Reagan's policy stamp. High court nominees meant to strengthen President's social agenda for many years
Washington — The Reagan era will not end in 1989. With his two Supreme Court appointments, President Reagan clearly hopes to extend the influence of his presidency beyond his term of office and solidify a more conservative philosophy throughout American society.
During his first term, the President did not push his social agenda except rhetorically. He chose instead to concentrate on getting the economy moving, curbing government, and building up the military.
But in his second term he is vigorously using the judicial system to put his conservative imprint on social policies, from affirmative action to prayer in the schools. The appointments of William H. Rehnquist as chief justice of the United States and of federal judge Antonin Scalia to replace him as associate justice, if confirmed by the Senate, will lend impetus to this effort.
``We are hoping to put on the court . . . a judicial philosopher who shares the President's philosophy and is young enough to remain on the court for many, many years,'' a senior White House official said after the announcement this week. ``That is a very pleasant prospect for the President and others in this administration.''
Constitutional scholars do not see a dramatic change on the court, however. Although the Justice Department under Attorney General Edwin Meese III has pursued a more aggressive posture on major social issues, it has not had much success. In such areas as school busing, separation of church and state, and abortion, the Supreme Court has by and large rebuffed the Reagan administration.
``The court has not been very responsive to Reagan on social issues, and I don't think that Scalia will change that outcome,'' says A. E. Dick Howard, a professor of law at the University of Virginia. ``But over the long haul you might see change that comes about through the combination of two powerful minds -- Rehnquist and Scalia, both of whom have a fully thought-out conservative philosophy.''
With Mr. Rehnquist assigning opinions and Mr. Scalia at his right elbow, Professor Howard suggests, ``we would begin to see a persuasive judicial strategy . . . that could influence justices who are moderately conservative.''
The President seeks to reduce what he regards as the Supreme Court's overextended role in trying to resolve social and legal problems rather than interpreting the law. He would leave it to Congress and state legislatures to frame policies.
The net result of ``judicial restraint,'' conservative scholars argue, would not be to undo policies favored by the majority of the public. It would simply leave these policies for local communities to decide. ``If the Supreme Court overruled Roe v. Wade [the abortion decision], most communities in the country would keep the right of abortion,'' says legal scholar Bruce Fein. ``The same is true of prayer in the schools. The country would not vote except in a few communities to reinject prayer in the schools.''
But Mr. Fein does see the post-Burger court making a tangible if not dramatic shift to restraint in such areas as libel law, administrative law, presidential power, and aid to parochial schools.
The President's surprise announcement this week came three weeks after Chief Justice Burger on May 27 informed him of his decision to step down. Three of Mr. Reagan's close advisers -- chief of staff Donald T. Regan, Attorney General Meese, and White House counsel Peter J. Wallison -- searched for a replacement.
The process was speedy and straightforward. The screening group drew up a list of 10 to 15 potential justices who shared the President's philosophical views. Rehnquist was on the list. On June 9, according to the White House official, the three met with the President, who ``at that time decided that he wanted to meet with Justice Rehnquist.'' He did so three days later and, after a discussion, offered him the post.
The President also asked to meet with Judge Scalia, whom he had appointed to the US Circuit Court of Appeals. Scalia stood out on the list, the official said, ``because he is one of the principal exponents of the President's philosophy of judicial restraint.'' The three-member group did not apply a ``litmus test'' to determine how Scalia might vote on such specific issues as abortion and school prayer, the official said, but his record was scrutinized.
``It was concluded that Judge Scalia, in addition to his magnificent scholarship, was also an exemplar of precisely the view that the President wants the courts to take in a democratic society,'' the official said.
While the post-Burger court is not expected to change the voting outcome in future decisions, scholars say, the new appointments will ensure President Reagan's influence over the long haul.
``Reagan has molded the presidency in many ways . . . but he has not had a major impact on the Supreme Court and has suffered a reasonable number of losses, because he had only one appointee, and two of the three Republican appointees [John Paul Stevens, Harry A. Blackmun, and William J. Brennan] were not voting the way his legal advisers would have liked,'' says presidential scholar Thomas Cronin. ``So he now has a chance to have equal control of the court but without dominating it.''
The President has consistently preached a conservative gospel to his supporters on the right. But as a realist in calculating what is politically achievable, he has refrained from pressing his social agenda in Congress, leaving it to the judicial system to bring about changes.
It is estimated that by the end of his term Reagan will have the opportunity to appoint more than 50 percent of the federal appellate judges. The Rehnquist and Scalia nominations are important because lower and district courts decide their cases within the framework of Supreme Court interpretation.
``As long as the Supreme Court maintains that busing is a legitimate instrument to create racial balance or that there should not be religious activity in public schools, judges do not have a lot of leeway,'' says Stephen J. Wayne, a presidential expert at George Washington University. ``So if Reagan can get change at the top, he'll be able to use the courts more aggressively to pursue test cases at the lower level.''
The two Supreme Court appointments are expected to be taken up by the Senate Judiciary Committee by mid-July. Sen. Strom Thurmond, chairman of the committee, says he expects no strong opposition to their confirmation.