Judge O'Connor in the long view

Judge Sandra Day O'Connor is soon to face Senate confirmation hearings as the first woman appointed to the Supreme Court. Her nomination triggered a reaction that has focused primary attention on the nominee's attitudes on such issues as abortion and the ERA.

This was predictable in an age of single-issue politics. It also reflects a more general awareness of the central role played in this nation by the Supreme Court -- even by a tribunal that purportedly "interprets" rather than "makes" law. like other special interests over the years, the Moral Majority insists on a court that is "right-thinking" in the event that "political" majorities somehow stray from the true faith.

How reasonable is an obsession with controversial policy issues of the moment? Such a concern fails to provide an adequate clue to an individual's future judicial career that, in this case, could extend well into the 21st century. President Reagan's instincts for broader measures of past and future performance are closer to the mark. Experience also sounds a note of caution to any chief executive tempted to be overly confident in the future behavior of a judicial appointee.

Examples of both points abound. After a first term frustrated by no opportunity to name a Supreme Court Justice, President Franklin D. Roosevelt nominated Hugo Black to the bench in 1937. This aroused concern over the Alabaman's membership as a young man in the Ku Klux Klan. Yet Black's long tenure on the court was marked by a devotion to civil liberties and minority rights.

In his second and third terms, Roosevelt was able to appoint eight new justices to the Supreme Court. But ultimately this "Roosevelt court" began to divide as other issues displaced those of economic regulation that made the court the storm center of the 1930s.

Some appointments to the highest tribunal have confounded friends and foes alike. When President Eisenhower named California Gov. Earl Warren as chief justice in 1953, some liberal scholars termed the move strictly "political" and decried the nominee's comparatively slim legal credentials. Yet most of these critics were later to praise Warren's leadership of a tribunal that brought renewed vigor to the Bill of Rights and restored the court itself to a role in our system of government unmatched since the early long tenure of Chief Justice Marshall.

In an irony of history, Warren's retirement in 1969 permitted his political foe, Richard Nixon, the opportunity to name a successor. Having served as vice president under Eisenhower for eight years, 'Nixon resolved not to repeat the former president's "mistake." In replacing Warren, as in three subsequent Court appointments, Nixon was outspoken in his determination to shape the judicial body in a particular mold. While the resulting Burger court did shift direction somewhat, it did not retreat from an activist role in public policy, as illustrated by such cases as those involving abortion and the death penalty.

Jurists of whatever political persuasion are limited by the very process of litigation and in particular by the force of precedent. This helps explain why the Burger court has not undertaken a wholesale reversal of Warren court decisions. By the same token, it is unlikely that the court in the near future will reverse its 1973 ruling striking down certain state prohibitions on abortion. Nor can it can expected to reverse its 1980 holding that Congress has no constitutional obligation to fund abortions. Journalistic accounts that interpreted these two abortion decisions as inconsistent were confusing the political world of policy preferences with the judicial realm of constitutional adjudication.

Admittedly the line separating "legislating" from "adjudicating" is not always easy to draw. Precedents are often conflicting, conditions change, opportunities for judicial creativity arise. The Supreme Court in the final arbiter of some of the most difficult public questions of the day and frequently is divided in deciding them. But these "votes" are not comparable to legislative votes.

While personal political preferences can at times affect judicial thinking, more significant considerations include a justice's basic scheme of values that look beyond transient political conflicts. The court must interpret general and imprecise phrases of the Constitution and even of statutes. What is the meaning and extent of "equal protection of the laws" or of "due process of law"? Is there a constitutional "right of privacy" and, if so, does it pose conflicts with the "public's right to know"?

What kind of individual can, as a jurist, best cope with questions of this magnitude? In arriving at an answer it is futile to concentrate on a few policy issues only. Clearer indicators would include such personal traits as intelligence, fairness, courage, persistence, common sense, adaptability, patience, an ability to listen, vision.

All thoughtful citizens share President Reagan's hope that Sandra Day O'Connor possesses a full measure of these qualities. If she does, we can also share the President's faith that his nominee is indeed a "person for all seasons."

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