Bush should nudge rightward tilt of courts. But will not devise ideological `litmus test' for federal judges
The march to the judicial right, begun eight years ago by President Reagan, will almost certainly continue under President-elect George Bush. But its cadence may be considerably slower. Constitutional scholars tend to agree that the law-related thrust of the new president will be less ideological than it has been under Mr. Reagan.
Also, the Bush judicial revolution is likely to be low key and committed more to ``professionalism'' than politics in the choosing of justices for the United States Supreme Court and federal courts and in prescribing issues for the Justice Department to advocate.
``The Meese days are over,'' insists judicial scholar Ronald K.L. Collins, referring to the controversial approach of former US Attorney General Edwin Meese III. Mr. Meese pushed hard for the appointment of judges with a conservative agenda, such as opposing abortion and favoring school prayer.
Professor Collins suggests that, as president, Mr. Bush will use his Justice Department to ``send out the message that his administration is supportive of civil rights and tough on crime'' rather than a champion of specific issues.
``There will be no [ideological] litmus test,'' explains David O'Brien, a political scientist at the University of Virginia, ``but Bush will appoint Republican judges.''
Professor O'Brien points out that the new president will likely have the opportunity to tap 150 to 200 judges for seats on the federal courts over the next four years. ``There are 26 openings now, and 30 to 40 more will become available in the next year because of deaths or retirement,'' O'Brien says. Further, an additional 60 federal judgeships may soon be created by Congress because of a burgeoning workload.
During his almost eight years in the White House, Ronald Reagan filled more than 350 vacancies in the lower federal courts in addition to making three appointments to the US Supreme Court and elevating William Rehnquist to chief justice. Virtually all of the Reagan appointees have been political conservatives.
``Even without a profound turnaround in Supreme Court jurisprudence, the Reagan administration's packing of the lower courts will produce many changes in the lives of the American people,'' writes Herman Schwartz, a law professor at American University, in his new book, ``Packing the Courts: The Conservative Campaign to Rewrite the Constitution.''
Collins stresses that ``we're just beginning to see the effects of these Reagan judgeships'' in the federal courts. He says that the Supreme Court is not likely to overturn, or even review, many of the rulings of recent Reagan lower-court appointees, which have, among other things, expanded ``good faith'' exceptions to the exclusionary rule and relaxed Miranda warnings.
(The exclusionary rule disallows the presentation in court of police evidence that has been ``tainted'' by violations of constitutional procedures. The Supreme Court's famous Miranda decision mandated that arresting officers recite a statement of constitutional rights to those suspected of crime.)
On the controversial issue of a woman's right to an abortion, the Justice Department is urging the court to re-examine the findings of the landmark 1973 Roe v. Wade case through a new lawsuit from Missouri. It is not known yet whether the justices will take this case.
Court watchers say that Mr. Bush may have the chance to appoint three or four justices to the court.
Former federal judge Robert Bork says that Bush nominees are likely to be ``mainline conservatives.'' Bork's nomination to the high court by President Reagan last year stirred a national controversy over judicial ideology and was eventually defeated by the US Senate.
Collins believes that the new president will try hard to avoid confrontation with Congress over judicial appointments by nominating moderate-conservatives.
``He'll want to appoint someone who will be remembered,'' Collins says.
O`Brien agrees, but he says that the chief executive will be ``under the gun from the New Right'' to appoint staunch conservatives to the federal bench.
During the recent campaign, candidate Bush said he would not nominate judges who ``would legislate from the bench.'' He particularly criticized judges who broadly interpreted the Constitution to stop the death penalty, allow abortion, and outlaw school prayer.
Those mentioned most often as potential Bush Supreme Court appointees include: Utah Sen. Orrin Hatch, Housing Secretary Samuel Pierce, Attorney General Richard Thornburgh, and federal judges Patrick Higginbotham, Roger Miner, and Ralph Winter.
The high court's most liberal sitting members - Associate Justices Harry Blackmun, William Brennan, and Thurgood Marshall - are also its most senior. All will be over 80 when Bush takes office. Speculation persists that one or more members of this trio will soon retire. Associate Justice Byron White, a conservative, has also hinted he may retire.
In any event, the President-elect will inherit a court leaning to the political right - and supportive of the concept of strong executive power. And he will likely have the opportunity to strengthen this coalition.
Some say that there would be strong pressure to appoint a black, such as Secretary Pierce, if Justice Marshall leaves the court. It is also stressed that Bush may be partial to appointing someone of Hispanic origin.
Professor O'Brien says that if a Supreme Court opening comes shortly after the change in the Oval Office, the nomination could go to Senator Hatch. This would appease the New Right, he explains, and bring relatively easy congressional approval. ``The Senate has a long history of confirming their own,'' O'Brien explains.