The importance of the federal courts is not lost on ideological conservatives. In the 1970s and early 1980s, fuming in response to the decisions rendered by the Supreme Court under Chief Justice Earl Warren, and frustrated by thwarted attempts to roll back civil rights, civil liberties, and privacy rights in Congress, they put in place the cornerstones of today's largest and most powerful policy think tanks and advocacy organizations.
In the legal community, the most well known and powerful of these organizations is the Federalist Society. Founded in 1972 with the support of conservative law professors, including former D.C. Circuit Judge Robert Bork and Supreme Court Justice Antonin Scalia, the Federalist Society now boasts a membership of more than 20,000 lawyers, policy analysts, and business leaders. There are more than 5,000 law student members, and student chapters exist at 145 of the American Bar Association-accredited law schools.
Federalist Society members and supporters, some of our country's most conservative thinkers and activists, include Linda Chavez, President of the Center for Equal Opportunity; C. Boyden Gray, White House Counsel to President George H.W. Bush; Don Hodel, former President of the Christian Coalition; and Whitewater Independent Counsel Kenneth Starr. The Federalist Society seeks to reorder "priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law." 1 Their publications advocate for a legal system resting on the principles of private property ownership, freedom of contract, and limited government. They also advocate for rolling back President Franklin D. Roosevelt's "New Deal," which ushered in an era of important reforms that serve as the foundation for many of our most important legal protections today.
These organizations and others like them are determined to shift the courts' philosophical balance to the right and enshrine their ideological views in the law.
The Reagan and Bush Legacies
While George Bush has been successful at finishing the job of packing the federal branch with conservative ideologues, these efforts really began in the 1980s. For 12 years, the Reagan and George H.W. Bush administrations made a concerted effort to place their stamp on the judiciary and to appease social conservatives who advocated for rolling back civil rights, civil liberties, and privacy advances made during the 1960s, 1970s, and early 1980s.
Recognizing that the lower courts and the Supreme Court would have a significant affect on the direction of the law for years to come, conservatives inside the Reagan White House–led by White House Counsel Fred Fielding and Attorney General Ed Meese—made it clear that the Reagan administration would attempt to nominate candidates to the federal bench who would embrace the most conservative judicial philosophy.
In a series of reports, Reagan administration lawyers began articulating areas of "constitutional controversy," the administration's own view of the law, and the importance of judicial philosophy.
One report sent to the Attorney General by Justice Department lawyers, "The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation", focused on fifteen key areas of the law that could be "sharply influenced" by the judicial philosophies of those sitting on the federal bench. The report also made the point that the courts play an important role in shaping the law and therefore, the public, the media, and members of Congress should be attuned to the affect the judicial selection process—and the judicial philosophy of the nominee—will have on the decisions made by the courts.
As the traditional lead agency in the executive branch in the judicial selection process, the Department of Justice believes that this report will prove helpful in communicating to the public, the media and Members of Congress the growing importance of the judicial selection process. … it is hoped that this report will allow Members of Congress of both parties, pursuant to their constitutional responsibilities, to assess judicial nominees in the most thorough and informed manner possible.
There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate the third co—equal branch of the national government — the federal judiciary.2
Yet another report, "Guidelines on Constitutional Litigation", provided government lawyers with the administration's view of the law—not necessarily the prevailing view—in a wide range of issue areas. Premised on the doctrine of "original intent," the report advocated for the narrowing of individual rights and government powers granted by the Constitution. As Indiana University School of Law Associate Professor Dawn Johnsen wrote, "rarely has any president sought to advance such comprehensive constitutional views in direct conflict with those of the Supreme Court." 3
Armed with its own view of the Constitution and the law, as well as judicial selection criteria designed to identify only those whose ultra-conservative ideology matched their goals, the Reagan administration—and later the first Bush administration—methodically shifted the courts in the direction it desired. Many of the men and women nominated in the 1980s and early 1990s are our nation's most conservative judges today—including Judge Edward Earl Carnes, Jr. of the Eleventh Circuit, Judge Sidney Fitzwater of the Northern District of Texas, Judge Alex Kozinski of the Ninth Circuit, Judge Michael Luttig of the Fourth Circuit, Judge Daniel Manion of the Seventh Circuit, and Judge J. Harvie Wilkinson of the Fourth Circuit. These judges are leaving an indelible mark on the nation and are arguably the most enduring legacy of the presidencies of Ronald Reagan and George H.W. Bush.
