Justice Brennan: The Great Conciliator.

Hunter R. Clark Birch Lane Press, Carol Publishing Group, 120 Enterprise Ave., Secaucus, NJ 07094. 340 pp., $24.95.

Reviewed by Peter J. Messitte

When Justice William J. Brennan Jr. retired from the U.S. Supreme Court in 1990, he had served 34 years, one of the longest tenures in the Court's history. The National Review, a leading conservative journal, observed that "no individual in this country, on or off the Court ... has had a more profound and sustained impact upon public policy in the United States for the past 27 years."

Few would quarrel with that appraisal. Brennan crafted many landmark decisions associated with the Warren Court of the late 1950s and 1960s, including Cooper v. Aaron (confronting southern "massive resistance" to desegregation orders), Baker v. Carr (reapportionment), and New York Times v. Sullivan (extending First and Fourteenth Amendment protections to criticism of public officials).

During the Berger and Rehnquist years, he continued to champion his view of the Bill of Rights and the Fourteenth Amendment; liberty and equality were his bywords. Brennan's opinion in Craig v. Boren in 1976 established him as a leading advocate of gender equality; indeed, he openly supported the Equal Rights Amendment. He consistently argued in dissent that capital punishment was "cruel and unusual" in violation of the Eighth and Fourteenth Amendments, and as late as 1990 he was the architect of opinions that nullified laws making it a crime to desecrate the U.S. flag.

Through it all, Brennan remained universally liked, even adored, by colleagues, law clerks, Court personnel, and virtually everyone who came in contact with him. He was and is routinely described as warm, gregarious, polite, and ultimately a "great conciliator."

Hunter Clark, assistant professor of law at Drake University Law School in Des Moines, has focused on this latter trait in his new book, Justice Brennan: The Great Conciliator. The biography, Clark writes, "is intended to make the general public aware of this wonderful man's contributions to American democracy and to popularize his views in the hope that his dreams for all of us may some day come to pass."

Clark recounts how Brennan's parents came to this country from County Roscommon, Ireland, at the end of the 19th century, settling in New Jersey, and how his father, William Joseph Brennan Sr., a labor leader, eventually became a political figure in Newark. "Everything I am," the justice later wrote, "I am because of my father."

Passing briefly through details about his youth, we're told of young Brennan's matriculation at the Wharton School of Finance and Commerce at the University of Pennsylvania and his three years at Harvard Law School, from which he graduated in 1931. We follow his practice with a prominent New Jersey law firm, then his service in the Army as a labor troubleshooter for the undersecretary of war.

We see him as a leader of the New Jersey Bar, particularly his involvement in that state's court reform movement under Chief Justice Arthur Vanderbilt. We're told of his appointment to the New Jersey trial bench, from which he rapidly ascended to the state supreme court, and we're told of his reputation as a defender of the rights of criminal defendants. We learn of his speeches that directly criticized McCarthy-era excesses. The speeches later caused Senator McCarthy to be the lone dissenting vote when the Senate consented to President Eisenhower's nomination of Brennan to the High Court.

Brennan's heritage as an Irish Catholic from the urban Northeast bore on his selection for the Court by President Eisenhower, a matter Clark briefly touches on. But we're reminded that Ike was reported to have said of Brennan that he was his "second worst mistake" (Earl Warren being his "first").

Clark then takes us through a review of Brennan's most important opinions. In the course of his review, Clark attempts to sketch the historical setting, as well as the competing philosophies of various justices on the Court.

Brennan's stature and Clark's obvious admiration for him cannot mask the fact that this is a flawed biography. Little in it appears to be original. Apart from occasional quotes from the justice's former law clerks and colleagues, the book seems mostly a cut-and-paste presentation of what others have written. To be sure, memoirs of Brennan's colleagues on the Court--Warren, Black, Frankfurter, Douglas, and Marshall, among them--have been consulted. But articles written by many interviewers--newspaper columnists Anthony Lewis and Nat Hentoff, to name two--often provide the basis not only of quotes, but of conclusions about the significance of his work. And while the book has substantial reference notes, it contains no bibliography.

This is clearly not the definitive work on Brennan, nor does it pretend to be. But many intriguing issues are glossed over. How did a somewhat above-average student from Harvard Law School ascend to such heights? What was it that made this New Jersey State Supreme Court judge Eisenhower's choice for the High Court? How, ultimately, was the justice able to be the Great Conciliator in so many divisive cases before the Court?

Allowing that a truly comprehensive book on Brennan's life and work would make for a ponderous tome, I believe a better job could be done in a biography limited to some 350 pages. Kim Isaac Eisler, in my view, has in fact done it in his biography of Breanan, A Justice for All. Nat Hentoff, in his March 12, 1990, profile in the New Yorker, has done it better in much less space. Even the entry for Brennan in the Oxford Companion to the Supreme Court serves as well, particularly if one supplements it by reading--in full--five or six of the landmark cases for which the justice is famous.

Peter J. Messitte is a judge, U. S. District Court for the District of Maryland.