Associate Justice

UNDERLYING the sadness in the tributes to Thurgood Marshall yesterday was this sense of regret: Oh, if only he had waited a little longer to retire.Justice Marshall was the last liberal Democrat on this court. The only liberals on the court now are Harry Blackmun and John Paul Stevens, both Republicans, and the only Democrat is Byron White, a conservative.Justice Marshall retired in June, 1991, at the end of the 1990-1991 term. Rumor had it that he wanted to retire earlier, but he held on because he didn't want a Republican president to replace him with a conservative.

Yesterday was a day of ceremony for Samuel A. Alito Jr., who was approved by the Senate, 58-42, and then sworn in as an associate justice of the U.S. Supreme Court. He was also proudly recognized by President Bush as he took his place among some of the other justices for last night's State of the Union speech. But the ceremonial now gives way to the practical business of deciding cases, and based on his judicial record and his appearance before the Senate Judiciary Committee, we still have serious doubts about Justice Alito's suitability for the court.

AFTER the Bill of Rights, the next amendment to the Constitution was the 11th, in 1798. It says that federal courts may not hear suits against a state by citizens of another state or foreign country. Reflecting struggles at the birth of the country, that amendment has not seemed crucial lately.It is now, thanks to three 5-4 decisions with which the Supreme Court ended its term. Because of the narrowness of the vote, these did more to open than close the argument.The issue of state vs. federal sovereignty is reignited.

WILL PRESIDENT BUSH actually have the guts to nominate Clarence Thomas for chief justice when that opportunity arises, probably soon? You know he's just aching to do it. Because of their shared judicial philosophy, of course. But also because of that arrogant willfulness Mr. Bush has. Heck, why be president if you can't rub your critics' noses in it? And will the Democrats have the guts to oppose Justice Thomas' elevation to chief? Justice Thomas' performance at his 1991 confirmation hearing, the things we know now that we didn't know then, even the things we knew then but were bullied or rushed into ignoring, are not just fair game.

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.

The bronze Thurgood Marshall on Pratt Street may be only eight-and-a-half feet tall, but the historical Thurgood Marshall is a lot taller than that. He is quite likely to go down in history as one of the greatest, most effective lawyers of this century. Much of his reputation will rest on his 24 years as an associate justice of the Supreme Court. To have been one of a small elite who could overcome a president, a majority of Congress and all the state and local lawmakers in the land is by definition to have achieved great influence.

Yesterday was a day of ceremony for Samuel A. Alito Jr., who was approved by the Senate, 58-42, and then sworn in as an associate justice of the U.S. Supreme Court. He was also proudly recognized by President Bush as he took his place among some of the other justices for last night's State of the Union speech. But the ceremonial now gives way to the practical business of deciding cases, and based on his judicial record and his appearance before the Senate Judiciary Committee, we still have serious doubts about Justice Alito's suitability for the court.

THE GUTTER tactics that helped win confirmation for Clarence Thomas as an associate justice of the Supreme Court were authorized by President Bush (not by something impersonal called "the White House"). Those tactics resulted in a glorious victory -- the smallest margin of confirmation for a high court nominee in 103 years; an associate justice who will sit for decades with neither an unblemished name nor the unstinting consent of the Senate.Thomas' reputation was injured by more than charges of sexual harassment, or by his showing in the original hearings that he is not much of a scholar of the law or the Constitution, and has little experience outside the bureaucracy.

WASHINGTON -- Senate Majority Leader George Mitchell's decision to take himself out of the running for the Supreme Court vacancy created by Associate Justice Harry Blackmun's impending retirement was actually the second time Mitchell let President Clinton know he would not be available. But he made it clear this time around, in his news conference, that he wasn't closing the door to a future appointment -- as chief justice.Last year, when Associate Justice Byron White announced his retirement, Mitchell was on the list of those prominently mentioned as a prospect to fill his seat.

Though inured to politicians' perfidy since the fiery dawn of time, Illinois' concerned citizenry was startled in June of 1969 when the state's Supreme Court Chief Justice and an associate justice were accused of overturning a graft conviction for personal gain. The chief, Roy J. Solfisburg Jr., a Republican, was popularly thought to be destined for the U.S. Supreme Court. Associate Justice Ray I. Klingbiel, also a Republican, and a onetime mayor of Moline, was widely respected. Investigation proceeded swiftly.

