BOOKS MAY 2, 1970
The Founding Fathers, who met in the summer of 1787 to draw up a Constitution for the United States, gave relatively little attention to the judiciary. Clearly they had only a hazy notion of the vital role the judiciary was to play in umpiring the federal system or in limiting the powers of government. Article III of the Constitution says nothing whatever about the qualifications of judges, or about the mechanics of choice. Indeed it says practically nothing about the mechanics of the judicial system itself. There shall be a Supreme Court—that is the whole of that—and “such inferior courts as the Congress may from time to time establish.” The Constitution does not specify the number of judges who are to compose the Supreme Court, or their qualifications, if any, and it describes the duties and functions of the Court only in general terms. Not Article III, but Article II, dealing with the executive, provides for the appointment of justices: The President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” That is the whole of it.
The discretion of the President here is limited only by his anticipation of such “advice and consent” as may be forthcoming from the Senate. The Constitution, which places some qualifications on other officeholders—the President, for example, must be thirty-five years of age and born in the United States, senators must be thirty years of age, and nine years a citizen of the United States, and so forth—is wholly silent about the qualifications of judges. As far as the Constitution is concerned a judge of the Supreme Court could be foreign born (he need not even be a citizen), twenty-five years old, and wholly without legal training or experience.
It is against this background that we should consider what might be called the Eisenhower-Nixon theory of judicial appointments. President Eisenhower, in his Memoirs—Mandate for Change: The White House Years—submitted four principles, or criteria, which should be observed in appointments to the Supreme Court. First, every nominee under consideration should be thoroughly investigated by the FBI and given “security” clearance. Second, no one should be appointed who holds “extreme legal or philosophical views.” Third, each appointee should be vetted by the American Bar Association, and fourth—and most important—appointees should be drawn from the inferior federal and state courts.
President Nixon has now explicitly endorsed two of these criteria and implicitly sanctioned the other two. He has asserted that he will make his choices from the inferior federal and the state benches; he has gone on record as opposing any person with “extreme” liberal views—whether he is prepared to extend his disapproval of extremism to conservatives is not clear. He has relied—not very successfully—on “security” and other clearances and he has—again by implication—approved of and endorsed the role of the American Bar Association in the process of selection.
Now what shall we say of these criteria, so suddenly emerging on the American constitutional scene? The first and obvious thing to say is that they are unknown to the Constitution and, until Eisenhower, to history. They are therefore a radical departure from American constitutional law and practice and, too, a radical abdication of the Presidential prerogative—something Mr. Eisenhower may have been prepared to accept, but whose acceptance by President Nixon is quite out of character. To permit the FBI to substitute its judgment of the character and qualifications of a candidate for the judgment and discretion of the President is astonishing; to permit a private, or semi-public, organization like the American Bar Association a kind of veto power over the Presidential decision is an aberration. Mr. Nixon, who just the other day rebuked the Senate for exercising its constitutional right to advise and consent and who proclaimed (in his letter to Senator Saxbe) the principle that the Senate had a moral obligation to accept his appointees, is now prepared to concede to a minor government bureau with no experience or expertise in this arena, and to a private organization unknown to the Constitution or to law, a veto power on appointment to the highest bench. Are we now to anticipate an American Bankers Association veto on appointments to the Treasury Department, an American Legion veto on appointments to the Defense Department, or a Chamber of Commerce veto on appointments to the Commerce Department?
