Where Are The Giants?

Whatever has become of the U.S. Supreme Court-a constitutional landscape once roamed by legends like Story, Holmes, Brandeis, Cardozo?

When Bush last week called Clarence Thomas, his court nominee, "The best person" for the job, he obviously was exaggerating. Thomas was neither pre-eminent scholar nor brilliant lower-court judge nor prized lawyer. He wasn't even the runner-up last year when Bush selected David Souter to replace Justice William Brennan. Thomas simply was a man of the moment: conservative, to be sure, but mostly that the political process seemed to demand. Ever since 1987, when Robert Bork's nomination to the high court imploded, the politics of naming prospective justices has shifted. Give President Reagan credit for having the guts to pick Bork-a distinguished, if controversial, jurist who had forged a career built on challenging assumptions. The senators rejected him-- quite their privilege--because they didn't share his well-honed constitutional vision. Reagan understood the message: he gave the Senate Anthony Kennedy, who had none of Bork's incendiary paper trail as well as little of his intellect.

Yet Kennedy has generally turned out to be as ideologically conservative on the court as Bork would have been. Bush built on the lesson. He named Souter, an obscure judge from New Hampshire. Aptly dubbed the Stealth nominee, Souter soared through confirmation. Now comes Thomas, more visible than Souter but only on affirmative-action issues.

In the strange annals of Supreme Court nominations-- there have been 146, with 105 earning confirmation-- appointing the "best" has almost never been the goal of presidents. They've had more pressing matters on their minds: rewarding cronies, pacifying rivals, ridding Congress of political pests, getting friendly votes on the bench and religion. What sets the current court apart, though, is the narrow life experiences of its members and the way in which new justices are likely to be scouted out.

On the court led by Earl Warren in the 1960s, for example, these prior careers were represented: governor (Warren), U.S. senator (Hugo Black), blue-chip lawyers (John Marshall Harlan and Abe Fortas), New Deal reformer (William O. Douglas) and deputy attorney general (Byron White). Agree or disagree with their opinions, most court historians agree that this was an impressive lineup of juridical sluggers. By contrast, on the court now, besides White, are a former Justice Department official (William Rehnquist) and five former lower-court judges. Only one of them, Antonin Scalia, also a former law professor, has shown any of the intellectual wattage that marked the Warren court. "There is a mediocrity on the court we haven't seen since the Truman administration," says Stanford law professor Gerald Gunther.

Few presidents set out simply to put brilliant jurists on the court. Indeed, only once has a nominee been selected purely on merit. In 1932 there was a national consensus that Benjamin Cardozo, a New York state judge, belonged on the high court. President Hoover was a Republican, Cardozo a Democrat and a Jew; Hoover yielded and nominated Cardozo. Another time, a president actually chose a nominee for his lack of merit. In 1970, following the Senate's rejection of Clement Haynsworth Jr. for Fortas's seat, Richard Nixon tried to teach the Senate a lesson by naming G. Harrold Carswell, a singularly unimpressive federal judge. The nomination was voted down, but not before Sen. Roman Hruska's memorable argument that mediocre people were also "entitled to a little representation."

In choosing nominees, presidents have had all sorts of criteria. Among George Washington's: distinguished Revolutionary service, a Federalist background and a "favorable reputation with his fellows." In 1864 Abraham Lincoln named the conniving Salmon Portland Chase as chief justice in part to get him out of the cabinet. Franklin Roosevelt told his "Western" nominee Wiley Rutledge, "Wiley, you have geography!" Dwight Eisenhower chose Warren as chief to pay off a debt from the 1952 Republican presidential convention. Until recently, religion has been important in court nominations. The Roman Catholic seat (first occupied by Chief Justice Roger Taney in 1836) has been filled almost continuously since 1894. The so-called Jewish seat existed from 1916 to 1969.

Even with those imperfect selection methods, some great justices emerged. When Senator Black, a staunch New Dealer, was named by FDR in 1937,he was viewed as inexperienced and only marginally competent. Yet, in 34 years on the high court, he grew into one of the great justices. Others, with similarly little or no judicial experience, would also be highly regarded: Warren, Douglas and Felix Frankfurter.

Supreme Court justices have long been the wild cards in American government. They serve for life, and their jurisprudence evolves in unpredictable ways. Who can know how today's nominee will act in the long tomorrow? The trouble is, the defeat of Robert Bork has undermined what little integrity there was in the selection process. Friend, judge, civil servant-it matters not. What President Bush has looked for is candidates who've had precious little to say about most things. This may be politically necessary, but it's not wise. And it suggests a Supreme Court destined to be without the giants that have so enriched its legacy,