Jewish World Review Oct. 3, 2005/ 29 Elul,
A missing element in the Supreme Court
Taylor, who writes for the National Law Journal and Legal Times,
asked: "Now that Sandra Day O'Connor has announced her retirement,
how many remaining justices have ever held elected office? How many
have previously served at the highest levels of the executive branch
of government? How many have argued big-time commercial lawsuits
within the past 35 years? How many have ever been either criminal
defense lawyers or trial prosecutors? How many have presided over
even a single criminal or civil trial?" (David Souter, Taylor said,
was the exception.)
I knew a New York judge, Burton Roberts, who had been a prosecutor
and then had presided over criminal trials. When the first rigid
sentencing guidelines went into effect, this judge was resistant,
although he was known as a law-and-order jurist. "While the crimes
may be the same," Burton Roberts told me, "the individual defendants
may be significantly different, and the sentencing judge should be
able to take that into account."
And when Justice Thurgood Marshall died, the tributes to him by a
number of the justices who had been his colleagues told how he had
educated them because of his considerable experience in the trenches
as a trial lawyer, including during his long march to the Supreme
Court itself, and his victory (long-since attenuated) in Brown v.
Board of Education.
John Roberts certainly showed his mastery of the language of the law
during his hearings, but his gleaming resume indicated little
experience in life outside the law. Born into a wealthy family, he
attended private school, Harvard and Harvard Law School, clerked for
both a federal appeals judge and U.S. Supreme Court Justice William
Rehnquist (who became his mentor), served high up in the Justice
Department in two administrations, practiced law in a prominent
Washington law firm, and then became a judge in the most influential
of the federal circuit courts.
Somehow, that seamless background reminded me of when I was a kid,
listening on the radio during the so-called Great Depression to jazz
pianist-singer "Fats" Waller from a posh club at a Chicago hotel.
Coming to the microphone, Waller said to the nation: "I wonder what
the poor people are doing tonight."
The Supreme Court justice I most admire was Louis Brandeis. He grew
up in comfortable circumstances and attended Harvard Law School,
where he received the highest grades ever awarded there. But in
private practice, he became known as "the people's lawyer," and his
"Brandeis briefs" revealed abundant details of the shoals and snares
of the same "real world" that most Americans know. And Brandeis'
1891 legal article, "The Right to Privacy" an area expertly
evaded by John Roberts in his hearings was seminal.
Presidents who nominate future Supreme Court justices and the
senators who give advice and perhaps consent would benefit the
nation if they paid heed to Stuart Taylor's advice:
"The Supreme Court is supposed to sit above politics and apart from
popular whims. But when a large majority of the Court's justices
have never cross-examined a lying cop or a slippery CEO, never faced
a jury, never slogged through the swamps of the modern discovery
process, something has gone wrong. As the Court has lost touch with
the real-world ramifications of its decisions, our judicial system
has clearly suffered."
I know a former judge, Andrew Napolitano, now a senior judicial analyst for the Fox News Channel, where he occasionally tries to inform Bill O'Reilly, on the air, of the meaning and historical origins of the Bill of Rights. In his book, "Constitutional Chaos" (Nelson Current, 2004), Judge Napolitano tells that, before he went to the Superior Court of New Jersey, he was a strong supporter of Richard Nixon's law-and-order, pro-police presidential campaign.
If Judge Napolitano was nominated to the U.S. Supreme Court, he
would give the senators and the nation a much deeper understanding
of their protections under the Constitution than John Roberts did.
It's a pity that fierce critics of Fox News who seldom watch it,
it seems don't get the benefit of Judge Andrew Napolitano. John
Roberts should also tune in.
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