More serious are the philosophical and practical limitations which President Eisenhower was and President Nixon is now prepared to embrace. Consider first the philosophical. “No one” wroteMr. Eisenhower, “of extreme philosophical views” should be appointed to the Bench. What are “extreme philosophical views” deponent saith not, but we may assume thatMr. Eisenhower, who was not given to fine distinctions, meant by this esoteric phrase extreme radicals or extreme conservatives—terms which do not necessarily have anything to do with philosophy. But this, alas, does not get us very far. For extremeness is, after all, in the eye and the mind of the beholder. At one time or another Presidents have thought most of the great Justices “extreme.” John Adams had the highest regard for John Marshall, but Jefferson thought him dangerously extreme and, after Marbury v. Madison, was prepared to entertain proposals of impeachment. Madison thought Joseph Story a moderate, but Jefferson warned that he was “unquestionably a tory.” Salmon Chase was an extreme abolitionist who had argued, in Court, that there was a Law higher than the Constitution, and who had helped break up a political party, but in the eyes of Abraham Lincoln—who made him Chief Justice—hewas a moderate. Theodore Roosevelt, who wanted only ardent nationalists on the Court, concluded rather wildly (after Holmes’s dissent in the Northern Securities case) that Holmeswas a weakling; “I could carve out of a banana a justice with more backbone than that,” he said. President Wilson did not think Louis Brandeis extreme, but a substantial segment of the American bench and bar did, and tried desperately to block his confirmation. Felix Frankfurter was thought by the public—and the Senate—to be an extreme philosophical radical, and so were other Franklin Roosevelt appointees like Hugo Black and Frank Murphy, who as governor of Michigan, had countenanced the first sit-down-strikes.
Perhaps the simplest thing to say about this notion of the danger of extreme philosophical views is that to nonphilosophical minds anyphilosophical views will seem extreme, and that in the circumstances the country is pretty lucky to get a judge with any philosophical views at all.
More important than any of these criteria is the fourth qualification, one which Mr. Nixon has not only endorsed but (unlike President Eisenhower) adopted: that all appointees should be selected from theinferior federal or the state courts.
The first thing to note here is that the Constitution makers clearly did not contemplate any such limitation. The original plan—one to which they returned again and again during the first two months of the debates, was to assign to the Senate (or to Congress) authority to appoint judges, and efforts to transfer this power to the executive were repeatedly defeated. Only towards the close of the Convention was the power of appointment transferred to the President and the Senate—a change made without any recorded discussion.
In the course of the summer-long debates almost the only specific suggestion about qualifications for judges came from the venerable Franklin, and was sportive rather than serious: “Mr. Franklin observed that the two modes of choosing the judges had been mentioned, to wit, by the legislature and by the executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point ofgreat moment. He would mention one which he had understood was practiced in Scotland. He then in a brief and entertaining manner, related a Scotch mode in which the nomination proceeded from the lawyers, who always selected the ablest of the profession, in order to get rid of him, and share his practice among themselves.”
Certainly the notion that Supreme Court judges should be selected from inferior federal tribunals was absent from the minds of members of the Convention, for they did not provide for such inferior tribunals, but left the creation of these entirely to the discretion of Congress. As for selection from the state courts, about all that can be said here is that when it came to appointing the original justices, Washington did in fact select a majority of his judges—ten in all—from the state courts.
Whatever may have been the thoughts of the Founding Fathers, experience does not justify in any way the kind of limitation Presidents Eisenhower and Nixon have proposed for nomination to the Court. A qualification of previous judicial experience, had it been written into the Constitution, would have denied us the services of a majority of our Chief Justices (and, we should add, the best of them); neither Marshall nor Taney, Chase nor Waite, Fuller nor Hughes, Stone nor Warren, had any judicial experience before ascending to the Chief Justiceship. This generalization is valid, too, for many of the most distinguished associate justices of the Court: thus Joseph Story, John McLean, Benjamin Curtis, John Campbell, Joseph Bradley, the first John Harlan, Louis Brandeis, George Sutherland, and Hugo Black, while Lucius Q. C. Lamar, Charles E. Hughes, Felix Frankfurter, Harlan Stone and Wiley Rutledge—all without judicial experience—had taught at distinguished law schools. A qualification which would have denied us the services of these men does not commend itself to us at a time the need for judicial statesmanship is as acute as at any time in our past.
What should be the criteria for appointment to the Supreme Court?
