Reagan's court.

RONALD REAGAN'S re-election means more, arguably, to conservative lawyers and jurists here in Washington--the community that houses the world's largest per-capita collection of barristers--than to anyone else. They realize how Mr. Reagan can stretch his influence to the year 2010 and beyond: to wit, by repopulating the Supreme Court (providing, of course, he is re-elected). By the time the next presidential term expires, five of the current Supreme Court Justices would be eighty years of age or older. Not surprisingly, lists of eligible nominees are making the rounds.

The universally agreed-upon criterion for placement on these lists is that the candidate be committed to judicial restraint, i.e., the belief that the Court has no business making decisions on public policy that properly belong to the people, acting through their elected representatives. In the past several decades, the Court, rather than the legislature, has changed the laws governing school prayer and busing, financial aid to religious institutions, abortion, capital punishment, racial quotas, sex discrimination, and political apportionment.

The short list has four names: Robert Bork, Richard Posner, Antonin Scalia, and Patrick Higginbotham. Bork, a judge on the U.S. Court of Appeals in the District of Columbia, is on everyone's short list, and the smart money says that Reagan will go with him first. This does not mean, however, that Judge Bork pleases all conservatives in all ways. Some think that the volume (as opposed to the quality) of his scholarship leaves something to be desired. "Compared to Posner, Bork has dribbled out opinions," notes a ranking Reagan aide. The same official also complains that when Bork was solicitor general his briefs were not completely edifying. "But, as SG, he wasn't the only one who had input into department positions, so I don't take him to task too heavily for the more liberal stands in those briefs."

A real dazzler is Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit (Chicago). Posner has "the most imposing, the sharpest mind on the whole federal bench," declares a veteran court observer here. Posner is a prodigious producer of opinions (more than 220 since his appointment in December 1981), and "the bulk and depth of his erudition is so vast that he has 'intellectually intimidated' the whole Seventh Circuit," notes the same attorney. Posner could be more influential if he were "less brutal--less cerebrally punitive--with his colleagues." So, Posner and Bork are emerging as the twin peaks of conservative scholarship. "For raw intellectual horsepower, they are unmatched by their competition," says a Washington jurist.

The third man on the conservatives' ultra-select list is Patrick Higginbotham, U.S. Court of Appeals for the Fifth Circuit (New Orleans). Higginbotham's writing on racial quotas in the context of a New Orleans police promotion case, in which he made the same arguments as did the Justice Department in the Memphis case having to do with racial quotas in the fire department, was particularly appreciated by the Administration. Although the New Orleans Court rejected Higginbotham's separate opinion, the Supreme Court vindicated his judgment (and the Justice Department's) in its ruling on the Memphis case. Higginbotham's opinion not only showed his judicial depth, but an exemplary fortitude and independence of mind. And the fourth man, Antonin Scalia (U.S. Court of Appeals in the District of Columbia), has shown similar keenness and independence of judgment, as evidenced in his opinions denying federal court intrusion into foreign policy.

Other names, of course, are being circulated on other lists around town, most notably that of William Bentley Ball, whose knowledge about and experience with matters dealing with the religion clause ("Congress shall make no law respecting an establishment of religion") is unexcelled, as evidenced by his handling of the Bob Jones case. But some doubts have been raised about Ball's reach in other areas. He is seen by many as a single-issue candidate, whereas the writings of Bork, Posner, Higginbotham, and Scalia run the gamut. "But watch for the religious fundamentalists to make one helluva play to get Ball on the short list," notes a savvy Reaganite lawyer here.

IN ADDITION TO High Court appointments, conservatives here agree that the President must revamp the office of solicitor general, which is charged with making the Administration's arguments before the Supreme Court. Despite the recent success of Solicitor General Rex Lee in the area of criminal justice (the exclusionary-rule and Miranda softenings), there's a feeling that Mr. Lee is unduly influenced by career lawyers at Justice who have convinced him that winning cases and not "upsetting" the Court is more important than upholding principles and changing policies.

Such weakness infuriates those who believe that Ronald Reagan needs an SG of the caliber of Robert Jackson, who served Franklin Roosevelt so well. "Jackson was bold and he was tenacious," notes a top Reagan aide. "He may have had a lousy win rate, but the work he did for FDR brought about the liberal sea-change that lasted over thirty years." That is no exaggeration of the longevity of Roosevelt's social and political legacy. His policies, as furthered by Justices William O. Douglas, Hugo Black, and others, remained dominant long after his death. Ronald Reagan could be in a position to do as much.