"Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."
-- Alexander Hamilton on the selection of Supreme Court justices, 1788
"Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?'
--Senator Roman Hruska on the nomination of G. Harrold Carswell to the Supreme Court, 1970
Clarence Thomas' confirmation hearings, due to begin Tuesday, should serve to remind us that service on the Supreme Court demands, as Hamilton suggested, individuals who possess specially-honed legal and analytical talents, a deep and rigorous manner of thinking, a solid judicial temperament, and a distinguished background in the law.
Curiously, the court as presently constituted seems to have drifted away from Hamilton's vision and fallen full sway into the Hruskian view of judicial selection.
Unfortunately, Clarence Thomas' confirmation, which is highly likely, will not have a measure impact on the drift toward judicial mediocrity on that court.
This is not to suggest that the Senate ought not to confirm Judge Thomas. Indeed, he is no more and no less qualified than most members now serving on that body. What it does suggest is that with the departure of Thurgood Marshall, we no longer have Supreme Court justices with the range of experience, prestige or stature that places them above the throng.
Although the current justices are undoubtedly a dedicated lot who devote long hours to deliberation, research and writing their opinions, without exception they lack the scope, personally and judicially, of what we ought to expect on the United States Supreme Court.
Examples abound in this century alone:
* Oliver Wendell Holmes, Jr., a distinguished Harvard law professor.
* Louis D. Brandeis, a lawyer with a long, notable career in private practice, often arguing cases before the Supreme Court. In 1908 he argued what was to be called the Brandeis brief, with its sociological, psychological and economic -- and not only legal -- information.
* Hugo Black, a powerful United States Senator.
* William O. Douglas, a distinguished law professor and Chairman of the Securities and Exchange Commission.
* Robert H. Jackson, Solicitor General of the United States, then Attorney General, and American prosecutor at the Nazi Nuremburg trials.
* Earl Warren, Attorney General, then Governor of California, and vice presidential candidate in 1948.
* Lewis F. Powell, Jr., a distinguished lawyer in private practice and president of the American Bar Association.
* Thurgood Marshall, chief of the NAACP Legal Defense and Education Fund, Solicitor General and a federal judge.
Of course, not everyone throughout the court's 200-year history has had a prior distinguished career. But there always seemed to be an outstanding jurist on the bench at any given time. Except now.
Now the highest previous office of any current judge belongs to Byron White, who served in the Kennedy administration as Deputy Attorney General. Most are former federal judges
(Justices Blackmun, Stevens, Scalia, Kennedy and Souter, and now possibly Judge Thomas). One was a state court judge (Justice O'Connor), and one was a member of the executive department (Chief Justice Rehnquist was an assistant attorney general under Richard Nixon).
Service on the nation's highest court is a time-consuming, often grueling affair. It is said that it generally takes anywhere from two to three years for a new justice to begin to feel comfortable with not only the demands of the caseload but with the idea that decision-making at this level is final and has long-ranging consequences in American life.
David Souter has found this out this year. According to National Public Radio, during his first term, he spent long hours at the court, often until 10:00 p.m., reading and studying. In that first year on the court, he has written only half the number of opinions that Lewis Powell wrote his inaugural year, when he joined the court midway through the 1972 term.
It now appears that justices first serve on the United States Circuit Court of Appeals as an apprenticeship before stepping up to the high court. The framers of the Constitution certainly never intended judges as being "promoted" along the way from one judicial position to the next as in the corporate world.
President Bush and those who follow him will serve the American people well if they look for nominees to the court beyond the federal judiciary and administrative branch of the government. Everyone of the names tossed around in the press as potential replacements for Justice Marshall's came from the federal judiciary. Some, like Justice Souter and Judge Thomas, have only held their position on the Court of Appeals for a few months before they were "promoted" to the Supreme Court.
Mr. Bush and future presidents must now go beyond this narrow pool and seek not only those who have the best legal and judicial temperament but those whose minds and vision of the Constitution best reflect Alexander Hamilton's idea of the true qualities of a justice.
Jack Fruchtman, Jr. teaches politics and directs the prelaw
program at Towson State University.