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God save this honorable court.


If the preliminary skirmishing is any indication, the impending battle for the Supreme Court will be the fiercest since FDR's second term court-packing controversy. The Reagan administration has taken the offensive with a rhetorical blitzkrieg led by Attorney General Edwin Meese III, who has vowed to eradicate the legacy of the liberal Warren Court. In highly unusual public speeches, two of the current Court's more liberal members have returned Messe's fire, angrily defending their view of the Constitution. With five of the present justices aged 76 or older, the stakes in this fight could be high indeed.

The clash takes place on a murky battlefield, where even veteran adversaries cannot distinguish with any precision between politics and legal principle. It's a swamp that neither liberals nor conservatives can drain of emotion and demagoguery. Meese has implied that his strategy-- appointing justices who will strictly obey the "plain meaning' of the Constitution's words and the "original intention' of its authors--transcends politics in a search for absolute truth. But Justice William Brennan has responded that the administration's appeal is "little more than arrogance cloaked as humility'--dishonesty in no uncertain terms.

Into this morass strides Laurence H. Tribe, Harvard professor of law and renowned Supreme Court litigator. Tribe's 1978 treatise, American Constitutional Law, is probably the most influential contemporary reference book in the field. Now, in God Save This Honorable Court,* he challenges lawyers and non-lawyers alike to consider how the selection of Supreme Court justices ought to work. Tribe describes the slender volume as the product of years of research and reflection, but his urgent tone prompted Meese's spokesman, Terry Eastland, to suggest that the book be retitled, "God Save This Honorable Court From Ronald Reagan.' Although the product is more advocacy than scholarship, Tribe offers some genuinely fresh ideas deserving attention from combatants on both sides. He candidly concedes that the appointment process is political in nature but reminds us of the Senate's constitutional responsibility to provide "advice and consent' on the president's nominations. This duty forbids either a rubber stamp or unthinking opposition based only on partisan hostility. Instead, Tribe writes, the Senate must undertake a principled inquiry that includes investigation of both specific legal views and a larger sense of the Supreme Court's mission.

* God Save This Honorable Court. Laurence H. Tribe. Random House, $17.95.

Reading Madison's mind

It is impossible to discuss the selection of Supreme Court justices without addressing the perennial debate over how the Constitution ought to be read. Tribe's endorsement of the mainstream liberal position is concise and convincing. He rejects the philosophy of "strict constructionism,' which demands exclusive attention to--and literal interpretation of--the constitutional text. The blueprint for our political system provides only an ambiguous outline of the powers and limits of government. The terms themselves --"free speech,' "unreasonable searches and seizures,' "due process,' "equal protection'-- are so broad, that, in Tribe's words, they "not only invite but compel the Supreme Court to put meaning into the Constitution.'

Similarly, the ideas and goals of men such as Madison and Jefferson offer important insight into the meaning of the Constitution and its application to modern controversies. But as Tribe argues, the "intent of the Framers' cannot serve as a binding principle on which to base Supreme Court decisions. History does not reveal in most cases definitive accounts of how the Framers would have resolved questions now facing the Court. "The term "founding generation,'' Justice John Paul Stevens said in a recent speech, "describes a rather broad and diverse class. It included apostles of intolerance as well as tolerance, advocates of differing points of view in religion as well as politics.' The Framers themselves may not have intended the Court to try to divine their intent. The Annals of Congress of 1796 report that in James Madison's opinion, however "venerable' the Constitution's authors, what they merely thought or even said "could never be regarded as the oracular guide in expounding the Constitution.'

The relevant conclusion Tribe draws from his dismissal of absolutist arguments such as Meese's is that justices should not be selected merely on the basis of their pledging loyalty to strict constructionism or original intent. In this regard Tribe agrees with President Reagan, who, unlike Meese, has honestly expressed his desire to appoint justices who share his political outlook. Presidents are entitled to reshape the Court, Tribe writes, and they have often succeeded in doing so. Tribe quickly adds, however, that the Senate possesses the power to check this presidential authority and has exercised that power more frequently than we commonly assume. In rejecting nearly one out of five candidates, the Senate has opposed a higher proportion of nominees for the Supreme Court than for any other national office.

Back to the 19th century

How, then, ought the Senate go about its job of providing advice and consent? Tribe offers as initial topics for review a nominee's intellect, integrity, and legal skill. For all of the Supreme Court's grandeur, Trib points out, presidents have nominated an alarming number of cronies and incompetents over the years, only some of whom the Senate has bothered to oppose. Tribe applauds the 1970 rejection of Richard Nixon's nominee, G. Harrold Carswell, not only because of Carswell's racist views but also because he was a poor jurist, having compiled an almost unequaled record for being reversed by higher courts.

