HOW REFRESHING -- and helpful to the judicial process -- it was to find on a deeply divided court during deeply divisive times in the 1960s and 1970s the moderating influence and persuasive intellect of a conscientious jurist. Carl McGowan, who died here Monday at the age of 76, was more than a peacemaking judge on the U.S. Court of Appeals for the District of Columbia, the panel regarded by many as second only to the Supreme Court. Judge McGowan managed to steer the middle ground with good sense and sound opinions. Years before President Kennedy would name him to the court, he saw the importance of this balancing role, describing it for a Notre Dame symposium on the role of the Supreme Court: The essence of judicial power is that it is a solvent of personal frictions, whether they grow out of the relationships of individuals to each other, or of the individual and the state. When the clash comes, it is the judicial power which must settle it, if a society is to be ordered by reason rather than by superior forces alone, which is the very negation of civilized living.
Asked at the time of his nomination if he leaned toward the liberal or the conservative side of the political spectrum, the then-Chicago lawyer said: "I don't believe in making that sort of classification. It is fruitless." Significantly, his nomination enjoyed the warm support of both the Democratic and Republican senators from Illinois, Paul Douglas and Everett Dirksen. During his 18 years on the court before he assumed senior status in 1981, Judge McGowan had a reputation for balancing individual and state interests with pragmatism and clarity. He often complained that too many lawyers wrote poorly, having observed as a law school professor that his colleagues had a tendency to hide their lights "under literally bushels of words, inexpertly put together."
The pointed, precise words included a 1966 concurring opinion taking an enlightened view of chronic alcoholism as an illness; and another in a 1975 ruling that the president may not wiretap at will just because the activities of a person or a group affect foreign affairs, in which he wrote that such activities "are likely to be either criminal," in which case the requirements for warrants would apply, "or protected by the First Amendment, in which case there should ordinarily be no surveillance."
It was this sort of common sense, coupled with a gentle demeanor and kind humor, that made Carl McGowan an important figure on this important court. It also made him a special friend to people well beyond the legal circles of the capital city.