Judges of the United States Supreme Court are required—the word is dictated even more by history than by the constitutional document—to fulfill responsibilities heavier and more far-ranging than are judges of any other country on the globe. Their task is neither strictly legal or political, in the accepted meaning of those terms; they are called upon not so much to expound the law, as to expound the Constitution; they are engaged, willy-nilly, not in politics but in statesmanship of the highest order. Upon them the Framers, and History, laid responsibility for adapting a document designed to embody 17th and 18th century ideas of the relations of men and government, to the exigencies of a rapidly growing industrial society; for umpiring the federal system; and for educating the whole American people—including Presidents and congressmen—to the meaning and the uses of the Constitution. It is as astonishing as it is gratifying that they have performed their tasks so well; indeed to the role of the Supreme Court we can apply the felicitous phrase of Winston Churchill: never before in the history of law has so much been owed by so many to so few.
Clearly the qualifications necessary to the performance of these exacting and importunate tasks are of a very special nature. It speaks well for the resourcefulness of the American mind and character that it has, in every generation, found men who could perform them with distinction, and with success.
What are some of the talents which appear to be requisite for service on the Supreme Court?
First, legal erudition is, of course, desirable, but there is little evidence that it is essential, and little correlation between legal erudition and judicial greatness. Justice Story was more erudite than John Marshall. Sutherland knew more law than Chief Justice Hughes, Frankfurter was more learned in the law than Chief Justice Warren, but Marshall, Hughes and Warren were all more effective on the Court than their more learned brethren.
Courage and independence are, of course essential, but should be taken for granted. After all judges enjoy the independence that is rooted in the principle of the separation of powers, and the security that is assured by tenure; ideally they enjoy immunity from the kind of vulgar assault which Rep. Gerald Ford has now launched against the distinguished Justice Douglas. What is more, judges have, by now, a long tradition of successful resistance to pressure or intimidation: it is almost an axiom of judicial history that no President can count on the judges he appoints.
The ideal judge needs other qualities besides learning and courage. Perhaps the most important, as the most elusive, quality is, quite simply, judiciousness—the ability to judge issues dispassionately and impersonally. This means that the judge is to represent neither party nor interest nor section, but the Constitution. President Washington, to be sure, began the practice of appointing judges to the Supreme Court from their own section. There were practical reasons for this: in the beginning (and until 1869) judges were required, quite literally, to “ride circuit,” and it could scarcely be expected that a judge from New England could ride circuit in Virginia or the Carolinas, or—as the nation expanded, a judge from Georgia ride circuit in Indiana and Illinois. With the passing of this onerous requirement the rationale of geographical appointment disappeared. It can scarcely be argued that there is an eastern and a western and a Pacific Constitution, a southern and a northern Constitution. There is one national Constitution and there should be one national law. No judge should be appointed to the Supreme Court primarily because he comes from a particular section of the country. As Senator Borah said when the appointment of Benjamin Cardozo to the Supreme Court aroused opposition because New York already had two judges on that Court: “Cardozo belongs to Idaho as much as to New York.” It is an observation President Nixon should take to heart.
Nor is there any compelling reason why racial background, party affiliations, or presumed economic philosophy should play a decisive part in the appointment or the confirmation of judges to the highest court. Indeed if there is any one place in the broad arena of American politics where these considerations should be excluded, it is the Court. We do not want judges who confess a regional view, a partisan view, a racial view, or an economic view; we want judges who express a commonwealth view. This may be a counsel of perfection, but if we are allowed to strive for perfection anywhere, it is in the judiciary.
It is improbable that any judge can ever emancipate himself completely from what Justice Holmes called his can’t-help-but-believes. Holmes himself, who argued that the Court should be “eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death,” allowed his ardent nationalist sentiments to influence some of his most powerful opinions, and his natural elegance and fastidiousness to color some of his most famous. Yet the recognition that judges are human should not for a moment abate their zeal, or ours, for an ideal of reason and justice that is above and beyond the beguilements of private interest.
