POLITICS MAY 10, 1993
The White House has expanded its search for the next Supreme Court justice; and it is now possible to evaluate the scholarship, opinions and constitutional vision of the candidates. All are able federal judges. But some are more proficient than others at textual and historical analysis, and so better equipped to win over the swing justices and to challenge the Court's most aggressive intellectual, Antonin Scalia, on his own terms. In ascending order:
Mary M. Schroeder, 52. U.S. Court of Appeals, Phoenix, Arizona. According to Ninth Circuit legend, Schroeder was a reliable liberal in criminal cases until she was mugged near the steps of the U.S. courthouse; she then became more moderate. She tends to avoid the partisan squabbles that have divided the circuit. Instead, her passion is for efficiency: her liberal colleague, Stephen Reinhardt, reportedly accused her of "numbers fetishism" when she calculated that the Fifth Circuit processes cases more quickly than the Ninth. Schroeder's most important opinion, Flores v. Meese (1991), struck down the ins's policy of detaining the children of aliens in prison camps until their relatives claimed them. Unfortunately, Schroeder's reasoning was so muddled that several of her allies were forced to write separate concurrences; the Supreme Court, 7-2, reversed the decision last month. If she has an overarching constitutional vision, it is difficult to detect.
Amalya L. Kearse, 55. U.S. Court of Appeals, New York City. According to another legend, more likely apocryphal, Kearse was introduced to Nathaniel Jones, a Cincinnati appellate judge and former civil rights lawyer. "Can you bring me up to speed on Section 10b(5)?" -- a key provision in corporate law -- asked Jones. "Yes," Kearse supposedly replied, "if you'll bring me up to speed on section 1983" -- a key provision in civil rights law. As the anecdote suggests, it is not clear why Clinton, who values life experience so highly, would be drawn to a competent corporate lawyer. Although colleagues speak generously of her lack of "partisan affiliation," rumors persist that the Carter appointee may be a moderate Republican. Her opinions, like her manner on the bench, are careful and reserved.
Stephanie K. Seymour, 52. U.S. Court of Appeals, Tulsa, Oklahoma. The Tenth Circuit is among the most collegial of circuits; and though Seymour is one of only two consistent liberals, she has a good record of getting along with her more conservative colleagues. A former Tulsa lawyer and author of a book about public housing in Waterbury, Connecticut, she has distinguished herself as an aggressive questioner. Her opinions reflect case-by-case realism more than an overarching philosophy, but she showed an expansive streak in a 1990 decision declaring that it is cruel and unusual punishment to put non-smoking prisoners in the same cell as smokers. Although she stands out on the Tenth Circuit, Seymour has not, over the past fifteen years, developed a national reputation.
Jose A. Cabranes, 52. U.S. District Court, New Haven, Connecticut. A photograph of Roger Baldwin, founder of the ACLU, is framed in his home study; but in some cases Cabranes's instincts appear to be more pro-government than libertarian. In a 1982 article, Cabranes criticized William Rehnquist and William Brennan for encouraging courts to rely on state constitutions. Federal judges should not forsake their responsibility to protect individual rights, Cabranes argued, and "national needs must be met by national action." At the same time, Cabranes has called the federal sentencing guidelines a "dismal failure" because of their effort to impose a national policy on federal judges. In 1988 Cabranes tried to strike down the sentencing guidelines as a violation of the separation of powers. Cabranes's main scholarly work is Citizenship and the American Empire, a study of the Jones Act of 1917, which made Puerto Ricans American citizens.
Richard S. Arnold, 57. U.S. Court of Appeals, Little Rock, Arkansas. In addition to being Clinton's closest friend on the federal bench, the chief judge of the Eighth Circuit is, objectively, a star. A former candidate for Congress and legislative assistant to Senator Dale Bumpers, Arnold has written two serious law review articles arguing that state courts should have the power to enjoin federal officers who violate federal constitutional rights. Women's groups have already targeted a 1983 opinion in which Arnold refused to apply a Minnesota sex discrimination statute to the U.S. Jaycees. Arnold held -- plausibly, at least -- that the law violated the Jaycee's First Amendment right to freedom of association; but he was reversed by the Supreme Court, in an opinion written by his former boss, Brennan. Arnold was less of a textualist in a 1990 dissent, arguing expansively that "the right to name one's child" should be covered by the right to privacy.
Stephen G. Breyer, 54. U.S. Court of Appeals, Boston. The chief judge of the First Circuit has taught antitrust, administrative law and economic regulation at Harvard since 1965. He became a protege of Senator Edward Kennedy as chief counsel of the Judiciary Committee, where he won the trust of Senate Republicans and helped build a political coalition for airline deregulation. A forthcoming book will address the problems of regulating health risks. The most powerful theme that runs throughout Breyer's writing is pragmatism. He has defended the use of legislative history, and the Sentencing Guidelines (which he helped to draft), on the grounds that law is "properly subject to praise, or to criticism, in terms of certain pragmatic values." At the same time, he is capable of rigorous textual analysis, as he showed in a 1983 case -- unconvincingly reversed by Rehnquist -- in which Breyer held that the Reagan administration's restrictions on travel to Cuba violated Congress's intentions.
Ruth Bader Ginsburg, 60. U.S. Court of Appeals, Washington, D.C. "If you had to spend the rest of your life on a desert island with Laurence Tribe or Mario Cuomo, which would you choose?" Antonin Scalia was asked at a recent lunch with clerks at the federal courthouse in Washington. "Ruth Bader Ginsburg," Scalia replied. Scalia's esteem for Ginsburg is hardly based on political agreement; for Ginsburg can plausibly be described as the Thurgood Marshall of the women's rights movement. She was the first woman appointed professor of law at Columbia; and as the general counsel of the ACLU's Woman Right's Project from 1972-80, she persuaded the Supreme Court, in six landmark oral arguments, to grant heightened constitutional scrutiny for gender discrimination. Ginsburg also supplied the (controversial) constitutional arguments for extending the ratification deadline for the Equal Rights Amendment. Along with Patricia Wald -- who turns 65 this year and appears to be under less serious consideration because of her age -- Ginsburg has become the most respected judge on the D.C. Circuit. But she is considered slightly more moderate than Wald, who puts less emphasis on collegiality. Although firmly pro-choice on abortion, Ginsburg has an intelligently nuanced view about the constitutional issue posed by Roe v. Wade. In her Madison lecture at New York University last month, she argued that the Court should have simply struck down the extreme anti-abortion law presented in Roe, rather than create a rigid set of rules that displaced every state abortion law in the nation and choked off the legislative momentum in favor of liberalization. Roe might have been less controversial, Ginsburg argued, if it had invoked the reasoning of the gender discrimination cases: "disadvantageous treatment of a woman because of her pregnancy and reproductive choice is a paradigm case of discrimination on the basis of sex."
Of all the candidates, Ginsburg is the most respected both by liberals and conservatives. Her scrupulous position on Roe represents Clinton's best opportunity to cut the Gordian knot of the litmus test; and she is the candidate most likely to win over the swing justices in memos and at conference. The only concern about Ginsburg is that she might become too friendly with the mushy middle. But although she has been willing to compromise on minor details, her core positions -- on broad access to the courts, freedom of religion and speech and gender equality -- are models of principled liberalism. Her nomination would be one of the most acclaimed since Felix Frankfurter, who turned Ginsburg down for a clerkship in 1960 on the grounds that he wasn't ready for a woman. Now, we are.