- The Washington Times - Tuesday, March 5, 2002

If unexcelled lexicographer Sam Johnson were to offer a contemporary definition of the Senate Judiciary Committee, whether controlled by Democrats or Republicans, he would quill: "A cemetery for judicial nominees featuring mental faculties effervescing with challenges to conventional wisdom."

And what a tragedy for the law. Original and towering intellects are desperately needed on the federal bench to rescue jurisprudence from abject reverence for the past and political correctness, no matter how antiquated or benighted. As Justice Oliver Wendell Holmes lamented in "The Path of the Law": "It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."

Beginning with Judge Robert Bork's ill-fated nomination to the Supreme Court, however, brilliance that questions mainstream thinking or assails ascendant political dogmas has been routinely suspect before the Judiciary Committee. Even one false step has proved fatal, as though Shakespeare should be expunged from the literary pantheon for one awkward couplet.

Thus, Senate Republicans defeated Bill Clinton's nomination of Missouri Supreme Court Justice Ronald White to the U.S. District Court by high-octave attacks on an isolated dissent against a death sentence. At present, President Bush's nomination of District Judge Charles W. Pickering to the U.S. 5th Circuit Court of Appeals seems destined to shipwreck in the Judiciary Committee, chaired by Sen. Patrick J. Leahy, Vermont Democrat, largely because the nominee said and did things years ago during the civil rights struggle that offends contemporary political correctness within the Democratic Party.

Indeed, the leader of the Congressional Black Caucus has assailed the brother of slain civil rights icon, Medgar Evers, as a Judas for supporting Judge Pickering.

The White and Pickering cases are but the tip of the iceberg. The post-Bork Judiciary Committee has unambiguously signaled the White House against judicial nominees who have ever said, written or done anything that would be controversial under a contemporary lens. But all serious matters are controversial; to sit out the intellectual fight bespeaks meekness, not a quest for truth.

Thus, the committee's standard blocks would-be judicial giants in favor of mediocrities and anonymities already vastly overrepresented on the bench and largely responsible for legal rigor mortis; the crown jewels of the legal world, whether liberal or conservative, are blacklisted as too politically costly and dicey. (I refrain from illustrative names heedful of Lyndon B. Johnson's exasperation that each of his judicial appointments yielded one ingrate and countless enemies).

The result arrests the evolution of enlightened judging by too great a bow to precedent no matter how ill-conceived or discredited. The science of law, like all other disciplines, skips forward only with irreverent and undaunted minds craving truth and understanding heedless of conventional pieties.

Where would physics be without Einstein questioning Newton? Where would astronomy be without Galileo questioning Ptolemy? And where would constitutional law be without Brown vs. Board of Education (1954) overruling the odious "separate but equal" racism of Plessy vs. Ferguson (1896)?

Indeed, many magnificent chapters of constitutional law have been written initially in dissenting opinions that later triumphed, most notably by Justices Holmes and Louis D. Brandeis. Justice John Harlan's solo dissent in Plessy anticipated the Brown ruling in language and insights that will live for the ages. The Supreme Court has overruled hundreds of cases prodded by thinkers unservile to what has gone before. As Justice Brandeis lectured in dissent in Burnet vs. Coronado Oil & Gas (1932), the court "bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function."

If judicial missteps were infrequent and trivial, then worries over mentally bland or inert nominees parading before the Judiciary Committee would be unproblematic. But they are not. For example, the Supreme Court upheld the constitutionality of unbridled wiretapping or electronic surveillance in Olmstead vs. United States (1928) on the wooden theory that conversations were not specifically mentioned in the Fourth Amendment. Four decades elapsed before that transparent and grievous error was corrected in Katz vs. United States (1967) and Berger vs. New York (1967).

Women were debased by the court as virtual nonpersons under the equal protection clause of the 14th Amendment for more than a century. The now-discredited freedom-of-contract doctrine of Lochner vs. New York (1905) prospered for more than three decades.

Like the White Rabbit in "Alice in Wonderland," lawyers are always struggling to catch up with time because their catechism is backwardlooking and infatuation with precedent. What provoked the uxorious Mr. Bumble to ridicule the law as "a ass, a idiot" in "Oliver Twist" was the persistence of the ancient common law doctrine that husband and wife were one in the eyes of the law and that the one was the husband.

Shouldn't the Judiciary Committee mitigate these evils by encouraging the White House to submit judicial nominees dazzling with deep intellects, no matter how politically explosive? Shouldn't the committee by chastened by pondering the eight-cylinder opposition from conventional legal circles to the appointment of Justice Brandeis, who today is universally apotheosized by jurists, academics and practitioners alike?


Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.


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