FOR THE SUPREME COURT'S SAKE
By Peter G. Verniero
There is a widely held belief in legal circles that within the next four years the president will be given the opportunity to appoint as many as four justices of the Supreme Court. That is a staggering number, one that can shape the court for a generation.
Political partisans on both sides no doubt view this as the opportunity to appoint jurists who can swing the court to a favored position on such issues as abortion rights, gay marriage and the placement of "God" in the flag's Pledge of Allegiance. The partisans are wrong.
To be sure, the court increasingly decides cases by 5-4 votes, a signal the court is on the cusp of change should even a single justice retire. A shift either to the right or left could result in a dramatic alteration of federal jurisprudence.
Where the partisans err is in their belief that the whole of American law turns on hot-button issues. In reality, those subject make up a fraction of the judiciary's docket.
The Supreme Court is more likely to consider mundane questions such as standing (the right of parties to bring suit) than the so-called wedge issues that legal pundits so fervently debate on the nightly talk shows. In fact, the court cited its standing rules in disposing of the most recent flag-salute dispute out of California. Thus we are best served by Supreme Court appointees who possess the skills to make reasoned judgments on a host of subjects.
Chief among those traits is intellectual integrity: the ability of a judge to view the facts in an unbiased fashion and measure them against the applicable law. Or, if the law is unclear, the ideal jurist will meticulously review a statute's history and purpose to discern the sometimes elusive but all-important legislative intent. I would rather see nominees evaluated against the standard of intellectual integrity than have them scrutinized from the sole perspective of how they would decide the wedge issues of the day.
Another necessary skill is the ability to write clearly. The Supreme Court (like all appellate courts) is in the business of deciding cases and explaining its rationale. When it performs that task by presenting well-reasoned opinions, the court fosters respect for itself as an institution. Such opinions help the court maintain its legitimacy even when reasonable minds disagree with the outcome in particular cases. The irony, of course, is that even if we probe and seemingly unmask a nominee's political leanings, they are not a sure predictor of that person's jurisprudence. Consider Earl Warren. He was intended by President Eisenhower to be a "safe" Republican jurist but did more to create the court's liberal legacy than any other chief justice in modern history.
My advice to both the Bush and Kerry camps is to think of future justices in terms of their ability to decide clearly, honestly and fairly the important questions that will confront them. And persons with judicial temperament - the ability to treat litigants and their lawyers respectfully - wouldn't hurt, either.
The prospect of the candidates heeding this advice in today's charged political atmosphere borders on a utopian dream. But it is a goal worth pursuing given the huge stakes involved.