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By David A. Kaplan
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WITH JUSTICE HARRY BLACKMUN'S retirement, John Paul Stevens will be about the closest thing to a liberal that the Supreme Court has left. But that's a bit like calling Staten Island the nicest place to live in New York City-what are the other choices"'
This court has no ideological breadth. That's unfortunate, because the finest moments of the modern court have come when the justices have been at each other's throats, conservatives and liberals locked in principled debate. The White House has made it clear that the quality it prizes in a nominee is confirmability. Yet Bill Clinton, the former law professor, ought to know better. He should pick an unabashed liberal for the court. Not out of political calculation -actually, it would cost him - but because it would enhance [be court's prestige for the long term.
There hasn't been a liberal nominated since 1967, when LBJ named Thurgood Marshall. With his departure in 1991 and William Brennan's the year before, the court lost its powerful voices on the left. Although Blackmun often did vote with those two liberal lions. his record was still mixed, especially in criminal cases. Blackmun's "liberalism" was apparent only against the right-wing backdrop at the court that emerged in the '80s. And because his was a personal voice that relied on emotion more than logic, Blackmun never carried the institutional heft of some of his brethren. His gift was intuitive, not intellectual, so he offered no match for the doctrinal firepower of Antonin Scalia, the court's archest conservative.
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It is Scalia's presence that most cries out for counterpoise. No one much checks him-who likes taking on a bully? --and his strident views appear in print unchallenged. just imagine if an anti-Scalia from the left confronted him. It's like the junior-high tennis whiz whose game improves only when another kid arrives to push him. For several years now, Scalia's juridical shots have been piling up on the other side of the court.
The Supreme Court's history suggests that an ideological cat fight is precisely what this soporific court needs. The best work can come from the most contentious relationships. From the 1940s through the early '60s, justices Hugo Black and Felix Frankfurter polarized the bench with their raging disagreements about the Constitution, Black, the old pol, was the classic activist: Frankfurter, the old prof, counseled judicial restraint. Relentlessly, each brought out the best in the other, even if for years they were mortal enemies. (After one particularly galling defeat in 1942, Frankfurter wrote in his diary that Black and two other justices were "the Axis" a cruel sobriquet in the midst of World War II.) Had either Black or Frankfurter worked in a vacuum, neither would have developed his influential views on free speech or civil rights or federal power. Later in their lives, each acknowledged is much and became friends.
Hugo Black's name came up last week because he's the last Democratic senator to have had a court career. Could George Mitchell be the liberal antidote Clinton should seek out? His political career is certainly as distinguished as Black's was. Yet that's hardly a guarantee; in 1941, FDR named Sen. James Byrnes, who lasted just over 15 months and was t bust. Clinton could turn to law professors who have we] I articulate(] their liberal leanings: Laurence Tribe of Harvard, Dean Guido Calabresi of Yale or Kathleen Sullivan of Stanford (not to be confused with the Weight Watchers doyenne); any of them, Tribe especially might provoke confirmation Armageddon. A president never I knows-which is why Clinton might be best off with supposedly the most predictable liberal in his camp. It would be one way to get Hillary out of the house.
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