A comparison of the voting records in environmental cases of judges appointed by Presidents Carter and Reagan supports the theory that a president's most lasting impact may result from his judicial selections.
Law professor William E. Kovacic said his findings may be especially significant if President Bush chooses judges of the same cast of mind as those appointed by Reagan. In eight years, Reagan named 347, or 47 percent, of the nation's active federal judges, who serve life terms.By the end of Bush's term in 1992, Kovacic noted, "Reagan-Bush nominees could account for as many as 75 percent of all federal Court of Appeals judges."
When Reagan-Bush judges constitute that big a majority, Kovacic noted, they "might be inclined over time to endorse more extreme positions in writing majority opinions" because they won't feel compelled to achieve consensus with more moderate judges.
In a telephone interview Wednesday, Kovacic said everyone knows about the impact of a president's choices for Supreme Court vacancies, "but the same kind of effects, though not quite so dramatic, can result from whom he picks for the district and circuit courts."
"Of all the tools at a president's disposal, this is an important one," he said. "If you want to make your policies outlive your administration, this is one of the most important means for doing that."
Kovacic's analysis was published by the Washington Legal Foundation, a conservative research organization. Kovacic teaches at George Mason University in Virginia.
He studied how appeals court judges voted on environmental cases arising from enactment of the Clean Air and Clean Water Acts.
In 162 cases in which Reagan and Carter appointees cast 254 votes, he found that Carter's judges voted 54 percent of the time to increase the regulatory burden on those whose pollution emission or discharge activities were under consideration. Judges appointed by Reagan voted that way 43 percent of the time.
On the key District of Columbia Circuit Court of Appeals, often called the country's second most important court, the differences were sharper. Carter appointees voted 48 percent of the time to increase the pollution-fighting burden of parties before the court while Reagan judges voted that way only half as often.
"The results are not entirely clear-cut," Kovacic concluded, noting that when Carter and Reagan judges sat on the same panel they rarely disagreed. "It nonetheless appears that the Reagan appointments on the whole succeeded in bringing less intervention-minded judges to the courts of appeals."
The tendencies of judges are particularly important, Kovacic said, in regulatory issues where Congress often gives an administrative body, like the Environmental Protection Agency, broad authority to implement comparatively general statutes and the courts find themselves overseeing their work.
Other studies agree about the long-term impact of judicial selections. Sheldon Goldman, political scientist at the University of Massachusetts, wrote last summer that the real impact of Reagan's appointments will reach into the 21st century and likely will be reinforced by Bush's judges.
"For civil libertarians this means that when the country celebrates the bicentennial of the ratification of the Bill of Rights in 1991, the courts will be dominated by those hostile to a liberal reading of those rights." he said.