Judicial temperament is essential, but it is not enough. Equally important are broad and generous social sympathies, sensitive to and responding to the felt needs of society. “The man of the future,” said Justice Holmes, “is the man of statistics and the master of economics.” But there is more to it than this. What is called for, in the great judge, is an affluent mind—a mind familiar with and responsive to art and literature and philosophy. “Life is painting a picture, not doing a sum,” said Justice Holmes, who has some claim to be the most distinguished figure ever to sit on the Supreme Court. Justice Story wrote poetry (rather bad poetry, alas), read all the current novels, and dazzled his classes at the Harvard law school with his vivacity and wit; Justice Brandeis’s mastery of law, economics and sociology was illuminated by a passion for social justice, and reverence for the great traditions of religion and literature; Justice Cardozo, who observed that a judge must be “historian and prophet” and whose “beautiful intellect and character” (the phrase is Holmes’s) impressed itself upon all of his associates, wrote with felicity on Law and Literature.
The greatest of our judges have been deeply versed in the history, rather than in the technicalities, of the law, and have recognized that mastery of the history emancipates from slavery to the technicalities. Thus the learned James Wilson pointed out, in the first important case to come before the Supreme Court, that America had broken with history and was thus able to shift sovereignty from state to people. Thus John Marshall, who said that “a constitution is framed for ages to come and is designed to approach immortality as nearly as any human institution can approach it,” formulated his philosophy of national law and national unity on the basis of familiarity with failures of all confederations and alliances of the past. Thus Holmes, whose every opinion was quickened by a profound knowledge of the common law, said that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV” and argued that “the first call of a theory of law is that it should fit the facts,” wrote that for those who love the law, “no less a history will suffice than that of the moral life of his race…Nor will his task be done until, by the farthest stretch of human imagination he has seen as with his eyes the birth and growth of society and by the farthest stretch of reason he has understood the philosophy of its being.”
This brings us to a fourth qualification for the highest Court: resourcefulness and imagination—the resourcefulness to find in the elusive phrases of the Constitution authority for making it an instrument rather than a limitation, and the imagination to foresee the direction which the law and the Constitution must take if the Constitution, and the nation, are to “endure for ages to come.” Marshall displayed this kind of imagination when he seized on a dispute over control of steamboats on the Hudson to lay down the great principles of federal jurisdiction over interstate commerce which still obtain. Justice Story revealed it when he created an admiralty law for the United States and when, in the great case of Swift v, Tyson, he emancipated much of the economy from the restrictions of state law by creating a national commercial law. Justice Harlan had it when, 80 years ago, he foresaw the danger of the “separate but equal” doctrine and called for a Constitution which was “colorblind.” Justice Holmes had it when he provided a philosophical basis for the principle of judicial continence; Justice Brandeis had it when he harmonized the principles of sociological jurisprudence with the Constitution; Justice Stone had it when he used a footnote in an unimportant case (Carolene Products) to solve the dilemma of judicial self-restraint in economic issues and judicial activism where the preservation of the integrity of the democratic process was at stake. In our own day Justice Warren has revealed resourcefulness and creative imagination in channeling revolutionary social and political changes into the conduits of the Constitution.
Finally, as the Supreme Court is the greatest and most effective of our educational institutions, the judge should be a great teacher. The Constitution has not imposed this function of education upon the Court, but history has. For 170 years judges have been engaged in what is surely the most remarkable educational enterprise in the history of politics—that of explaining to a vast and heterogeneous population the nature of the Constitution and of law, of federalism and nationalism, of executive power and legislative power and the limits on power, of due process and justice, and of a hundred other profound and fundamental concepts. The whole country, and not our country alone, has come to look to the Court for the performance of this function, until we can say that upon the wise performance of this duty rests in considerable part our chances for survival as a nation. It is too late now to reopen the question whether all this is a proper judicial function, as it is too late now to reconsider the propriety of judicial review: history has placed a statute of limitations on these questions.
One essential qualification of a judge then is that he be a great teacher of the law, of politics, of constitutionalism and of philosophy. No mere skill in the law, no accident of representing a section, a party, an interest, no qualities of charm, of goodwill, or even of virtue, can be a substitute for this quality of ability to educate a great democratic people to the nature of law. What is needed here is profound wisdom, an affluent mind, and a magnanimous character.