The Importance of Judicial Firepower

Some of you have taken issue with my amended position on Harriet Miers—that the Senate should defeat her nomination in hopes that the person Bush names as successor will be from the list of highly qualified jurists that he considered but passed up. Why, if she is in fact pro-life, should she be nixed? Because the role of a jurist, in attempting to bring the Court back to sanity, must have more weight than just his/her own vote. In a very real sense, even Chief Justice Rehnquist while possessing laudable credentials, did not have the persuasive weight to convince many of his colleagues (apart from Scalia and Thomas) to effect that change.

Rehnquist in his book, The Supreme Court, tells of the first day he served as a clerk to Justice Robert Jackson. Jackson asked him: “What is the most important number to keep in mind as we deal with the Court?” Rehnquist was puzzled and thought back through the numbers of Constitutional amendments and the numbered cases on the docket. He was struggling with the answer when Jackson held up five fingers. “It is five,” he said, “five votes of the nine to get a majority.” Actually, Rehnquist was a very good Chief because he could get along with his colleagues, but in my estimation he was not a great Chief because he didn’t sway many beyond his ideological confines. Example: Sandra Day O’Connor idolized him, wept at his funeral but she followed her own drummer on key issues. Old Bill was a great guy, very considerate and from Arizona as she was but on the issues? For some reason, he didn’t build a following even among the Republicans on the Court.

Chief Justice Roberts, whose legal scholarship is reputedly higher than that of Rehnquist, may have better luck in conservatizing the Court. It comes down to intellectual firepower. Anyone who studies the history of the Court, including the book, Becoming Justice Blackmun, written by the aptly named Linda Greenhouse of The New York Times, and The Brethren by Bob Woodward, learns that the Court is not unlike other groups, where natural leaders assume precedence and intimidate lesser minds. Harry Blackmun is a case in point. He and Warren Burger went to the same St. Paul high school and stayed close friends throughout their youth. Burger, the more political of the two, was named to the Court by Richard Nixon and wrote Blackmun that his fondest dream was that they would both serve on the same court together. He worked doggedly to get Blackmun named and was successful.

Named by Richard Nixon as a thoroughly conservative jurist, Blackmun, the former Mayo Clinic general counsel, soon found himself treading in deep intellectual water on the Court. Insecure, painfully slow at writing opinions, somewhat overshadowed by the more political stature of his once great and good friend Burger, Blackmun was subtly taken into camp by two liberals on the Court whose power put him in thrall: William O. Douglas and William Brennan, both of whom were far more powerful intellects. They worked him over like Iago did Othello, first with heady flattery, telling him that he was, in fact, as smart as they which seduced him, then injecting the poison that Burger expected Blackmun to tag along after him like a lackey, insisting that Blackmun should be too independent a jurist to be the lesser half of the “Minnesota Twins.”

In the conference on Roe v. Wade, Blackmun’s halting approximation of his views on abortion led Burger, whose views were similar, to assign the majority opinion to Blackmun, hoping to guide the writing of the draft that way so as to get a narrow construction. When he got the assignment, both Douglas and Brennan told the wobbly, pathetically insecure Blackmun that they had every confidence that he would write one of the great decisions on human rights which would ring through the pantheons of time. Intimidated by that flattery, not wishing to disappoint, Blackmun wrote his decision, spinning out “emanations” and “penumbras” that legislated an entirely new right which was not contained in the Constitution. From that time on, Blackmun was owned by them and became overnight an electric voice in behalf of ever-to-be enunciated new rights.

For a man who was best man at Burger’s wedding, Blackmun didn’t even attend the funeral of his once old friend. Also there was the “Greenhouse effect,” the adulation from The Times Greenhouse, no slouch of an intellect herself, who builds up heroes and villains as she reports the Court for her newspaper. Another key case: Anthony Kennedy. He started out as a conservative jurist, was taken into camp by Brennan, courted by Breyer and written up as a man of great intellectual “growth” with the Greenhouse effect. Now he’s invited overseas to talk to foreign jurists and is applauded for his willingness to apply international law to our jurisprudence.

In short, even if Harriet Miers is everything Bush says, a tough lady with inflexible views on certain things, she will in all probability be one vote. We need a powerhouse who can sway votes and joust with the libs in the sense that Scalia can and to some extent (though he is of a reticent nature) Thomas can. Scalia for all his brilliance is a short-fuse who says the hell with it and writes scathing opinions that mock his liberal colleagues. Fine, but we don’t exactly need that either because it doesn’t get votes.

The ideal Chief was Marshall who had the firepower and also insisted that the entire Court take rooms at his boarding house. Thereupon at dinner, pouring them many a glass of port, he worked on his colleagues including Bushrod Washington, nephew of the first president. We can’t get all the Justices to live at the same boarding house these days or all drink port but if we’re going to turn the Court around, we’ve got to have not only votes but firepower. Ms. Miers may in fact be a living embodiment of Clarence Darrow but so far all I’ve heard is that she’s a quiet lady who very well may be pro-life and is a workaholic. The others who Bush passed up have the power of powerful reasoning strength. Bush cites diversity in his pick. Surely we’re beyond that, now, else we would be naming as Justice a black nun from Alabama with an Hispanic surname. I would rather have him go to the list of superb intellectual jurists in his rolodex. (One thing that haunts me: if Miers is defeated because of a dearth of conservative Senate votes, the next pick may also evade intellectual firepower and go to diversity—Alberto Gonzales—who would be the first Hispanic and whose position on Roe is lukewarm. Oh well, we are all haunted by our personal nightmares.)