Shocking as it may be to some liberals, Tribe argues that in addition to competence and character, the Senate must examine a nominee's substantive views on law, as well as his philosophy of how a judge makes decisions. By means of such an inquiry, the Judiciary Committee and each senator will be able to establish broadly defined "outer limits' of acceptable judicial attitudes. This approach need not result in Democrats automatically voting against Republicans, liberals against conservatives. A wide range of constitutional opinion "should constitute the field within which the political branches necessarily maneuver,' Tribe writes. But at the extremes, a majority of senators should be able to agree that a nominee is unfit.

Although each senator must vote according to his own guidelines, Tribe offers some examples highly relevant to the current debate over the Court. One issue the Senate should explore is whether a nominee appreciates the inherent antimajoritarian spirit of the Bill of Rights and, more specifically, whether those amendments ought to apply to state and local governments. As originally framed, the Bill of Rights covered only federal officials; the plain meaning of the provisions makes that very clear. But in the 1920s, the Supreme Court began applying the first ten amendments to state and local authorities under a doctrine known as "incorporation.' Over the years, justices of all political stripes have affirmed that post-Civil War enactments, including the Fourteenth Amendment and other civil rights laws, were intended to guarantee "basic federal rights against state power.' Yet Attorney General Meese has invoked strict constructionism and original intent in urging that new justices free the states from the Bill of Rights. In a recent speech to the American Bar Association, Meese declared, "Nowhere else has the principle of federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation.' Meese would deny the Supreme Court a constitutional basis for prohibiting state and local officials from regulating the press, supporting a particular religion, coercing confessions, or suppressing books, all of which have been attempted by such officials and ruled unconstitutional under the incorporation doctrine. Ideally, an overwhelming Senate majority would forget party lines to defeat a candidate who would entertain the notion of reviving a nineteenth century view of federalism.

Equally unsuitable for the Court, Tribe writes, would be a nominee who favored overturning the landmark legislative apportionment cases and who denounced any role at all for the federal judiciary in preserving the principle of "one person, one vote.' A Reaganite strict constructionist might well throw out those decisions because the words of the Fourteenth Amendment do not specifically refer to suffrage. Conservative legal historian Raoul Berger, a favorite among administration officials, wrote recently in The Washington Post that the amendment prescribes only that if a state excludes male inhabitants from voting, its representation in the House of Representatives will be reduced proportionately. "The limited sanction,' Berger argued, "bars an inference that discrimination was prohibited altogether. . . .. [T]he framers unmistakabl[y] inten[ded] to exclude suffrage from federal control.' Such mechanical justification for overturning Supreme Court opinions that most of us view as fundamental to our understanding of the Constitution is certainly grounds for rejection of a nominee.

Tribe wisely explains that his approach to judicial selection would not rule out extremists only on the right. A communist who interprets the principle of equal protection under the law to require the abolition of private property and contract would be as unacceptable as any foe of incorporation. Likewise, the Senate would have to reject a candidate so determined to uphold a woman's right to have an abortion or to exclude prayer from public schools that he would ignore duly adopted constitutional amendments designed to reverse Supreme Court decisions on these matters. The Constitution clearly subordinates the Supreme Court's authority to the amendment power held by the Congress and voters assembled in state conventions.

Senators should be able to agree that any candidate nominated only because of his views on a handful of controversial issues is unfit to serve on the Court. "Knee-jerk attitudes, however sincerely held,' Tribe writes, "are profoundly antithetical to the judicial temperament.' Most justices will remain on the bench long after their sponsor has left the White House and will have to grapple with problems unanticipated at the time of their selection. Thus, a person nominated primarily because he would carry out the president's wishes on a narrow range of issues does not belong on the Court. Conversely, litmus tests, whether applied by conservative or liberal senators, are not an acceptable part of the appointment process.

A nominee must be prepared to explain not only his solutions to constitutional controversies but his philosophy as to how he would attack his work. For example, senators are obliged to probe a candidate's views on how to use precedent. In deciding constitutional cases, the Supreme Court, like any other court, must weigh innovation against the collected wisdom of previous decisions. Respect for precedent assures gradual development of constitutional principles and preserves public faith in the stability and legitimacy of the Court. Tribe argues that a nominee who would "feel no obligation at all to link present decisions to those that have already become part of our history' must be rejected. Traditionally, this warning would be viewed as one applying to overly "activist' liberal jurists. Today it is equally relevant in regard to conservatives who would throw out decisions such as Roe v. Wade without explaining why the reasoning of those opinions is faulty.

