Supreme Court watchers from the left flank are...


July 12, 1993|By THEO LIPPMAN JR.

EVEN SOME Supreme Court watchers from the left flank are becoming fans of Associate Justice Sandra Day O'Connor and Associate Justice David Souter.

Both those justices came to the court with reputations as conservatives. In an editorial on his confirmation, The Sun put Mr. Souter in the same category as his self-professed role model, Justice John Marshall Harlan (the second one, 1955-1971; not his grandfather of the same name, 1877-1911) and Justice Lewis Powell (1971-1987), deliberate conservatives.

Both those justices emphasized the need for conservatives on a conservative institution like an unelected court of last resort to stick with precedent and to practice judicial restraint. Otherwise judges look as if they are legislating what they think is best, not following jurisprudential rules that require them to do what they think is required by Constitution and law. O'Connor and Souter are in this mold.

My reading of the opinions of Justice O'Connor and Justice Souter makes me think they are unusually concerned about what the public thinks about them, the court and the rule of law. One reason for this may be that they (alone of the present court) came from state judgeships, where judges are not given the lifetime tenure and absolute independence of federal judges.

Justice O'Connor came to the Supreme Court from the Arizona Court of Appeals. She served on it and the Superior Court there for six years. Justice Souter had just joined a federal court of appeals when President Bush picked him for the highest court. Before that he served a dozen years on the Superior Court and the Supreme Court of New Hampshire.

State court judges in Arizona face the voters in retention elections at some point in their careers. New Hampshire judges aren't voted on, but they don't get lifetime appointments, either. They have to retire at age 70. In some states judges have to be re-appointed from time to time.

I would never suggest that federal judges at any level have to face voters or be re-appointed, though a mandated age of retirement might be a good idea -- something to remind them they're not gods.

It is interesting to note that some of the very best justices were state court judges. That includes especially the justice Mr. Souter replaced, William Brennan, who served on courts at three levels in New Jersey. Many think Brennan's 34-year tenure on the court (1956-1990) compares favorably with that of any of the giants in the court's history.

There have been other giants on the court in this century who honed their judging skills on state courts, Oliver Wendell Holmes and Benjamin Cardozo.

State courts used to provide more justices than any other calling, but that has changed. Of the first 100 justices, 42 were state judges (and 25 were federal ones). Only Souter, O'Connor and Brennan of the 23 Supreme Court justices named since the end of World War II came from state courts (14 were federal judges).

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