During the recent presidential campaign, much was made of the fact that if President Reagan were reelected he would be in a position to reshape the Supreme Court. Five justices are over 75 years old; their successors, some of whom will almost certainly be appointed in the next four years, are likely to serve well into the next century. While many were concentrating on what the president's reelection would mean at the top of the federal judiciary, few were speculating on the future of the lower courts. The figures there are equally dramatic, for it is now estimated that by the end of 1987, President Reagan will have appointed a majority of all federal judges and the shift from a predominantly Democratic to a Republican bench will have been accomplished.
This year alone there will probably be more than 100 appointments. Bankruptcy Act revisions passed last July created 85 new judgeships, and those positions will be filled right away. Vacancies created by death, resignation and retirement will have to be filled. The president makes no secret of his intention to appoint judges who share his commitment to judicial restraint -- he made it a campaign promise, in fact -- and the voters overwhelmingly gave him the power to do so. Given this overriding consideration, what else can we expect in these appointments? During his first term, most of the judges named by President Reagan were white male Protestants who are members of his own political party. This can also be said of every one of his predecessors. A large share of the Reagan appointments went to people who already had judicial experience or had served on law school faculties, and he chose fewer political activists and former prosecutors than might have been expected. He appointed far more women and Hispanics than any of his predecessors, except President Carter, whose record in this area was unusual. But fewer than 1 percent of his choices were black.
It may be true that there aren't many qualified black conservative Republican lawyers seeking appointments to the federal bench, but presidents Ford and Nixon were able to find them. There is a growing number of qualified blacks on state court benches and on law faculties, and some of these -- even some Democrats -- must share the president's judicial philosophy. Racial quotas in the judiciary are unwise and unnecessary, but a special effort to find and nominate minority candidates would be welcome. The president will have plenty of opportunities in the next four years to show that he is trying.