Ronald Reagan shaped the Court like few presidents beyond the Founding generation. As with so many other aspects of his life and presidency, Reagan expected his judges to have an innate sense of what it meant to be American–to respect how law makes it possible for people of differing beliefs to live in relative harmony and advance the common good. The men and women Reagan wanted for the bench were expected to be highly competent–leaders in their local professional communities–but also to have that something more: the willingness to respect the separation of powers and the federalist structure, and not to look for opportunities to read their own preferences into the law’s inevitable ambiguities.
Many presidents forget their platforms on assuming office; Reagan did not. In many ways, each of the high-court justices Reagan nominated reflected different aspects of his personality: O’Connor, the federalist; Scalia, the scrappy conservative intellectual; and Kennedy, the quiet, dependable voice of fairness.
With O’Connor, Reagan broke the gender barrier as he had promised he would in his campaign, and he did it far more deeply than many realize. Reagan appointed O’Connor in disregard for her gender and in full regard for her capability and her respect for the position of the states in the federal structure. Reagan saw in O’Connor his own love of the ranch and the freedom so intuitively felt by those of us who live in the West. When Chief Justice Burger resigned, Attorney General Meese called me in to see if there were any special procedures for double nominations–that is, an elevation from within coupled with an appointment to the remaining vacancy. It is not clear whether the president was the first to see the opportunity to both promote and appoint, but he relished it.
Rehnquist was a natural for chief, given his prior OLC experience, but there would be an internal struggle over whether to appoint Bork or Scalia to the vacancy resulting from his elevation. Many argued that Judge Bork was the senior, and Reagan respected those years of service to conservative principle. Ultimately, Scalia’s wit, keen intellectual merit, and relative youthfulness won out, but the president surely made a mental note that Bork would get the nod if another vacancy occurred.
It did, of course, with Lewis Powell’s resignation in late June of 1987. By then, the Senate had changed hands, and there was growing partisan resentment that this president, whom so many of his opponents underestimated, was extraordinarily effective in translating his bedrock concept of America into judicial appointments. The president was almost never brought to anger, but he was clearly frustrated with what he saw as the media caricature of Judge Bork’s record. He enjoyed standing beside the judge in the press room and took delight in the staff’s suggestion that Bork was a modern-day Jimmy Stewart in Mr. Smith Goes to Washington, trying to break through a campaign of distortion. When the Senate refused to confirm Judge Bork, the president immediately called him, thanking him for his “courage in facing an uphill battle to maintain the independence of the judiciary.” There was little finger-pointing allowed during Reagan’s presidency, and certainly it was not his nature to duck and run. Fortunately for the president, the pool of available talent was deep, and Justice Anthony Kennedy was confirmed easily.
Today’s Court continues to reflect the strength of Reagan’s appointments: O’Connor has joined with Rehnquist to lead the way to rebalance state-federal interests; Scalia has supplied the intellectual firepower to force the Court to address original understanding and to make the case for deference to legislative choice where the text is silent; Kennedy has steadily built a legacy as a stalwart defender of freedom of speech and religion, while helping to achieve the compromises necessary on a closely divided court. Few contests over foreign affairs reached the Court during the Reagan presidency, but it can be reasonably assumed that it will be Reagan’s judges who will today provide the framework for resolving the nettlesome issues of civil liberty and national security during this war on terror.
Reagan’s voice may have gone silent some years ago, but the judicial voice he gave to the Supreme Court remains clear and resonant.
–Douglas W. Kmiec is chair and professor of Constitutional law at Pepperdine University and author of The Attorney General’s Lawyer: Inside the Meese Justice Department. He served as head of the office of legal counsel in the Reagan administration.