 7, 1985
Honorable Ronald Reagan
President of the United States
The White House
Washington, D.C.
COBY
Dear Mr. President:
I strongly feel that the continued criticism of your May 5 visit
to the Bitburg cemetery is unfair and unjust.
From what I have read and heard, when the invitation was extended
you symbolized. had no way of knowing who was buried in that cemetery and what it
As a man of integrity you felt that having accepted the invitation,
the good relationship you had established with Germany would be
adversely affected if you cancelled the appointment.
I have no doubt that had you been advised of the entire situation
in advance, you unquestionably would not have accepted the invitation.
You did all that you reasonably could under the circumstances and your
address at the airport was a masterpiece.
As usual, Mrs. Reagan proved herself to be a most worthy helpmate
both in Germany and Italy. Both of you continue to enjoy the respect,
confidence, and admiration of thinking, fair-minded people.
Definitely, if you are able to accomplish a reconciliation with
Russia and retain the support of Germany, you will have given a
had. legacy to future generations of Americans which they have never before
With expressions of my respect and high regard for your and
Mrs. Reagan
Cordially,
Samuel M. Receartion
Samuel M. Rosenstein
SMR/11
Senior Judge