Justice White and judicial excellence

By NEIL GORSUCH, Special to UPI   |   May 4, 2002 at 7:05 AM

WASHINGTON, May 3 (UPI) -- In eulogizing Justice Byron White, Jack Miller, himself a lion of the bar, got it right. Quoting Shakespeare's Hamlet, Miller told the hundreds assembled that we "shall not look upon his like again."

Miller was right in two senses.

First and most obviously, Justice White accomplished more in one life than most could in three. He grew up on a sugar beet farm in the smallest of towns in Colorado, but finished first in his college class. At the same time, he led the NCAA in points scored -- 122 -- and all-purpose yards -- rushing, receiving, pass interceptions, as well as punt and kickoff returns.

U.S. Supreme Court Justice Byron White in his official portrait in 1976. Photo courtesy U.S. Supreme Court

Justice White set collegiate records that would stand over 50 years. He was the highest paid player of his day in the National Football League -- $15,000 a season in those days. But he was also a Rhodes scholar, a war hero, top of his class at Yale Law School, and a leading private practitioner.

As Attorney General Robert F. Kennedy's deputy at the Justice Department, Justice White defended the desegregation efforts of the "freedom riders" in Alabama. And then, of course, he served 31 years on the United States Supreme Court. As President John F. Kennedy remarked when announcing his nomination, Justice White excelled in everything he attempted.

There is another sense in which we shall not look upon the like of Justice White again. He was confirmed less than two weeks after his nomination; his hearing lasted 90 minutes.

He was selected not because of partisan ideology, but because of his integrity, accomplishment, and life experience. Justice White's subsequent tenure on the bench was characterized by an utter indifference to partisan agendas. He voted against Miranda warnings, against extending the First Amendment in novel ways to protect the media against meritorious libel charges, and against Roe vs. Wade.

At the same time, he voted for one-man, one-vote reforms, insisted on school desegregation even if it required raising taxes and busing, and supported Congress's use of racial preferences to remedy past discrimination.

If one theme ran through Justice White's jurisprudence, it was a confidence in the people's elected representatives, rather than the unelected judiciary, to experiment and solve society's problems, so long as the procedures used were fair and the opportunity to participate was open to all. But in each and every area, Justice White sought, as he put it often, to "decide the case," not to advance any ideology.

Despite his independence (or maybe because of it), many on both the left and right grudgingly came to respect the justice that they could never take for granted and whose vote they had to win in each and every case with their best legal arguments.

The judicial confirmation process today bears no resemblance to 1962.

Today, there are too many who are concerned less with promoting the best public servants and more with enforcing litmus tests and locating unknown "stealth candidates" who are perceived as likely to advance favored political causes once on the bench.

Politicians and pressure groups on both sides declare that they will not support nominees unless they hew to their own partisan creeds. When a favored candidate is voted down for lack of sufficient political sympathy to those in control, grudges are held for years, and retaliation is guaranteed.

Whatever else might be said about the process today, excellence plainly is no longer the dispositive virtue, as it was to President Kennedy.

The facts are undeniable. Today, half of the seats on the Sixth Circuit remain unfilled because of partisan bickering over ideological "control" of that circuit. The D.C. Circuit operates at just two-thirds strength. Almost 20 percent of the seats on the courts of appeals and nearly 100 judgeships nationwide are vacant. The administrative office of the U.S. Courts has declared 32 judicial vacancy "emergencies" in courts where filings are in excess of 600 cases per district judge or 700 cases per appellate panel.

Meanwhile, some of the most impressive judicial nominees are grossly mistreated. Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton's solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving "hot-button" issues.

As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. Roberts, nominated almost a year ago, still waits for a hearing -- and sees no end to the waiting in sight. In fact, this is the second time around for Roberts: he was left hanging without a vote by the Senate at the end of the first Bush administration. So much for promoting excellence in today's confirmation process.

Justice White's passing is a deep loss. He lived a full life in service of his country and the rule of law. When he retired in 1993, he commented that it was time for others "to have a like experience." It would be a beneficent thing if Justice White's passing served as a wake-up call to both political parties that their responsibility in picking judges is to help the nation find objectively excellent public servants, not to turn the process into an ideological food fight where the most able are mistreated while trimmers and the mediocre are rewarded.

Responsibility for the current morass does not rest with any one party or group; ample blame can be doled out all around. But litmus tests, grudge matches and payback are not the ways forward. Excellence is.

As Lloyd Cutler, White House counsel to President Clinton, explained in testimony to the Senate Judiciary Committee last year, "to make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science; it also serves to weaken the public confidence in the courts."

Though we will never see the like of Justice White again, here's hoping we again see a time in which the excellence he so richly embodied serves as the essential standard for picking and confirming our nation's judges.


(Neil Gorsuch is a litigation partner at Kellogg, Huber, Hansen, Todd & Evans in Washington, and a former law clerk to White.)

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