Out of the dismal swamp that passes for a presidential campaign there has crawled the issue of appointments to the Supreme Court. It is an issue marked by sleazy politicization.
For the problems confronting the Supreme Court and the lower federal tribunals can only be met by judges of high intellectual caliber. Those, by definition, are persons who stand above the mean, partisan politics of the day.
Jimmy Carter personally raised the issue first when he spoke to the NAACP convention in Miami on July 4. "I want you to consider very carefully and very seriously," he told the assembled black leaders, "how this nation's future will be affected by the next three or four justices of the U.S. Supreme Court."
In case anybody doubted his meaning, the president declared that he had appointed "more blacks, more women and more Hispanics to the federal bench as judges than all other presidents in the 200-year history of this country." In other words, the president was intimating that several justices were likely to leave the court soon and strongly implying that he would name replacements sympathetic to the claims of women and racial minorities.
Ronald Reagan had the issue forced upon him by his party. The Republican convention wrote into the platform a plank committing the nominee to "the appointment of judges . . . who respect traditional family values and the sanctity of innocent human life."
To his credit, Reagan edged away from the commitment against naming as judges persons who supported abortion. In an interview with the Associated Press, he said he would not use "single issues" as the test of judicial appointments. Still, he did not repudiate the naming of judges for partisan political reasons.
In fact, the hopes and fears on both sides are wildly exaggerated. There is no sign that the court headed by Chief Justice Warren Burger is about to sell out to the arch conservatives. The Burger Court has upheld liberal principles on such matters as school desegregation including busing, the death penalty, affirmative action in hiring and the right to an abortion. While two liberal justices -- William Brennan and Thurgood Marshall -- have talked of retiring, both would probably hang on if Reagan were elected.
On the other hand, there is no sign that the Burger Court has sold out to the ultra liberals. It has, in particular, rejected wholesale translation of liberal economic views into sacred constitutional dogma. Hence the willingness of the Burger Court to defer to Congress on federal funding of abortions.
The serious trouble confronting the court is the opposite of bias in one direction or another. The true difficulty lies in its inability to fashion unequivocal principles from which follow coherent opinions flashing clear signals.
A study by Bruce Fein for the American Enterprise Institute shows an extraordinary recent increase in the number of cases settled by a one-vote majority, or where there was a plurality of views and no majority. Justice Lewis Powell has acknowledged the fragmentation of views by asserting publicly that the "court may fairly be criticized for the increase in the number of dissenting and concurring opinions." In the absence of clear signals from the Supreme Court, authority passes down the judicial ladder to the lower courts. These tribunals, lacking guidance from above, now strike out on their own in different directions.
Note, for example, the variety among the busing plans handed down by judges for Los Angeles, Chicago and Dallas. Packing the court with liberals or conservatives could of course upset the narrow balance that now obtains. But not for long. If one president tilts the court sharply in one direction, it is a near certainty that the next will tilt the court sharply the other way. In each case, decisions will lack respect and the cure will be worse than the disease.
The only way to move past the present knife edge in jurisprudence is by the development of transcendent principles that marshal growing assent. The discovery and articulation of such principles requires detached thought by longheaded statesmen of the law. What the court needs now is not passionate commitment to short-term partisan interests, but the kind of independent intellectual penetration that enabled John Marshall and Oliver Wendell Holmes and Benjamin Cardozo to assert an influence that has widened steadily, long, long after time made moot particular cases and causes.