SOMEONE who knows that I write most of The Sun's Supreme...


June 17, 1993|By THEO LIPPMAN JR.

SOMEONE who knows that I write most of The Sun's Supreme Court editorials asked me if I wrote

"Ginsburg for the Supreme Court"

I said, no, I wrote

"Mr. Justice Breyer"

Here's what happened. As I was preparing to go on a mini-vacation last Friday afternoon, reporting from Washington indicated that Judge Stephen Breyer was about to be named to the Supreme Court. It was practically a done deal. President Clinton would make it official late Friday or Saturday.

Joe Sterne, the editorial pages editor, and I discussed the nominee Friday morning and the ways and means of getting an editorial in the papers immediately after the announcement. We agreed that though I as an individual opposed the nomination, the paper as an institution ought to endorse him.

We thrashed it out and I pounded out a powerful piece ("approaches legal issues having economic implications in a hard-headed, common-sense way . . . consensus builder . . . valued addition to the present Supreme Court)" and then I left town. Sterne would come in Saturday or Sunday to freshen it up with details from the actual announcement and reaction.

Well, Breyer and my editorial ended up in the trash can, and Sterne had to start from scratch Monday.

* * *

Why was I opposed to the Breyer nomination? I got to know him years ago as a source when I was writing a book about his then boss, Teddy Kennedy. On a staff that was very good and very bright, I thought he was the best and brightest. His subsequent career on the bench has been outstanding. But I didn't want him on the Supreme Court for the same reason I am opposed to the Ginsburg nomination. They are federal circuit court judges.

Six of the present Supreme Court's justices used to be U.S. circuit court judges. The federal judiciary is turning into a giant bureaucracy. Judges rise in grade like civil servants. The Supreme Court begins to look at cases and controversies from a similar jurisprudential perspective, based on very similar career experiences. The conference room is like an echo chamber, even when the justices disagree.

This Supreme Court desperately needs a justice who learned about writing and/or executing laws in the real world wearing a coat and tie (or dress) rather than in chambers or a courtroom wearing a robe.

Clinton really embraced a Republican tradition by going with a judge. Democrats pick pols. Of the 20 Supreme Court justices chosen by Democratic presidents in this century, only three were court of appeals judges at the time of nomination. Franklin D. Roosevelt made nine of those appointments, only one of which was a court of appeals judge.

The most influential court in this century was composed of five ex-office holders and led by the most political chief justice of all time.

Monday: The Warren Court.

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