The Gipper's Constitution.

• Author: POMPER, STEPHEN
• Position: Legacy of Reagan's judicial appointments

Republican judges are rewriting the law of the land

OCTOBER 13, 1999--DAY 6,841 OF the Reagan Revolution. The Supreme Court hears an argument in Kimel v. Florida Board of Regents. Counsel asks the Court to recognize that state employees have the right to sue their employers for violating the Age Discrimination Employment Act. If not, then state employers will be above the law--immune from damages no matter how egregiously they discriminate on the basis of age. Not only that, but states will have a legal basis to argue that this immunity should extend to private suits under other civil rights laws--like the Americans with Disabilities Act and portions of the Civil Rights Act of 1964. But from reports of the argument, you'd never know what's at stake: Chief Justice William Rehnquist yawns openly. Justices Sandra Day O'Connor and Anthony Kennedy stare into space and down at the bench. And the liberal justices offer up a pittance of supportive questions and fall silent as if to acknowledge that it's a lost cause--why bother?

How did we get here? Twenty years ago the Reagan administration had a conservative social agenda and no way to achieve it. A Democratic House of Representatives stood squarely in the way of the White House on issues like abortion, school prayer, and busing. In Pursuit of Justices, a history of the modern Supreme Court appointments process, David Alistair Yalof describes how the administration gave up on Congress and shifted its strategy to redefining the political composition of the federal courts. This was accomplished through careful screening of judicial nominees; Yalof reprints portions of a 1985 Justice Department memo enumerating the ideal attributes of a Supreme Court Justice, including:

* "disposition towards `less government rather than more"'

* "appreciation for the role of the free market in our society"

* "refusal to create new constitutional rights for the individual" and

* "respect for traditional values"

It was a brilliant strategy, with long-lived results. At the end of October, even after seven years of a Democratic administration, and the confirmation of 325 Clinton appointees to the federal bench, Republican-appointed federal judges outnumbered Democrat appointees 614 to 571. That imbalance has not been helped by the fact that it now takes roughly 201 days--compared to 38 days during the Carter administration--to shepherd a candidate through the thoroughly partisan Senate confirmation process. (At the end of October there was a backlog of 42 Clinton nominees awaiting confirmation to the federal judiciary.) A once-tenuous 5-4 conservative majority on the Supreme Court has crystallized into a consistent, reliable voting block. And conservative district court judges (the trial court judges who occupy the lowest rung in the federal court system) and circuit court judges (the appellate judges who occupy the middle level between federal trial courts and the Supreme Court) have developed increasingly aggressive tactics to achieve their ends. The result has been a growing body of conservative law which, because it is championed by lifetime-tenured judges and inscribed in precedents that are difficult (sometimes impossible) for legislatures to overturn, looks to extend the Reagan legacy well into the next century.

The most profound changes made by the Republican bench are embedded in a series of highly technical decisions generally grouped under the heading "federalism"--a term that describes legal theories allowing courts to take powers away from the federal government and give them to states. Taken alone, none of the so-called federalist decisions would have earth-shattering impact. Taken together, they have given Republican judges doctrinal cover for redesigning government, picking off civil rights protections, and weakening other federal legislation. And given the political origins of these judges, it comes as no surprise that they are simultaneously making inroads on a conservative social agenda in areas like abortion rights, campaign finance reform, and environmental regulation.

What's more, by advancing the Reagan revolution in discrete, technical steps, conservative judges have given liberals a difficult target to shoot at. "The opinions always give the impression of being one step short of a truly radical decision," says University of Michigan law professor Ellen Katz, while acknowledging that defeat by 1,000 small blows is nevertheless defeat.

Devolution Now, Devolution Forever

Five years ago, Gareth Cook observed in these pages that the devolution of federal powers to local entities is "the core of the modern Republican agenda." ("Devolution Chic," April 1995). Of course even Republican congressmen are capable of loving federal legislation that serves a conservative agenda. (For example, Republican congressmen have recently supported federal legislation on issues like late term abortions and tort reform.) But when it comes to forms of regulation that Republicans inherently mistrust--industry...