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A turn to the right on civil rights

RONALD REAGAN's crusade to reshape the judiciary may prove to be the most significant and long-lasting legacy of his presidency. By appointing hundreds of judges, President Reagan has put a more conservative stamp on the federal courts. Assuming that George Bush will nominate several Supreme Court justices as well as many lower-court judges, the balance could tip decisively in a conservative direction. The courts would then be in a position to alter legal policy on a host of controversial issues in the civil rights area, from affirmative action and abortion to prayer in the schools.

``This is the first time an administration has looked on judgeships not just as symbols but as the instruments of presidential power - which goes well beyond the attempts of FDR and even Nixon to pack the courts,'' says David O'Brien, a legal scholar at the University of Virginia. ``As of 1982 Reagan knew he could not get his social agenda through Congress, so the only way was to concentrate on the courts.''

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Mr. Reagan has nominated three new justices to the Supreme Court and elevated William H. Rehnquist, a Nixon appointee, to be chief justice. He has also picked more than half of the 743 judges in appellate and district courts. Not only are the appointees conservatives who were rigorously screened for their philosophical views. They are also predominantly young, white, upper-middle-class males.

According to data cited by Mr. O'Brien in ``The Reagan Legacy: Promise and Performance,'' Reagan appointed some of the youngest judges in history. Close to half had a net worth of more than $500,000, he says, and 1 in 5 of the district judges was a millionaire when appointed.

Also, O'Brien writes, Reagan appeared to take into account religious background. Whether coincidentally or because of a desire to appoint opponents of abortion, the scholar observes, he set a record in appointing more Roman Catholics to the federal bench than any other president since Franklin Roosevelt.

In terms of ratings of professional qualifications by the American Bar Association, O'Brien says, Reagan's judges on the whole compare favorably with those appointed by earlier administrations. In the case of appellate judges, for instance, Reagan appointed a higher percentage of ``exceptionally well qualified'' and ``qualified'' judges than did President Carter, though a lower percentage of ``well qualified'' judges.

Reagan's objective has been to foster judicial restraint, lay the ground for a potential rollback of ``liberal'' rulings, and promote his social agenda. In these efforts the President has responded to political and social forces in the country, including the religious right, that take strong issue with the direction of the Supreme Court and lower federal courts over the past several decades.

Controversy over civil rights

Within the executive branch, too, the President has pursued his conservative goals, seeking to reshape executive enforcement of civil rights in such areas as minority hiring quotas, school desegregation, and housing discrimination. Early on, the administration created a furor in the civil rights community when it tried to reverse Internal Revenue Service policy of denying tax-exempt status to private schools that discriminate racially (the so-called Bob Jones University case).

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Reagan supporters staunchly defend the administration's record in enforcing antidiscrimination laws. Terry Eastland, former director of public affairs in the Justice Department, says there were more investigations and more successful prosecutions on behalf of minorities and women during the Reagan years than during any other previous period.

But civil rights leaders are highly critical. They point to the fact that the administration sought to delay endorsement of an extension of the Voting Rights Act; opposed many school desegregation remedies, including busing; and greatly weakened the independent Civil Rights Com- mission. Reagan's veto of the Civil Rights Restoration Act (prohibiting federal funding of discrimination against minorities, women, disabled people, and older Americans) also aroused controversy.

``Reagan has compiled the worst civil rights record of any administration in more than half a century,'' says Ralph G. Neas, executive director of the Leadership Conference on Civil Rights. ``He seized every opportunity to weaken civil rights laws and repudiate the enforcement policies of previous Democratic and Republican administrations - in housing, voting, education, employment.''

To the administration's dismay, Congress and the Supreme Court have blocked many of its efforts in the civil rights field. Repudiating Reagan's policies, Democratic and Republican lawmakers defeated the nomination of Robert Bork to the Supreme Court; strengthened and passed the Voting Rights Act; overrode Reagan's veto of the Civil Rights Restoration Act; and adopted legislation strengthening enforcement of the Fair Housing Act.

``Reagan's effort to change the law through Congress or the executive branch resulted in a failure, because his policies were so extreme,'' says Nan Aron, executive director of the liberal Alliance for Justice. ``What has emerged is a very healthy public backing for civil rights.''

For its part, the Supreme Court, exercising judicial independence and tending to be obedient to precedent, has not given the Reagan administration total satisfaction, either. It has shifted to the right only marginally.

``After eight years you have the courts being less adventurous, in taking over schools and prison systems, for instance,'' comments Bruce Fein, a conservative legal scholar. ``But the pendulum is still in a centrist position, because the Supreme Court has not yet given the new conservative signal.''

Tough on crime, soft on social issues

In the criminal-justice area, the court has by and large continued the conservative trend begun even before the Reagan administration. For instance, it has narrowed application of the exclusionary rule, which bans evidence obtained by questionable procedures.

``The Reagan philosophy was largely mirrored in the court's decisions in this area,'' says E. Dick Howard, a law scholar at the University of Virginia.

But in the field of social issues the high court has often rebuffed the Reagan positions, hewing to previous court decisions. In a number of cases it rejected Reagan's view of affirmative action. It turned down the administration's request that it not hear the Bob Jones University case, ruling that racial discrimination in education violates ``widely accepted views of elementary justice'' and that the government may withhold tax benefits when schools discriminate racially. The Supreme Court has also sustained a broad reading of the Voting Rights Act and largely reaffirmed mainstream doctrine on separation of church and state.

``On the whole the court has preserved the civil rights laws as before this administration,'' says Julius L. Chambers, director-counsel of the NAACP Legal Defense and Educational Fund. ``Reagan has not achieved in the law what he set out to achieve.''

As for the lower federal court judges, they appear to be moving but not rushing in a more conservative direction. O'Brien points to retrenchment in some emerging areas of law, such as sexual harassment, gay rights, and nonracial discrimination. ``Still,'' he writes, ``no sweeping judicial counterrevolution emerged in the areas of abortion, affirmation action, criminal justice, or the law of free speech dealing with pornography, libel, fighting words, and the like.''

Court direction uncertain

It is too early, however, to assess the Reagan appointees or to predict the course of the Rehnquist court, from which the lower courts will take their guidance. Many civil rights advocates, criticizing the Reagan administration for feeding the perception that civil rights are on the back burner and for having forced so many battles over issues long ago won, voice concern about the future.

An important issue facing the Supreme Court, for instance, is whether to overturn its landmark decision of 1976 (Runyon v. McCrary) giving black parents the right to use an 1866 civil rights law to sue a private school for denying their children admission on the basis of race. The issue arises in connection with a rehearing of arguments in the case of Patterson v. McLean Credit Union, which also invokes the 1866 act.

The very decision to rehear the case, taken after Reagan appointee Anthony Kennedy joined the court, stirred an outcry from civil rights organizations, former attorneys general, and members of Congress. The court's decision is thus anxiously awaited, although most legal scholars expect the court to stick to precedent.

Meanwhile, Americans will be closely watching Mr. Bush's judicial appointments. ``We're at the point where the next president will be able either to complete the Reagan revolution by moving the court to the right of center - or hold the line,'' says Ms. Aron. ``So we're at a major crossing point.''

Last in a series. Previous articles appeared Nov. 14-17.

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