Looking Back, Looking Ahead: Justice O'Connor, Ideology and the Advice and Consent Process
September 1993
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INTRODUCTION
Running on a platform that faulted the federal judiciary for favoring the rights of criminal defendants and for tolerating affirmative action, Ronald Reagan became President of the United States in 1981.1 In the election of Reagan, the right wing message of 1964 Presidential candidate Barry Goldwater, endorsing a far-right judicial agenda including positions against civil rights legislation and for greater law enforcement discre tion, enjoyed a new level of social and political acceptability with President Reagan as its vanguard.2
Reagan promised to appoint individuals to the federal judiciary who would "let Congress, the president, and the state legislators do what they want unless it clearly contravenes the precise words of the Constitution - for example, regulate or forbid abortions, adopt prayers in public schools, impose capital punishment, [and] authorize police to engage in [warrantless] wire tapping...."3 In its appointment of federal judges and administrative officials, " [t]he Reagan Administration pursued
1 JAMESM. BURNS ET AL., GoVERNMENTBYTHEPEOPLE 174-75 (1987). Of
course, other components of his campaign, such as economic recovery and military strength (emphasizing President Carter's weakness as illustrated by the Iranian hostage situation), played a major role in his election. Id. at 504, 445.
2 Id. at 173-75. But cf. Walter F. Murphy & Joseph Tanenhaus, Publicity, Public Opinion, and the Court, 84 NW. U. L. REV. 985, 995-96 (1990) (charting public opinion on court decisions and commenting as a subsidiary matter that " [i]n 1964, Barry Goldwater tried to make the Court's decisions on criminal justice a critical issue in his Presidential campaign.... In later years, criminal justice became more salient, but the lag was too long to credit or blame Goldwater's campaign").
3 BURNS, supra note 1, at 374 (discussing Attorney General Edwin Meese Ill's remarks entitled "On the Theory of a Jurisprudence of Original Inten tion," in which he suggested that Reagan wanted only interpretivists in the judiciary. In that speech, he also argued "that the accepted view that the Fourteenth Amendment incorporates most provisions of the Bill of Rights is 'constitutionally suspect."') (citing Edwin Meese III, Address to the American Bar Association (July 9, 1985), in TODAY JOURNAL, November 15, 1985, at 6, and a contemporaneous criticism of interpretivism by Justice William Brennan, Excerpts of Brennan's Speech on Constitution, N.Y. TIMES, October 13, 1985, at A36 (Address of Justice William Brennan at Georgetown University (Oct. 12, 1985) (on file at the Supreme Court) [hereinafter Brennan's Speech]). See generally HERMAN SCHWARTZ, PACKING THE COURTS: THE CONSERVATIVE CAMPAIGN TO REWRITE THE CONSTITUTION (1988) (detailing the Reagan Administration's efforts to appoint ideologically conservative individuals to the federal judiciary).