High stakes, low courts.

• Author: Mauro, Tony
• Position: Federal judiciary

Forget the Supremes. The real threat to Justice ts the hundreds of conservative appointees to the lower federal courts

In the final desperate hours before California inmate Robert Alton Harris was put to death in April, 10 federal judges tried to have off the executioner. Working separately and in tandem, the judges of the Ninth Circuit U.S. Court of Appeals issued four distinct stays of execution--including one that came after Harris had been strapped into the gas chamber chair at 4 a.m. Each time, the weary justices of the Supreme Court rejected the stay until, at last, the court issued the unprecedented order to the Ninth Circuit to grant no more stays. Harris was executed.

What with the media attention heaped on the Supreme Court as a result of its decision, you'd be forgiven for forgetting that the Brethren were only the last in a long line of state and federal courts to decide that Robert Alton Harris should die. But that fact is worth keeping in mind. For while the Supreme Court serves as a lightning rod for liberal fear and loathing, an examination of the federal courts--and the verdicts and interpretations they hand down-- shows them to be more conservative than the Supreme Court.

That should come, in fact, as no surprise. Twelve years of Bush and Reagan have given us only a handful of conservative Supreme Court justices. But they've given us hundreds of federal court judges, and they're quietly but radically changing the law of the land.

In the Harris case, all but two of the ten judges who sided with Harris were appointed to the court by President Jimmy Carter. These days, when a federal judge bucks the conservative tide, chances are good that the judge is a Carter appointee. Carter judges have declared panhandling an activity protected by the First Amendment and ordered pay equity for males and females in jobs of comparable worth. And in June of this year, when a panel of Sixth Circuit judges ordered a reheating of the case of alleged Nazi executioner John Demjanjuk-- whose identification as Ivan the Terrible is now officially in doubt--again it was the work of Carter appointees.

Even so, decisions like these often turn out to be short-lived victories; many liberal rnlings are eventually overturned as they slowly work their way up through the courts. The rightward shift has, of course, been most visible on the Supreme Court. Our nation's attention-if not its conscience--was aroused by the feisty public battles waged at the confirmation heatings of Robert Bork and Clarence Thomas. And the high court's recent decisions on abortion, employment discrimination, and prisoners' rights, to name a few, have served to highlight the starboard list. But the decisions at the next tier of the judiciary-the circuit courts of appeals--and the tier below that--the district courts--are, ideologically, the Supreme Court again and again. Only worse.

The numbers paint a vivid picture: By the end of this summer, assuming that the Senate confirms a batch of pending judicial nominations, Reagan-Bush appointees will comprise a majority of the justices on all 12 federal circuit courts of appeals. It's the most complete makeover of the federal courts since FDR. Combined, Reagan and Bush have filled 534 of the 837 federal judgeships nationwide, and if Bush is reelected, by the end of his second term it's likely that 90 percent of the federal judiciary will have Bush or Reagan to thank for its job. But even without four more years of Bush, the future has been largely set: The altered landscape of the lower federal courts may constitute the conservatives' longest legacy and best revenge on the Democrats who control Congress and who may ultimately regain the White House.

Of course, the numbers are just the beginning. Lower court decisions that have piled up in recent years in areas from free speech to police brutality have often gone far beyond where the Supreme Court would dare to tread. If, as seems likely, 1992 turns out to be a record year for executions, the federal courts will in large measure be responsible.

The simple fact is that most legal issues never find their way to the Supreme Court, which means that the lower courts often have the final say. And when Congress acts to undo Supreme...