Not a Fifth-Grade Civics Class
God Save This Honorable Court By Laurence H. Tribe '62 Random House; 141 pp.;$17.95
REMEMBER IN FIFTH GRADE how you were taught to respect and revere the president, the Congress and the Supreme Court? Well, Laurence H. Tribe '62, Law School professor and Supreme Court mogul, hasn't forgotten those lessons.
But in recent years, as we've grown up, a lot of us have come to revere those three branches of the government a little less. And the squabbling going on among liberals and conservatives over future appointees to the Supreme Court has managed to tarnish our image of the justice as a man who rises from a philosophically pure world to take his just and thoughtful seat in that large pristine white building in Washington that houses our greatest court.
Nowadays, it seems justices have to waded through a swampy mire of questions such as abortion, school prayer and affirmative action.
Tribe wants to clean up this act. And in God Save This Honorable Court, he outlines the ways to remove the selection of future justices to an ephemeral world of do-good senators, presidents and people who haven't forgotten those civics lessons and want only to maintain the integrity of the court.
And to present his argument, Tribe takes us through a good part of the history of appointment. He argues convincingly that the Senate can and has played a major role in selecting judges, that presidents can, do, and have packed courts, and that they are rarely surprised by what their appointees do in office.
In short, he debunks a lot of myths about the court changing appointees into better and usually more liberal men (or women).
THERE IS NOTHING illogical, uninformed, poorly written or poorly argued in this book. Indeed, it is informative, compelling and well put together.
But dream on, Larry. Do you really think everything you suggest is going to happen?
A lot of people would probably express satisfaction with the Supreme Court today. Sure, most of us have problems--liberals and conservatives both. Either the court is too soft on abortion or too soft on criminals. To liberal and conservative alike, the court has done some pretty outrageous things. But even Tribe argues that he is on the whole satisfied with the court, that it is worth saving.
So what's he worried about? Why is he writing the book?
Anyone who has watched the threat of the Reagan Administration would understand. It seems at least that Reagan poses the threat of appointing not only a conservative court, but, as Tribe might put it, an incompetent court.
There are two strands to Tribe's argument. First, he argues that presidents and the Senate should attempt to appoint people on the basis of broad philosophical orientations and not particular issues. Second, the Senate and President should attempt to balance the court by not appointing too many liberals or too many conservatives.
Both good ideas. Gosh, wouldn't it be nice if they could be achieved.
The possible incompetency of a Reagan court lies in both its possible single-issue orientation and in its imbalance of conservatives over liberals.
Reagan has argued that he would like to appoint justices who are concerned with protecting the rights of fetuses, allowing school prayer, being tough on criminals and soft on race discrimination. But if that were all that a justice had to deal with, then the court Reagan might appoint would be competently conservative.
Unfortunately, Reagan does not set the agenda for the court, and justices have to hear cases on issues such as bankruptcy court jurisdiction, assessing legal fees, and complex antitrust, securities, admiralty, and liability issues.
Lots of judges out there might fit Reagan's criteria on abortion, school prayer and friendliness to big business. But plenty of them are not good judges capable of reasoning and balancing issues that range from the obscure or trivial or unexpectedly profound. And if Reagan chooses a clown, then he might do well by antiabortion groups, but flop for the country as a whole.
With such reasoning and far more analytical grace, Tribe hopes to persuade the President and the Senate to be moderate. His broad guidelines are to find justices who believe the Bill of Rights should be applied to the states, who believe that the "one-person, one-vote" doctrine is correct, who are neither communists nor capitalist pigs, who will not strike down amendments to the Constitution to outlaw abortion or other issues. He wants judges who are capable of making decisions, who have a clear philosophy about the court's role. In short, he wants very intelligent judges, because if you're conservative, you might as well be intelligent and reasoned about it.
THESE ARE GOOD--but there's something funny about the fact that Attorney General Edwin Meese has recently begun attacking the court for not paying attention to the original intention of the Framers of the Constitution. This is an attitude belittled by Tribe as a futile exercise in historical mind games; it is also important to Tribe that future justices not hold this illfounded ideal. Tribe is probably right on this count. His argument packs a lot of authority and logic, but Meese isn't listening. And why would he?
Tribe's second criterion is that the Senate carefully attempt to balance the philosophical composition of the court. Not too many liberals, conservatives, or fence-sitters.
But given the exigencies of moral rectitude and appeals to what the public wants--and these days, it seems, that's conservatives--it is a rare Senate and President that will look to the future, much less to their fifth grade civics lessons.