May 11/12, 2008
WASHINGTON — They became the first judges in more than a half-century to say the Second Amendment protects an individual's right to own guns. They took the lead in ruling against affirmative action and other race-conscious policies. And they upheld bans on an abortion procedure called "partial birth" before it reached the Supreme Court.
They are prominent appeals court judges appointed by President Reagan in the 1980s — the products of an unprecedented, meticulous and often controversial screening process that transformed the politics of judicial nominations.
Named to an influential set of 13 regional courts, they were, as a group, young, brainy and bold. They became the legal vanguard of the Reagan agenda to lessen federal control — and protections — in American life.
Now, nearly 20 years after Reagan left office, many of them are at the height of their power. Their opinions routinely draw national attention. Eight are the chief judges of their circuit courts and in key positions on the U.S. judiciary's policymaking committee. Many are superstars of the conservative movement, appearing as speakers at meetings of the arch-conservative Federalist Society and, in past years, landing on GOP presidents' short lists for Supreme Court appointments.
Their influence is a testament to Reagan's promise to set a new course for the nation's law — a promise reverberating in the presidential race today. His lawyers sought nominees who would not try to solve society's problems and who would reverse the trend of judicial involvement in school integration, prison problems and the environment.
Reagan's enduring legacy shows the power a president has in shaping the law — not just at the Supreme Court, which gets so much attention, but also in the midlevel appeals courts. Republican John McCain has pledged to appoint judges on the right, as Reagan did. Democrats Barack Obama and Hillary Rodham Clinton would try to reverse Reagan's legacy.
William Taylor, chairman of the Washington-based Citizens' Commission on Civil Rights, says Reagan's judges were "out front, ahead of what became an increasingly conservative Supreme Court." Taylor, whose group monitors federal programs affecting voting, housing and affirmative action, was an early advocate on the left to complain that Reagan was "packing the courts" with judges who would undermine individual liberties.
Washington lawyer Charles Cooper, who helped in judicial selections during Reagan's two terms, says the Reagan judges' "influence now is born of 20 years … of intellectual, analytical work" and adds: "I can't imagine that there is a historic parallel for an effort like this playing out as well."
Many Reagan nominees were law professors, such as Frank Easterbrook, Richard Posner and J. Harvie Wilkinson,or GOP insiders, including Edith Jones, Alex Kozinski and Laurence Silberman. The impact of their appointments is evident throughout the law and on the high court's docket:
•A case before the Supreme Court that will determine the Second Amendment's scopearose after Silberman, of the U.S. Court of Appeals for the District of Columbia Circuit, wrote that it gives individuals the right to bear arms. Silberman's opinion bucked a series of lower-court rulings that said the Second Amendment applied only to a collective right of state militias.
•A dispute involving a black employee who sued the Cracker Barrel restaurant chain for discrimination was taken up by the high court after an attention-getting dissent in the case by Easterbrook, chief judge of the Chicago-based U.S. Court of Appeals for the 7th Circuit.
Lower courts had broadly interpreted a section of the 1866 Civil Rights Act to cover individuals who faced retaliation after claiming discrimination. Easterbrook disagreed and said the 7th Circuit majority, which followed that pattern, was ignoring a "sea change" in the high court's interpretation of the law. Oral arguments in the case suggested the justices may endorse parts of his dissent.
•When the justices recently upheld an Indiana voter-identification law requiring people to show a government-issued photo ID before casting a ballot, they affirmed a 7th Circuit opinion by Posner. The Indiana law "will deter some people from voting," Posner wrote. But he said that does not override Indiana's legitimate concern about potential in-person voter fraud.
High-profile Supreme Court cases such as these generate headlines, yet appeals courts judges have the last word in the vast majority of disputes in federal courts. The justices hear fewer than 1% of appeals, and have taken even fewer in recent years: about 75 per annual term, down from about 150 during the mid-1980s.
Although bound by high-court precedent, appeals judges have latitude in their interpretations. The decline in cases has bolstered the impact of appeals court judges — including the Reagan class.
Remaking the appeals courts
Reagan's influence on the appeals courts surpasses his successors'in terms of sheer numbers.
