The advertisement begins: "Imagine if the Far Right had veto power over America's judges. They do." This salvo, from the liberal activist group People for the American Way, is aimed at President Reagan and his intensifying drive to create a staunchly conservative federal bench for America to remember him by. Liberals have good reason for concern. To date the Senate has approved 223 of Reagan's meticulously screened appointees, or roughly 29% of federal judges. By the end of his tenure he may top the 50% mark, not a surprising rate for a two-term President. But because of an expanded judiciary, he might make the most appointments ever, thus reshaping the federal bench--including perhaps the Supreme Court--substantially in his own ideological image.
"I intend to go right on appointing highly qualified individuals [who will not be guilty of] disenfranchising the people through judicial activism," exulted the President in a speech to federal prosecutors in Washington last week. To end years of what he called "political action or social experimentation" from the bench, Reagan favors judges who follow the so-called doctrine of original intent, under which courts avoid rulings not clearly envisioned by the framers of the Constitution. In recent weeks Attorney General Edwin Meese has put signposts on these principles by attacking some pivotal Supreme Court decisions, including the Miranda ruling that police must inform suspects of their rights before questioning. "Miranda only helps guilty defendants," Meese told U.S. News & World Report.
To Administration opponents, that kind of judicial restraint sounds like an attack on three decades of decisions expanding basic rights. Liberal Justice William Brennan was sufficiently troubled to make a rare off-the-bench speech on the subject. "We current Justices read the Constitution in the only way that we can: as 20th century Americans," Brennan unrepentantly told a Georgetown University audience three weeks ago. It is "little more than arrogance" to believe that anyone can "gauge accurately the intent of the framers." Last week Moderate Justice John Paul Stevens weighed in with remarks to a group of Chicago lawyers, attacking elements of the Meese-Reagan "original intent" vision because it "overlooks the importance of subsequent events in the development of our law." Even Conservative Justice William Rehnquist spoke out last week, though more cryptically, when he criticized Franklin Roosevelt for his "quite unnecessary" zeal in trying to pack the Supreme Court with supporters.
Whatever modern relevance Rehnquist may have been suggesting, other critics charge that the Reaganauts, having failed to get Congress to enact the conservatives' social agenda, are seeking to build a court lineup that will do the job, just as liberals did in earlier years when they found Congress resistant to their goals. "If the Reagan counterrevolution is to be successful," says Ralph Neas, executive director of the Leadership Conference on Civil Rights, "it must be done in the judiciary. That's their highest priority for the next three years."