A Better Way to Pick Supreme Court Justices?

The Judges of the Supreme Court of the land must be not only great jurists, they must be great constructive statesmen.

--Theodore Roosevelt, 1902

To hear most legal authorities tell it, the nation's 14th Republican President has forgotten the standards proclaimed by the eighth. Upset by the thought of G. Harrold Carswell on the Supreme Court, some experts have revived an old and fascinating question: Is there no better way to pick members of the world's most influential tribunal?

Article II of the Constitution calls for presidential selection "with the advice and consent" of the Senate, but reformers have repeatedly sought specific criteria. Save for Earl Warren, President Eisenhower insisted on men who had served as lower-court judges, and in the mid-1950s, several Senators introduced a bill to make court experience mandatory. Yet this plan would have excluded from the Supreme Court nearly all previous Chief Justices, including the great John Marshall, plus many distinguished Associate Justices.

Since the Eisenhower Administration, Attorneys General have asked the American Bar Association's Committee on the Federal Judiciary to pass on the qualifications of potential nominees. Variants of the so-called "Missouri plan" would give similar panels even more responsibility; a President could pick only from men selected during the panelists' theoretically nonpartisan deliberations. Yet the A.B.A. committee generally represents a narrow segment of successful lawyers, and it has never turned down a Supreme Court nominee. Most scholars argue that any such commission would be more likely than a President to rule out unconventional candidates.

Wisdom and Growth. Another idea is direct popular election, a scheme that would force the entire nation to take a close look at the nominee. Judges are elected in approximately 82% of the nation's state and local courts, but real contests are rare, and active politicking by judges is usually regarded as improper. Moreover, the financial pressures of a national election campaign might well make Justices beholden to special interests.

All in all, most legal experts agree that the best idea is to make the present system really work. How? The Supreme Court is, after all, a political as well as judicial body. In some ways, the court's chief problem is knowing when to act and when to defer to the other branches of government -- state and federal. A Justice's strictly legal competence may thus be less important than his political wisdom, respect for all groups and capacity to grow under the court's intense moral and intellectual pressures.

When Carswell's critics complain that he is judicially incompetent, they are really making two charges. Even more than Clement Haynsworth, they feel Carswell lacks the political acumen to cope wisely with the issues of a combustible era -- in particular racial discrimination. And unlike Haynsworth, they regard Carswell as deficient in basic legal skills. When Carswell boasts that he never accepted a fee while on the bench, they reply: "Who on earth would pay him one?"

For his part, a President is perfectly justified in picking Justices to advance his political mandate. A chief executive who did not would be, as Professor Wright puts it, "unfaithful to democratic theory and derelict in his duty."

When it comes to Supreme Court appointments, though, some Presidents have failed to distinguish between high and low politics. Justices do not leave at the end of a presidential term; they stay on the bench as long as they wish to -- shaping the nation for years. Thus picking good men requires a high order of presidential disinterest. Ultimately, says Yale Law Professor Fred Rodell, "the way to get better Supreme Court Justices is to elect better Presidents."

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