From 1981-89, he appointed 83 appeals court judges — 66 of whom still hear cases today. The first President Bush appointed 42 during his single term. During two terms, President Clinton appointed 66, and President George W. Bush has appointed 58.
Within Reagan's group of appointees, there also are more judges with prominent profiles. Among them is Antonin Scalia, an fiery conservative whom Reagan put on the appeals court in Washington, D.C., in 1982 and elevated to the high court in 1986.
Yet Reagan's broader judicial juggernaut was not an unqualified success. In 1987, the Senate rejected one of his most celebrated appeals court appointees: Robert Bork, who joined the D.C. Circuit six years earlier. His nomination fight came to symbolize partisan rancor over judicial appointments.
President George H.W. Bush had two Supreme Court appointments; President George W. Bush also has had two. Each considered several of Reagan's appeals court judges. None was chosen, however — the result of several factors, possibly including the controversial paper trails these men and women had created while on the bench.
The first President Bush interviewed Edith Jones, a 1985 Reagan appointee to the southwestern 5th Circuit, for the seat vacated when liberal Justice William Brennan retired. Jones came under fire from defense lawyers for her blunt criticism of lengthy appeals in death penalty cases. Bush ended up choosing David Souter in 1990, who has disappointed conservatives by usually voting with the high court's more liberal justices.
Reagan broke the prior White House pattern of accepting senators' preferences for appeals court seats and put in place a sophisticated screening of candidates run by Department of Justice and White House lawyers. American University law professor Herman Schwartz, who has written extensively on Reagan's judges, contends that good people were passed over because they were not ideologues.
In the years since Reagan left office, several of his judges have remained on the front lines of the nation's most contentious disputes.
Wilkinson, 63, now on the Mid-Atlantic 4th Circuit, was a member of the selection team in the Reagan Justice Department. "There was a great deal of excitement about it," Wilkinson recalls, and a hope of appointing "those who respected more fully the role of the democratic branches of government and need for judicial restraint."
In 1984, after Wilkinson returned to teaching at the University of Virginia, Reagan nominated him for the appeals court.
On the 4th Circuit, Wilkinson wrote an opinion striking down a Richmond city policy directing 30% of public contracts to minority-run businesses. Two years later, the high court affirmed that decision.
In 2003, Wilkinson wrote a decision in the case of Yaser Esam Hamdi, a U.S. citizen captured in Afghanistan fighting with the Taliban. The Bush administration sought to hold Hamdi without charges or a hearing. Wilkinson approved that. The high court reversed his ruling.
On the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, now-Chief Judge Danny Boggs opposed the University of Michigan's affirmative action plan at the law school. In 2002, he wrote, "Its admissions officers have swapped tailor's sheers for a chain saw."
The Bush administration cited Boggs' dissent as it urged the justices to void Michigan practices. The court by a single vote allowed the law school policy; it rejected an undergraduate race-based program that it found too rigid.
Reagan judges, including Easterbrook, also approved bans on the abortion procedure known by its opponents as "partial birth." The high court in 2000 struck down bans in a case from Nebraska. After Sandra Day O'Connor, the key vote on the case, was succeeded by Samuel Alito in 2006, the court changed course. It upheld a U.S. ban similar to the state prohibitions.
And now what?
President Clinton failed to seriously undercut the Reagan conservatism on the bench. He put a priority on diversity and set records for the percentages of appointees who were women and minorities. Of his appeals court appointments, 50.8% were women or minorities, says Sheldon Goldman, a University of Massachusetts Amherst, political science professor.
Clinton did not choose prominent liberal academics to counter the conservative lightning rods on the federal bench. "President Clinton did not wish to expend major political capital with his court appointments," Goldman says.
President Bush has tried to reinforce Reagan's legacy and tapped young conservative thinkers. Goldman says that has turned into "a major success story for Bush."
Yet Bush's appointees may remain for years in the shadow of Reagan's prominent jurists. Some, including Easterbrook and Kozinski, are still in their 50s. Their impact and Reagan's final legacy will be shaped by what happens next.
Says Eleanor Acheson, an assistant attorney general for Clinton who oversaw judicial selection, "The whole name of the game is who will be the next president."
