- The Washington Times - Saturday, June 19, 2004

In the fall of 1981, Ronald Reagan placed a phone call from the Oval Office to a lawyer named Jesse Eschbach. Mr. Reagan had decided to nominate Mr. Esch-bach to the federal bench and was calling to ask him to serve. Would he serve?Of course. Judge Eschbach later wrote Mr. Reagan to express “my deep appreciation for your kindness and consideration in calling me. It was an experience our family will never forget.”

Jesse Eschbach was one of the 382 judges Ronald Reagan appointed. That remains a record for one president. Mr. Reagan filled almost half of the sitting federal judiciary.

Mr. Reagan made similar calls to most of his nominees. That was a Reagan innovation. The phone calls indicated how much Mr. Reagan cared about judicial selection. So did the process he instituted for vetting nominees. Mr. Reagan was the first president to bring serious candidates for the bench to Washington for extensive interviewing. More than 1,000 prospects made the trip.

Mr. Reagan had the same interest in judicial selection as did his Democratic hero, Franklin D. Roosevelt. Presidents who served between them often saw judgeships in terms of patronage — of political favors to be dispensed. But both Roosevelt and Mr. Reagan understood judicial selection as an opportunity to influence the path of the law.

Both men felt that way because both had complaints about where the law had been going. Both contended for judges who would exercise restraint. Mr. Reagan objected to the tendency of courts to declare rights not found in the text or history of the Constitution. To Mr. Reagan, the 1973 case of Roe vs. Wade, which declared the right to an abortion, was the most notorious example of what a court shouldn’t do.

Mr. Reagan thus initiated through his judicial selection an important argument about the proper role of the courts. The issue has dominated the politics of judicial selection ever since, with the two parties now firmly on opposite sides. The nominees fought over have included ones designated not only for the Supreme Court but also for the lower courts.

Mr. Reagan managed to get most of his nominees confirmed when Republicans held the Senate, as was the case through 1986. But when Democrats regained control in 1987, his batting average declined.

That Congress established the importance to judicial selection of divided government. George H.W. Bush faced a Democratic Senate, and Bill Clinton, for six of his eight years, a Republican Senate. Both presidents would have seen more nominees confirmed had their parties been in the majority.

Today, you can’t presume same-party control of the presidency and the Senate means a president will see his nominees approved. Senate Democrats, though in the minority, have routinely resorted to filibusters to block votes on Bush nominees who otherwise would have been confirmed. Mr. Reagan never experienced a Democratic filibuster, though in 1986 — when the judges’ wars started to heat up — his aides thought one might be tried.

Mr. Reagan had opportunities to change the direction of the Supreme Court. In 1981, he appointed Sandra Day O’Connor. In 1986, when he chose William Rehnquist as chief justice, he backfilled by selecting Antonin Scalia. And then, in 1988, the Bork nomination having failed a year earlier, he appointed Anthony Kennedy.

Reagan biographer Lou Cannon has written Mr. Reagan was “more successful in judicial selection than in any other area of domestic governance.” Liberals take satisfaction he wasn’t more successful. Had Robert Bork been confirmed, the court likely would have overruled Roe and moved generally in a more conservative direction.

Ten years have passed since a president (Bill Clinton) got to pick a justice (Stephen Breyer). The record for the number of years between new appointees is 11, set between 1812 and 1823. The advanced age of some justices and the fact they have well exceeded the average length of service are reasons to think there could be a vacancy — or two or three — during the next presidential term. In which case the argument over the role of the courts will be joined once again.

Terry Eastland is publisher of the Weekly Standard.

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