Credentials Are Fine, but Values Matter, Too
Thus sayeth the high priests of far-right conservatism: To be worthy of appointment to the Supreme Court, a nominee must be scholarly, a great intellect and a possessor of sterling conservative credentials. In addition, the nominee should come equipped with a well-established constitutional philosophy, experience in constitutional law and the ability to divine what the Constitution means through analysis of its words and structure. In addition, they say, the nominee must have a proven ability to write clearly, argue incisively and have well-known opinions on judicial philosophy.
Unspoken, but well understood, is that to be short-listed it certainly doesn't hurt to be white, male and straight. By those standards, what kind of men would have found favor with the high priests?
Consider John W. Davis, the dean of constitutional lawyers of his day. Davis had the proper grounding: He graduated from the Washington and Lee University law school, participated in more than 250 Supreme Court cases and argued 140 cases before the court. An appellate lawyer without peer, Davis was a former congressman from West Virginia, served as the U.S. solicitor general and U.S. ambassador to Great Britain, and was the Democratic nominee for president in 1924.
Davis entered the Brown v. Board of Education case on behalf of South Carolina. This constitutional giant and lawyer of enormous analytical powers stood before the Supreme Court in December 1953 and argued that racial segregation was not only constitutional but also better for blacks. Defending the "separate but equal" doctrine in Plessy v. Ferguson, Davis proclaimed to the justices: "Somewhere, some time, to every principle there comes a moment of repose when it has been so often pronounced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance." Fortunately, the Warren Court, examining the Constitution, saw otherwise and in 1954 outlawed segregation -- Davis's legal brilliance notwithstanding.
Davis's team of lawyers also consisted of men who could easily pass the litmus tests of conservatism's high priests. There was James Lindsay Almond Jr., Virginia's attorney general and a former judge and legislator from Roanoke. A University of Virginia law school graduate, Almond went on to become governor of Virginia, where he put his segregationist sentiments to full use.
Joining Davis and Almond was the District of Columbia's own Milton Korman, who defended racially segregated schools in the nation's capital. Korman also had the kind of background today's conservative connoisseurs of fine legal minds would embrace. A graduate of Georgetown University's law school, Korman had served as the city's chief legal officer, or corporation counsel, before joining the school desegregation case on the side of those not wanting white children to attend school with African American children. Korman contended that only Congress could deal with segregated schools, that the District was beyond the reach of the Supreme Court and that D.C. schools were segregated not out of racism but out of concern for black students who otherwise would have been forced to attend classes in a hostile environment. The Warren Court found Korman wrong, too.
But we don't have to go that far back to discover that something vital is missing in the list of attributes that conservatives hold so dear.
Consider the example of Robert H. Bork, the conservative icon whose defeat for a Supreme Court seat in 1987 by a 58 to 42 Senate vote still causes conservatives pain not to be borne. By their lights, Bork had it all. Certifiably conservative, intellectually audacious and thoroughly schooled in constitutional law, he had a seasoned and tested legal career starting with the University of Chicago law school and going on to partnerships in major law firms, the Yale law faculty, service as U.S. solicitor general, and appointment as a judge on the U.S. Court of Appeals for the D.C. Circuit. Bork was everything that they could want in a Supreme Court justice.
What they wanted, however, was found wanting by Bork's opponents. The same deficiency, by the way, seems to exist with others on the short list of judicial possibilities maintained at the White House and within conservative legal circles.
Here I draw, as deputy editorial page editor, on the reasoning in The Post's 1987 editorial opposing the Bork nomination. The Bork criticism could apply to many of the lawyers and judges who pass the high priests' tests with flying colors.
It wasn't Bork's conservatism or his challenge to prevailing legal orthodoxy that did him in. Nor was he an ogre or Neanderthal, as some of his opponents mischaracterized him. But Bork, as with other controversial judicial picks of President Bush, seemed to come to the bar with, as The Post put it, "an almost frightening detachment from, not to say indifference toward, the real-world consequences of his views; he plays with ideas, seeks tidiness, and in the process does not seem to care who is crushed."
Lawyers and jurists such as that -- John Davis and Robert Bork (and possibly Chief Justice John Roberts and Judge Samuel Alito?) -- are brilliant and have a feeling for the law. But what about a feeling for justice? Do they even see injustice? And if so, do they believe that the power of the Supreme Court should be used to remedy injustice? Do they read the Constitution generously?
Missing from the litany of legal virtues approved by the high priests is any expression of values, any awareness of the court's leavening role in society, any recognition of the court as a bulwark against the majority's worst instincts. They seem to think it wrong for a judge to search for a constitutional way to "to help, or at least protect, those [who] have a moral claim on the society," to use The Post's language in a second editorial on Bork that year.
Those values were lost on the defenders of segregation, who undoubtedly were professionally qualified and faithful to their profession's ethical standards. Lost on those standard-bearers for racial separation, however, was how much the outcome of what they sought to achieve in court really mattered to people for whom the Bill of Rights and the 14th Amendment still lacked fulfillment.
What about justice? What about relief?
Notwithstanding the norms of the high priests of conservatism, prospective Supreme Court justices, I humbly submit, must be judged as well by the values that they bring to bear.