Judicial winds to blow from right or moderate direction?
The conservative winds that have stormed through Congress and the White House can be expected to blow into the nation's courtrooms, but at a much slower rate, when President Ronald Reagan takes office.
A jubilant attorney for the conservative Washington Legal Foundation, Daniel J. Popeo, predicted this week that Mr. Reagan would appoint judges who are sympathetic to free-enterprise and fewer regulations on business.
"[President] Carter used racial, sexual, and ethnic criteria that are totally unrelated to professional competence" when picking federal judges, said Mr. Popeo. "I would say that President Reagan is going to focus his attention on ability and personal character."
As president, Reagan will be in an even stronger position to change the courts since the Republicans have gained the majority in the Senate. Where once the liberal Sen. Edward M. Kennedy (D) of Massachusetts presided, conservative Republican Strom thurmond of South Carolina will be the chairman of the Senate Judiciary Committee that oversees judicial appointments.
The one fact that brings complaints from Reagan supporters and sighs of relief from liberals is that Reagan will not be able to appoint as many judges as President Carter.
In his four years, Carter was denied the opportunity to make a Supreme Court appointment, but he filled more lower court benches than perhaps any president in history. A federal law passed in 1978 created 152 new federal judgeships, so that to date Carter has appointed 264, or 40 percent of a total 678 federal judges.
Carter took the opportunity to recast the virtually all-white, male federal bench by picking 38 blacks, 41 women, and 16 Hispanics. According to Popeo, he also filled the federal benches with left-leaning judicial activists.
Republican Orrin G. Hatch of Utah, a member of the Senate Judiciary Committee , has said that Carter will leave "an indelible imprint upon the judicial branch that will be deeply felt until well into the next century."
Reagan will probably have as many as 75 district and circuit court judgeships to appoint during his first year, including 20 new appointments that have already been designated but will undoubtedly be held until the new President takes office.
A bigger question mark hangs over the US Supreme Court, where five of the nine members are over the normal retirement age of 70. Although some justices have stayed on well into their 80s, a change of one or two members could change the whole nature of the court.
Legal scholars, liberals, and the American Bar Association have registered concern about the 1980 Republican Party platform that calls for appointing judges "who respect traditional family values and the sanctity of innocent human life." These critics have charged that the Republicans might ask candidates for judges to pass a litmus test on abortion.
Now that the voting is over, Reagan critics are trying to look at the bright side. "I hope some of my misgivings will be wrong," said Harvard constitutional law Prof. Laurence H. Tribe. "Given the size of his mandate, my hope is that he'll treat it as a basis not for pleasing the more extreme [elements] but to be a responsible moderate."
Jack Greenberg, head of the NAACP's Legal Defense and Education Fund and an outspoken Reagan critic, said this week that the "atmospheric pressure" will cause the courts to "drift toward a conservative philosophy."
But Mr. Greenberg added that if Reagan tries to turn back the clock dramatically on social reforms, many people who voted for him might object.
Judith Lichtman, executive director of the Women's Legal Defense Fund, said she is taking a "wait and see" approach on the new President."He has made commitments to equality of opportunity," she said, pointing to Reagan's promise to put a woman on the Supreme Court. "I would expect that he meant what he said ," she said.
Ms. Lichtman said that 45,000 women now are practicing law in the US. "I would expect that the enormous growth of appointments of women is not something that President Reagan or any other President is going to easily back down on," she said.