EXCERPT: Dr. Mary Frances Berry on How History Repeats Itself

By Dr. Mary Frances Berry Mar 13, 2018

Rarely does anyone stop to recall the resistance movements and struggles by reformers and activists against some of President [Ronald] Reagan’s civil rights and environmental policies or consider how some of it succeeded. I was a member of the United States Commission on Civil Rights and was fired by President Reagan for opposing his anti-civil rights policies. He said I served at his pleasure, but was not giving him very much pleasure. I gave him even less pleasure then, as I decided to sue, winning reinstatement.

By this time, marches on Washington were the first, most obvious major resistance to federal policies. On May 3, 1981, while Reagan’s tax cuts and budget proposals were being debated, the All People’s Congress, a coalition of several hundred community-based organizations opposed to Reagan’s economic, social and military policies, sponsored a march on Washington. They drew almost one hundred thousand people to the Pentagon to protest Defense Department budget increases and United States involvement in El Salvador’s civil war while social programs were slated for cuts.

Founded in May 1981 in New York and Washington, the All Peoples Congress also sought equal rights for people of color, women and gays; nuclear disarmament; abortion rights; remedies for unemployment; and an end to cuts in federal social programs and unfair treatment of refugees and undocumented persons. Their use of “Congress” as the name of the organization signified the belief that the U.S. Congress was just “a rubber stamp for Reagan.”

President Reagan attempted to turn back the clock on civil rights gains that had increased opportunity and alleviated discrimination against women and people of color. His appointees in the Justice Department stopped enforcing the laws they didn’t like and were emboldened when Republican appointees to the Supreme Court struck down civil rights legislation. Reagan also attempted to add to the conservatives on the Supreme Court by nominating Robert Bork. Using inside and outside strategies—working both within and outside federal agencies—a bipartisan coalition of moderate congressional Republicans and Democrats, professional organizations and civil rights groups, in coordination with a grassroots movement across the country, enacted legislation four successive times that overturned negative court decisions and Reagan’s actions. That informal coalition also killed Robert Bork’s Supreme Court nomination. Bork had been promised an appointment since he carried out [President Richard] Nixon’s Saturday Night Massacre as acting attorney general, but the coalition regarded him as a racist “ideological extremist” who would tilt the balance on the court.

The victories included enacting the Voting Rights Act Extension of 1982, the Civil Rights Restoration Act of 1988, the Fair Housing Amendments Act of 1988 and the Civil Rights Commission reauthorization in 1984. They succeeded, even though until 1986, Republican senators Orrin Hatch (Utah) and Strom Thurmond (South Carolina) controlled the Senate Judiciary Committee, from which most civil rights legislation emerges. The reactionary policies caused pain, but fueled effective organizing and support for resistance and positive change.

Although the coalition of civil rights organizations and activists won legislatively, they soon lost much of the law and policy struggle in the courts and had to renew the battles to restore gains. Struggle seemed endless. After the coalition defeated Robert Bork’s Supreme Court nomination, Reagan appointed three associate justices—Sandra Day O’Connor, Antonin Scalia and Anthony Kennedy—and William H. Rehnquist to chief justice. Reagan also succeeded in gaining confirmation of more than 350 youthful judges to lower federal courts. In the thirty years since Reagan’s election, the interpretation of the law by federal court judges has weakened the civil rights laws the coalition achieved.

Reagan succeeded in disabling the United States Commission on Civil Rights, though he failed to expel me as his most vocal critic, whom his supporters urged him not to endure. The commission had been a symbol since 1957 of the nation’s commitment to equal opportunity and an end to discrimination for invidious reasons. It had not hesitated to criticize government at all levels, including presidents, based on its investigations. Reagan and his advisers objected to the commission’s watchdog role, because it interfered with their goal of seeming to support civil rights while undercutting enforcement.

Reagan’s victory in the 1980 presidential election was decades in the making. Opposition to elements of the black freedom struggle, denying the existence of discrimination and limiting the availability of remedies were part of the conservative tide that Reagan rode to office.

He sought to extend the race-polarizing strategies that Republicans had used since Nixon, while reminding correspondents that he lacked personal bigotry. Such strategies drove the wedge deeper between the Democratic Party and Northern white working men who felt threatened by efforts to end long-standing employment discrimination by hiring blacks and women. Adding this constituency to others—anti-civil rights Southern whites, the Christian right, economic conservatives and a few blacks to provide political cover—Reagan worked to consolidate a sustainable conservative majority. On taxes and spending issues, Reagan achieved early success, but when he turned to civil rights issues, he could not seduce Republican moderates. Their votes did not mean they agreed that civil rights should be deemphasized.

Then Republicans took political judicial selection to a new level. They dispensed with the pretense of desiring independent input and diminished the importance of senators and local party leaders in selecting candidates. They also insisted on marginalizing the ratings of the American Bar Association’s Standing Committee on the Federal Judiciary.

