Needed: an independent Supreme Court, not a White House mirror
In 1937 Franklin D. Roosevelt, riding the crest of a landslide reelection victory over Republican Alfred M. Landon, decided to take on his other political nemesis: the Supreme Court of the United States.
FDR, whose New Deal policies were thwarted time and again by what he regarded as a fossilized judiciary, constructed an ingenious plan to ''pack the court'' by appointing one additional new justice (up to a total of six) for every sitting one over the age of 70. That way, youthful liberals would ultimately balance off the aged conservatives who constituted the court's majority.
Congress torpedoed the President's plan, but not before a constitutional crisis nearly resulted. In the end, Mr. Roosevelt won a victory of sorts when one of the staunch conservatives on the court decided to retire. And a few of the moderates - reportedly influenced by the election mandate - modified their positions and reluctantly accommodated New Deal programs.
During his 14-year White House tenure, FDR appointed eight justices to the US Supreme Court - more than any other president since George Washington. His liberal philosophy of government was perpetuated in his judicial appointments and extended right through the Warren court of the 1950s and '60s.
Today, however, the court is tilting to the right - as a result of a scattering of conservative appointments by Republican Presidents Nixon, Ford, and Reagan. And whoever is elected to the White House on Nov. 6 may well, in the course of four years, get the chance to reshape judicial direction right into the 21st century. Six of the justices are past the traditional retirement age; among them are three in their upper 70s.
Court-packing, therefore, may be possible without constitutional or congressional change. And the controversy surrounding its potential has swirled through the election campaign.
A Reagan reelection, the President's critics say, would set the stage for high-court appointees who could, among other things, knock over completely already-cut-back protections for criminal defendants, such as the so-called exclusionary rule (which excludes from court evidence obtained illegally) and the reading of rights to those accused of crimes (as required by the Miranda ruling). Big business could enjoy big gains, as antitrust laws fall by the wayside. And highly controversial, razor-thin-majority decisions allowing abortion and banning school prayer could be abruptly reversed.
On the other hand, a Mondale win could at least start to stem the conservative tide. The court's youngest members, Justices William Rehnquist and Sandra Day O'Connor, lean farthest to the right. And they are likely long-term tenants. However, Justices William Brennan and Thurgood Marshall - now the court's liberal bulwark - could well retire in the near future. Mondale in the White House could preserve at least part of the Warren court's civil-rights, individual-liberties legacy.
The underlying question: Is it fair game for a US president who will be in office for only four or eight years to stack the court with appointees of his philosophical persuasion, appointees who may serve 25 years or more?
Some say it is not. And there have been a range of suggestions for structural reform, including appointing justices to a limited 10- or 15-year term (rather than for life), and restricting appointments to the court by any single president to two or three. The former is probably as politically unfeasible as FDR's expando-court packing plan. The latter is even less likely to occur.
Justice Rehnquist recently defended a president's right to appoint those who are philosophically close to him. But he insisted that a life-tenured member of the US Supreme Court is apt, in the long run, to remain independent not only of the chief executive who appointed him but of Congress and court colleagues.
This has often been the case, but not always. The late Earl Warren was elevated to the Supreme Court by President Eisenwhower. Chief Justice Warren's sweeping liberal decisions and civil libertarian direction later proved to be anathema to the more conservative Eisenhower. At the same time, Associate Justice Byron White, an appointee of John F. Kennedy, has voted much more conservatively than his mentor might have wished.
Judicial independence is a source of pride for most jurists - at every level. Former Associate Justice Potter Stewart called the US Constitution his only ''boss.'' Mr. Stewart often confounded court-watchers by his unpredictable voting record. He decided cases rather than endorsing one political philosophy or another.
Of course, a discriminating Senate provides an important check through confirmation or rejection of court appointees. However, it is important that judicial and personal qualifications, rather than partisanship, remain the congressional standard.
And this goes, too, for the chief executive. A US president must resist the temptation to ''pack'' the court with cronies. Quality judicial appointments serve the public and the cause of justice. They are a key legacy a president can leave to his successors and the nation.