Burger Court activists

One of the key strengths of Tribe's book is that it reminds us of the deceptiveness of delicate distinctions between judicial "activism' and "restraint.' According to conventional wisdom, the liberal Warren Court was activist--and indeed it did pronounce new interpretations of the Bill of Rights. But the "conservative' Burger Court has demonstrated little restraint in decisions restricting the legislative power of Congress and enlarging the authority of the executive. In the 1983 case of Immigration & Naturalization Service v. Chadha, the Court struck down as a violation of separation of powers the "legislative veto,' a mechanism with which Congress had delegated authority to the executive but reserved the option of vetoing particular exercises of that authority. The decision invalidated more federal statutory provisions than the Supreme Court had struck down in the preceding two centuries.

Tribe makes a rhetorical error in insisting that all jurists are activists, differing only "in the nature and direction of their activism.' This phrasing may conjure up the image of federal judges running amok, without regard to practical and constitutional limits on their authority. People from all across the political spectrum can agree on the importance of caution and moderation on the part of unelected judges in a democracy. What Tribe is really driving at is that rather than focusing on simple-minded labels, the Senate should explore whether a nominee has a sense of what long-term direction the Supreme Court should take. Right or wrong, the Warren Court set a clear course for itself, one that involved considerable legal innovation. In sharp contrast, the Burger Court has employed a more pragmatic jurisprudence, one Tribe describes as "seemingly not guided by a substantive vision of a humane future but by a desire to moderate social conflict through compromise and accommodation.' One result of the Burger Court's approach has been a tendency to wobble between conflicting constitutional positions. Last term, for example, the Court overruled one of its own major decisions, a 1976 case pertaining to federalstate relations. Tribe would favor a revival of the spirit of the Warren era, and he contends that nominees should be equally frank in their critiques of the Court's collective philosophy.

Tribe's most quixotic proposal is that each senator should ask himself how the confirmation of a particular justice would affect the overall balance of the Court. He praises the pursuit of a "healthy mix of competing views' on the bench, urging the Senate to prevent the Court from becoming dangerously imbalanced to either the right or the left. As Tribe concedes, however, the president's natural desire to influence the Court makes ideally "balanced' nominations unlikely, while senators risk paralysis of the appointment process if they hold out for nominees they consider perfect. The Senate should also observe what we might call the Carswell Rule, which warns that presidents may respond to rejection of an adequate candidate with an abomination. In 1969 the Senate turned down Richard Nixon's nomination of southerner Clement Haynesworth. Several senators raised questions about a case in which Haynesworth had participated as a federal appellate judge even though he had a financial interest in one of the companies involved. Also opposed by labor and civil rights groups, Haynesworth nevertheless was, in Tribe's words, "a judge of some distinction.' In retrospect, even liberals such as Tribe agree that his "integrity may in fact have been unfairly denigrated' by Democrats eager to embarrass Nixon. The result was the nomination of Carswell, a legal lightweight and a bigot to boot.

Preachers on either side

Sadly, Tribe's impressive argument contains a major flaw. Like theorists in so many fields, he constructs a sound procedural approach to complex questions and then assumes that his are the only legitimate answers. Having contended that his outer limits provide plenty of room for disagreement on particular topics of substantive law without requiring rejection of a nominee, Tribe changes the rules for the civil liberties issues dearest to his heart: free speech, civil rights, and sex discrimination, among others.

In each of these areas, Tribe holds views that can only be described as extreme. Nominees who do not share his expansive view of "symbolic expression' protected by the First Amendment "could well propel the Court over the cliff on which it is precariously perched.' Tribe has no patience for anyone who is less than wholehearted in his support of affirmative action; hesitation over problems such as reverse discrimination would put constitutional liberties "in serious jeopardy . . .' and so on. Surely these are topics well within the realm where reasonable people differ and where the Supreme Court must continue to move cautiously. Tribe's alarmist preaching is no different from that of his opponents on the right who predict the decline of Western civilization unless children are permitted to pray in homeroom. In the end, the professor from Harvard only confirms how difficult it is to take up arms on the constitutional battlefield and still keep a cool head.
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Author:Barrett, Paul M.
Publication:Washington Monthly
Article Type:Book Review
Date:Dec 1, 1985
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