Dilettantism, Washington-Style

I probably wasn't the only one whose lips puckered on hearing the news of Justice Harry J. Blackmun's impending retirement. I mean no disrespect to the justice (nothing excessive, anyhow)--I simply relish the possibility of witnessing yet again that greatest of American political spectacles: the Senate confirmation hearings.

If the conventional Washington wisdom is on the mark, this year's installment should be particularly compelling. The Judiciary Committee will be pitted against a friend and a colleague, Sen. George M. Mitchell (D-Maine). Compelling yes, but probably without the rhetorical bombast and incendiary accusations that have tainted some recent hearings (no, not Bader-Ginsburg).

There will be no fireworks because senators--their political allegiances notwithstanding--tend to coddle each other, to pat each other on the back. You needn't be a closet Kantian to understand their moral calculus: unearth unseemly moments in his past and he'll have his staff pore over your third-grade evaluations until your own paper-trail of moral excesses emerges.

Senator Mitchell's hearing will be a show trial if ever there was one, and that is disturbing. I am not of the belief that the committee should demand that he proffer a catalogue of his future votes. The very suggestion that a would-be justice should gaze into his jurisprudential crystal ball and render all future verdicts is laughable. Still, the committee's critical orientation must not be abandoned, as I am afraid it will be in this case.

That is not my only concern with the possibility of nominating a senator to the post of Supreme Court justice. I have a gripe against politicians sui generis (Latin and the law go well together) being nominated to our nation's highest court.

In their infinite wisdom, our Founding Fathers created a republic whose political power did not inhere in any individual or institution. Checks and balances--buzzwords from elementary school civics--are the guarantors of the enduring health of our polity.

In trifurcating centralized political power into the executive, legislative and judicial branches, the Founders intended only the first two partake of the creative, dialectical process of law-making. The sole charter of the judicial branch, by contrast, was (and in theory-remains) to interpret the law in a political vacuum, outside the purview of such pesky political concerns as lobbyists or voters. Judges are not policy-makers. They are professional interpreters invested with the challenge of studying leather-bound volumes, not the latest Gallup poll.

Politicians are good and judges are good but they are not interchangeable. They approach the same issues from radically different vantage points--the legislator with an eye towards creating a political reality, the jurist toward explaining a legal reality. When a cross-over is attempted, the result is a violation of our Constitution's spirit and often its letter as well.

The most conspicuous example of this boundary transgression is Chief Justice Earl B. Warren. A. former governor of California, his court was notorious for not allowing the law to get in the way of good policy. The results of such political tampering are not always "bad." Brown vs. Board of Education is the most conspicuous example of a Warren-era decision that was "correct," even as it was based on flimsy legal argument. But despite its morally progressive (and sometimes praiseworthy) agenda, the Warren Court fancied itself a legislative body--and an omnipotent one in that it spoke directly in the name of the Constitution.

Will Senator Mitchell be able to break out of his political mindset and co-opt the intellectual apparatus of a judge? I imagine he probably will, if for no other reason than that he is a former judge himself, with a reputation for even-handedness and ethical stature.

But I would still be willing to sacrifice his candidacy for the court in the name of a principle.

Let's assume the Senator from Maine can change mindsets as easily as he can don a flowing black gown. Still, in the eyes of the American public, will it be clear that, a matter of days after retiring from the Senate, he will speak as an agent of a wholly separate branch of government indebted to a wholly separate set of standards and precedents.?

What would Americans think if Mario Cuomo--qua justice--rendered the death penalty unconstitutional? Even if he had come to his legal decision through a politically unbiased calculation, wouldn't the public at the very least suspect him of bringing his political baggage to the Court? It's not as though Mitchell is the only lawyer in this land.

Intellectual dilettantism is a virtue--its political analogue is probably not.

You wouldn't want the former heads of the CIA becoming president, would you?