The administration subjected candidates for the district courts and courts of appeals to an unprecedented, systematic screening process to support Reagan’s plan to use the judiciary to achieve the legal and political change he sought. The process was directed by the White House counsel, and [Edwin] Meese, who as attorney general campaigned publicly for the reversal of decades of constitutional jurisprudence in civil rights, privacy rights, the rights of those accused of crimes and federalism. In the Justice Department, the screening was centered in the newly created Office of Legal Policy, the name of which connoted its political purpose. It included the attorney general, the assistant attorney general for legal policy, the special counsel for judicial selection and some of their staff. This group made recommendations to the federal Judicial Selection Committee, an- other Reagan administration innovation, which was based in the White House. Later called the Working Group on Appointments, because it also recommended U.S. attorney candidates (which George W. Bush’s Justice Department shamelessly politicized twenty years later) and U.S. marshal positions, this body formalized White House control. Beyond receiving recommendations from Justice, the White House group also created a roster of candidates.

At Justice and in the White House, candidates’ records were scoured and analyzed to gauge their ideological and political bona fides. Finalists were subjected to daylong interviews (another Reagan administration novelty, which many candidates found offensive) in which they were asked about their judicial philosophy and positions on specific issues, especially abortion. In short, the process delivered nominees who passed a litmus test designed to assure their devotion to interpreting the law in accordance with Reagan’s political objectives. The selection committee’s consensus recommendations were presented to the president, who generally did not play an active role in the process and rarely failed to approve the candidates placed before him.

With Stephen Williams’ seating in June 1986, Reagan’s appointees made conservative judges a majority on the Court of Appeals for the District of Columbia Circuit, the second most important federal court. Conservatives celebrated it as among the important victories of Reagan’s presidency. By the end of his presidency, Reagan appointees were the majority on the Courts of Appeals for the Second, Sixth and Seventh Circuits, and they were a near majority elsewhere, joining Nixon’s and [President Gerald] Ford’s appointees to create Republican dominance in the courts.

The Reagan administration also tried to ensure the staying power of their agenda in the courts by appointing young judges. The justices Reagan placed on the Supreme Court (average age 49.3) were notably younger than President Clinton’s nominees (average age 57.3). Presidents George H. W. Bush and George W. Bush followed Reagan’s lead (average age 49.3). In making his first nomination, President Trump followed the pattern, naming Neil Gorsuch, age 49, for the Supreme Court.

During Reagan’s first term, 11.4 percent of his judicial appointees were under forty, a higher percentage than any recent predecessor, and the average age of his appeals court judges in his first term was 51.5, the youngest average among his and the previous four administrations. Youth was especially emphasized during Reagan’s second term, when his nominees to the district and appellate courts were younger than those of any other president in the twentieth century. Of his second-term judges, 34.2 percent of were under forty-five years of age. The next highest percentage of nominees under forty-five was 22 percent, by Theodore Roosevelt.

The Supreme Court’s right turn—which began before Reagan’s presidency and continued with his associate justice appointments, his elevation of Rehnquist, and the subsequent Republican appointments of Clarence Thomas, John Roberts and Samuel Alito (all of whom were Reagan administration veterans)—is undeniable and widely recognized. It is perhaps unsurprising that O’Connor and Kennedy, while contributing to the court’s rightward shift, became swing votes in cases involving disputes over divisive issues like abortion and affirmative action, since their nominations were atypical in ways that short-circuited the process of guaranteeing their conservative qualifications. O’Connor was simply not subjected to the same screening applied to other nominees. Doubts were raised about her fidelity to the anti-abortion creed, but with a president concerned to keep a campaign pledge to name a woman to the first opening on the court, and Goldwater and Rehnquist backing her, those charged with vetting her set aside the doubts, and Reagan chose her after a brief Oval Office meeting. Anti-abortion activists and other forces of the GOP right had little opportunity to mount effective opposition. Kennedy was thoroughly screened and was passed over repeatedly for lacking the necessary conservative bona fides. But with an election year looming, he was a safe nominee for Republicans in the wake of the Bork defeat and the embarrassment when Douglas Ginsburg was nominated and then withdrew over his past marijuana use. On the other hand, Rehnquist, as chief, continued performing as he had as an associate justice, and for nearly thirty years, Scalia performed as Reagan and Meese knew he would. On the eve of his retirement in 2010, Justice John Paul Stevens trenchantly observed that, with the exception of Ruth Bader Ginsburg and potentially Sonia Sotomayor, each of the eleven justices who joined the court since 1975, including himself, was more conservative than the justice he or she replaced. As a group, the Republican nominees moved the court sharply in that direction.

What the successes and failures of the resistance against Reagan’s domestic agenda show is that protesters were successful in mounting grassroots opposition on legislation and developing new strategies. What was desperately needed, however, was some way to mobilize sufficiently to routinely thwart bad judicial appointments. This would include deterring White House nominations, consolidating senatorial opposition to confirmation, and more and better ways of explaining the stakes to the grassroots to win. The founding of the American Constitution Society in 2001, which for progressives identifies and promotes those who might become judicial appointees, did not come until almost twenty years after the Federalist Society was formed.

In confronting Reagan, The Leadership Conference on Civil and Human Rights won some important battles, but his judicial appointees would make clear that the war was never over. Victories had to be re-won.

Adapted from “History Teaches Us to Resist: How Progressive Movements Have Succeeded in Challenging Times” by Dr. Mary Frances Berry, with permission from Beacon Press. It’s available now.

Dr. Mary Frances Berry is the Geraldine R. Segal Professor of American Social Thought and professor of history at the University of Pennsylvania. She is the former chairwoman of the U.S. Commission on Civil Rights, a distinguished fellow of the American Society for Legal History, the author of twelve books and the recipient of thirty-five honorary degrees.