(11 of 12)
Jimmy Carter appointed 265 lower-court judges, including 41 women and 38 blacks, while Reagan has had only 150 such openings to fill (his selections so far include 14 women, two blacks). Courts-of-appeals judges appointed by Democratic Presidents outnumber G.O.P. appointees 70 to 58, though Reagan still has twelve unfilled appointments with which to close the gap. Some appeals courts are completely out of sync with the top court. The Ninth Circuit in San Francisco, for example, had 27 cases reviewed by the Supreme Court and only one affirmed. Moreover, some state supreme courts have begun to interpret their own constitutions more liberally than the U.S. Supreme Court does the federal Constitution. For instance, in 1973 the U.S. Supreme Court found no federal constitutional requirement for equal funding of school districts within a state. But the same year, the New Jersey Supreme Court interpreted its state constistution to mandate equal funding for local school districts. The New Jersey requirement will stand. A state is free to confer greater rights under its own constitution than the Supreme Court finds in the federal Constitution.
If Reagan wins reelection, much depends on what kind of conservative he chooses for the bench. A judicial conservative, believing in restraint, might not like the abortion decision, but he would regard it as binding precedent. A political conservative worries more about results than the judicial process and might not hesitate to disregard the findings of his predecessors. On Reagan's list of appointees, both types of conservatives can be found (see following story). If Reagan picks ideologues, says N.Y.U.'s Reiss, "God knows what could happen. They could overrule anything they didn't like. They could rewrite constitutional law and history."
The Justices appointed by the election winner will have a chance not only to reorder the past but to shape the future. New constitutional dilemmas, like the ethical and moral complexities of genetic engineering, are beginning to wend their way to the high court.
Old ones are still unresolved, like the conflict between Congress and the Executive over which branch has the power to commit U.S. troops abroad. But no matter how technical or tortuous the case before them, the Justices can put their decision to the tests posed by Warren: "Is it fair? Is it right?"
The Constitution has stayed sturdy and relevant in large part because the Justices have been able to adapt it to what Jus tice Holmes called "the felt necessities of the time." Such a task is delicate, to be undertaken with reverence for established principle and the slow evolution of fundamental rights. If the court becomes a mere political instrument, it will lose its legitimacy; if the Justices become the blunt tools of the Presidents who appoint them their judgments will be just as transitory It is reassuring that, once ensconced in the high court, so many of the Brethren develop a higher loyalty. — By Evan Thomas.
Reported by Kenneth W. Banta/New York and Anne