Papers say Paul Sarbanes is being...

THE OUT-OF-TOWN

May 05, 1994|By THEO LIPPMAN JR.

THE OUT-OF-TOWN papers say Paul Sarbanes is being "mentioned" as a Supreme Court nominee for retiring Harry Blackmun's seat.

The Sun mentioned him in an editorial on April 12, 1993, for the vacancy created by Byron White's retirement. Ruth Bader Ginsburg got that nomination. I don't know whether this is the same Sarbanes mention or a new one.

In any event, Sarbanes would be a good choice for this court. He is a senator, and there hasn't been one on the court since Hugo Black died in 1971. Of the 105 men and 2 women who have been Supreme Court justices, only 15 have been senators, but there was usually at least one on the court at any given time. When Black retired in '71, there had been an ex-senator on the court for 90 straight terms.

George Washington named two senators to the Supreme Court, but the practice didn't catch on right away. The next six presidents ignored the Senate in nominating the next 16 justices. That was the record drought till now. The last seven presidents haven't chosen a senator in filling 20 vacancies, and that's not counting Jimmy Carter, who had no vacancies, and Bill Clinton, who still has the opportunity to pick a senator.

No president named more than two senators to the court. Washington's two were among his total of 11. Franklin D. Roosevelt named two in nine appointments. Harry Truman named two senators out of only four appointments. So did Grover Cleveland. The record holder is James A. Garfield. He was only in the White House for six months, in 1881, but before he died he named a senator as his one court appointment.

Do senators make good justices? Yes and no. Some have been good, some terrible.

I would think Senator Sarbanes would be a good justice. He's learned: Princeton, Oxford, Harvard Law. And he has had experience at writing laws at every level: Maryland House of Delegates, U.S. House of Representatives, U.S. Senate.

That's important because one of the big squabbles in the court these days is over trying to decide what laws actually mean. Some justices say laws mean what the members of Congress said in debate they mean. Other justices say the plain language of the finished statute is all that counts.

I can imagine a Supreme Court conference . . . :

Justice Scalia: The Selective Service Act says "males"!

Justice Ginsburg: But during debate Senators Tower, Warner and Kennedy, all of the Armed Services Committee, said women would be drafted in event of an emergency. Isn't that right Justice Sarbanes?

Justice Sarbanes: Sure. I remember that debate well. They'd just come back from lunch, and they were drunk.

An ex-senator can give justices little insights like that into the legislative process, put flesh and blood into legislative history.

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