By Ruth Marcus
Wednesday, October 6, 2010; A19
Just in time for the opening of the Supreme Court's new term arrives a biography of one of history's most influential justices.
The subtitle chosen by Seth Stern and Stephen Wermiel for their book about William J. Brennan Jr. is telling: "Liberal Champion." There are sitting justices who are tagged with the liberal label. But this is, for now anyway, a court of conservative champions and moderate-to-liberal holdouts against their muscular push.
Writing in the Los Angeles Times, constitutional scholar Erwin Chemerinsky described this as "the most conservative court since the mid-1930s," with an entrenched majority that "could last another decade no matter who wins the White House." True, but as Brennan was wont to say, the court is a pendulum that swings over time.
The Warren court in which Brennan was such an influential player will not rise again. Brennan's "unabashedly activist approach to judging," as Stern and Wermiel write, seems part of a "bygone era."
Yet the architecture of rights that Brennan helped erect has proved remarkably resilient. In such disparate areas as abortion, affirmative action, voting rights, due process, sex discrimination and the rights of criminal defendants, the foundation remains even if some of the walls have crumbled.
The sweep of Brennan's life encompasses not only an ever-shifting court but a changing political and national culture.
Stern and Wermiel describe the "rather cursory fashion" in which Dwight Eisenhower selected Brennan. That's putting it mildly. With the 1956 presidential election just six weeks away, Eisenhower, seeking to shore up his vote in Northeastern states, wanted a Catholic, conservative Democrat, young enough to serve and with judicial experience. Brennan, then on the New Jersey Supreme Court, was one of just three who fit the bill.
Other than that, Eisenhower knew little about his pick. "What never came up" in Brennan's meeting with Eisenhower, they write, "was his views on any legal topics. After 20 minutes, Eisenhower was satisfied he had found the right man."
As amazing as the choice of an avowed member of the opposite party seems today was Eisenhower's uncontroversial move to install Brennan by recess appointment in order to let him participate in the upcoming term. Senators later weighing Brennan's confirmation had his votes on the Supreme Court to judge by.
Those who bemoan the current state of the confirmation process, though, might not want to return to Brennan's day. Wisconsin Sen. Joseph McCarthy, then in decline physically and politically, launched an attack on Brennan's anti-communist bona fides. Others questioned whether Brennan could reconcile his religious obligations with his constitutional oath. The Senate that voted to confirm Brennan could scarcely have imagined the current court of six Catholic and three Jewish justices.
And Brennan himself might not have imagined -- or been entirely comfortable with -- a court that included three women. Stern and Wermiel describe how, when it came to hiring clerks, the justice failed to practice what he ruled the Constitution required. He summarily rejected a female clerk in 1970. "Send me someone else," he told the law professors who helped him choose clerks.
In 1973, after writing a landmark opinion decrying the country's "long and unfortunate history of sex discrimination," he again turned down a female clerk -- relenting only after the former clerk who recommended her warned him, "Your blanket refusal to accept a woman clerk is not just 'sexist,' and not just contrary to government policy; it seems to me that it is literally unconstitutional."
Brennan relented and hired the clerk, Marsha Berzon, who is now a federal appeals court judge.
The popular -- and, to Brennan, infuriating -- picture of Brennan behind the scenes of the court was of a glad-handing pol. In an early interview, Brennan asked that Wermiel "kill off that silly notion of an amiable Irishman going around cajoling and maybe seducing colleagues."
Instead, the book depicts Brennan's strategic genius in understanding just how far his colleagues were willing to go and in crafting legal arguments to which they could, however hesitantly, sign on. With the notable exception of capital punishment, Brennan was willing to accept half a loaf and patiently wait to add more slices.
"Brennan's colleagues," the authors write, "learned to watch for the seemingly innocuous casual statement or footnote -- seeds that would be exploited to their logical extreme in a later case."
That practice continues on the current court. Except the seed planters are the conservative justices, and it remains to be seen whether they will be able to reap anywhere near as bountiful a harvest as did Brennan.