A court after his own image

Roughly this time four years ago conservatives frustrated with the listless campaign of George Bush said there were nonetheless some 170 reasons to reelect him. The "170 reasons" were the 170 federal judges the next president was then considered likely to be able to appoint.

This argument sought to remind voters of an important point: that a president can influence the philosophical direction of the federal judiciary through the judges he selects, and that the two political parties are philosophically divided, with the Republicans inclined to judicial conservatism, and the Democrats to judicial liberalism.

Mr. Bush's defeat spelled change for a bench 70 percent of which he and his predecessor, Ronald Reagan, had chosen. Now, four years later, the question is whether the change will be arrested and reversed, with Bob Dole's election, or accelerated, with Bill Clinton's reelection.

Numbers serve to introduce the story. Thanks to more retirements than anticipated, Bill Clinton has been able to appoint not 170 but 202 judges, more than a quarter of the federal bench. If reelected, Mr. Clinton will likely name a similar number of new judges and thus will have chosen, over his two terms, slightly more than half the entire federal judiciary.

Mr. Clinton already has appointed 170 of the 649 district judges. He has nominated another 20 of these trial judges, and there are 42 vacancies still to be filled. Over the next four years, assuming the usual pace of retirements, there likely will be more than 100 district court vacancies. Thus, by late 2000, more than half of all district judges could be Clinton appointees.

He could also name more than half the 179 judges sitting on the 13 circuit courts of appeals. So far, Mr. Clinton has named only 30 of these judges. But he has nominated another eight; some 18 seats are now vacant; and retirements likely will open another 40 seats over the next four years.

In a second term, Mr. Clinton would not only add considerably to his current number but, more important, be able to shift the balance of power in most of the circuits, which, because the Supreme Court reviews so few of their decisions, function as mini-Supreme Courts.

Retirements should open enough seats on the First, Second, Third, Fourth, Eighth, and Ninth circuits so that control of these courts would, in a second Clinton term, shift to Clinton/Carter judges. Retirements also could shift the balance of power in the Sixth and Tenth circuits.

By the year 2000, if Mr. Clinton is reelected, equal numbers of Reagan/Bush and Clinton/ Carter judges probably would be sitting on both. But these courts, as well as the D.C. circuit, would tend to be controlled by Clinton/Carter judges, since some of the Reagan/Bush judges on these courts tend to stray from the judicial conservatism of their sponsors. Only the Fifth and Seventh circuits, and the federal circuit, would likely remain in conservative control throughout a second Clinton term.

And then there is the Supreme Court, whose decisions (in theory) govern the judgments of the lower courts. On many key issues--affirmative action, voting rights, congressional regulatory power, and religious liberty--a conservative majority of five controls. A question on which the presidential election clearly bears is whether that majority will endure. The math works out such that a vacancy occurs every two years, on average, with a president, again on average, thus able to name two justices during a single term.

Mr. Bush and Mr. Clinton both hit the average, each choosing two Justices. If Mr. Clinton were again to hit the average, he would name two more Justices. The question is, in doing so, which two vacancies he would fill.

Here is it useful to note that the average term of service for a Justice in the past half century is 16 years. There are three Justices who have or very soon will have served 16 years: Chief Justice William Rehnquist (23 years), Justice John Paul Stevens (21 years), and Justice Sandra Day O'Connor (15 years). Justices Rehnquist and O'Connor are (more or less) judicial conservatives, Mr. Stevens a liberal.

Were only Mr. Stevens to step down, Mr. Clinton would not be able to shift the balance of power. But if he had the chance to fill the seat now held by either Mr. Rehnquist or Mrs. O'Connor--indeed, if either were the only seat he had the chance to fill--then he could create a liberal majority. Even more, if Mr. Clinton were to name Mr. Rehnquist's successor, the new Chief Justice would wield the additional influence that comes with the job, by assigning opinions and framing terms of debate.

Liberals have complained that Mr. Clinton has not used his power of judicial selection to best purpose. They point out that he has seldom chosen from the liberals who dominate law school faculties, and that he has scrubbed nominations or would-be nominations of liberals facing controversial confirmation battles.

Even so, Mr. Clinton has managed to appoint liberals to the circuit courts and the Supreme Court.

In a study released earlier this year, Clint Bolick of the Institute for Justice found that Mr. Clinton's circuit appointees have proved more likely to favor defendants in criminal cases and plaintiffs in civil rights and civil liability cases and to view the power of federal courts more expansively than did Reagan/Bush judges. And writing in the Sept./Oct. issue of the Heritage Foundation's Policy Review, Northwestern law school professor Steven G. Calabresi concluded that whenever Clinton judges and justices have not followed the Constitution and have engaged in policymaking, they have usually endorsed policies to the left of the president's own public statements on similar issues.

Consider positions taken by Mr. Clinton's two Supreme Court appointees, Justices Ruth Ginsburg and Steven Breyer. Though Mr. Clinton has said the era of big government is over, Justices Ginsburg and Breyer have voted in favor of every single claim of national governmental power presented to the court.

Likewise, though Mr. Clinton has said the First Amendment does not "convert our schools into religion-free zones," his two justices joined an opinion that argued comprehensively against any role for religion in any public institution--in effect, for a religion-free public zone.

A third example: Though Mr. Clinton supported the V-chip in television sets "so that parents can screen out programs they believe are inappropriate for their children," Justice Ginsburg has voted against every single restriction aimed at suppressing indecent TV programming.

There is no good reason to think that in a second term Mr. Clinton would not continue to send liberals to the federal bench, even liberals at odds with some of his own stated policy positions, and that he would fail to reshape a federal judiciary slipping by the day from the control of Reagan/Bush judges. Nor is there any good reason to think that Mr. Dole, if elected, would fail to name jurists of the same philosophical cast as those picked by Reagan and Bush.

Though the future of the federal judiciary is an important issue this fall, the question remains whether the issue will become an issue. The Clinton campaign, with Mr. Clinton well ahead in the polls, is unlikely to beat a drum about judicial selection. If anyone is to take the initiative, it will have to be Mr. Dole.

Mr. Eastland is editor of Forbes MediaCritic and a fellow at the Ethics and Public Policy Center in Washington, D.C.