NOW THAT the Supreme Court has handed down the decision in the University of Michigan affirmative action cases, perhaps the demagoguery can stop. During the months leading up to the June 23 decision, some in the pro-racial preference camp did not have their better moments. Notice the use of "racial preference camp" instead of "affirmative action" supporters. The affirmative action described in President Johnson's Executive Order 11246, issued on Sept. 28, 1965, specifically said things were to be done without regard to race.

Though inured to politicians' perfidy since the fiery dawn of time, Illinois' concerned citizenry was startled in June of 1969 when the state's Supreme Court Chief Justice and an associate justice were accused of overturning a graft conviction for personal gain. The chief, Roy J. Solfisburg Jr., a Republican, was popularly thought to be destined for the U.S. Supreme Court. Associate Justice Ray I. Klingbiel, also a Republican, and a onetime mayor of Moline, was widely respected. Investigation proceeded swiftly.

WASHINGTON - It may come as a surprise or a disappointment to observers of the Supreme Court who are fretting over its future: The justices are not going to call in a trauma specialist to provide counseling. The court's members are clearly fatigued after their experience in deciding the case of Bush vs. Gore, ending the presidential election conflict. Justice Clarence Thomas spoke of that fatigue in public this week, and the same message was written on the drawn faces of every one of the nine justices the last time they were seen in public.

AFTER the Bill of Rights, the next amendment to the Constitution was the 11th, in 1798. It says that federal courts may not hear suits against a state by citizens of another state or foreign country. Reflecting struggles at the birth of the country, that amendment has not seemed crucial lately.It is now, thanks to three 5-4 decisions with which the Supreme Court ended its term. Because of the narrowness of the vote, these did more to open than close the argument.The issue of state vs. federal sovereignty is reignited.

WASHINGTON -- Senate Majority Leader George Mitchell's decision to take himself out of the running for the Supreme Court vacancy created by Associate Justice Harry Blackmun's impending retirement was actually the second time Mitchell let President Clinton know he would not be available. But he made it clear this time around, in his news conference, that he wasn't closing the door to a future appointment -- as chief justice.Last year, when Associate Justice Byron White announced his retirement, Mitchell was on the list of those prominently mentioned as a prospect to fill his seat.

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.

With apologies to the Gospel according to Matthew, we would alter the biblical injunction to say that in Clarence Thomas' case, he will be judged in history by the votes he casts and the opinions he writes in his new position as an associate justice of the Supreme Court.All that has gone before -- from his stirring rise from being born black and poor in segregated Georgia to the ugly confirmation process that cast doubt on his conduct and veracity -- will be overshadowed by what is to come.

WASHINGTON - It may come as a surprise or a disappointment to observers of the Supreme Court who are fretting over its future: The justices are not going to call in a trauma specialist to provide counseling. The court's members are clearly fatigued after their experience in deciding the case of Bush vs. Gore, ending the presidential election conflict. Justice Clarence Thomas spoke of that fatigue in public this week, and the same message was written on the drawn faces of every one of the nine justices the last time they were seen in public.

UNDERLYING the sadness in the tributes to Thurgood Marshall yesterday was this sense of regret: Oh, if only he had waited a little longer to retire.Justice Marshall was the last liberal Democrat on this court. The only liberals on the court now are Harry Blackmun and John Paul Stevens, both Republicans, and the only Democrat is Byron White, a conservative.Justice Marshall retired in June, 1991, at the end of the 1990-1991 term. Rumor had it that he wanted to retire earlier, but he held on because he didn't want a Republican president to replace him with a conservative.

With apologies to the Gospel according to Matthew, we would alter the biblical injunction to say that in Clarence Thomas' case, he will be judged in history by the votes he casts and the opinions he writes in his new position as an associate justice of the Supreme Court.All that has gone before -- from his stirring rise from being born black and poor in segregated Georgia to the ugly confirmation process that cast doubt on his conduct and veracity -- will be overshadowed by what is to come.