Departments
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Week of 10 October 1997 |
Vol. I, No. 7 |
Feature
Article
Two new LAW profs have the lowdown on the high court
Reading left to right
by Eric McHenry
Before his highly publicized Supreme Court confirmation hearings in 1987, Robert Bork was best known as the man who fired Archibald Cox. Under pressure from Richard Nixon, whose presidency was in a tailspin, then-U.S. Solicitor General Bork had dismissed Cox, the special prosecutor appointed to pursue the Watergate case.
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Ward Farnsworth
(left) and Gerald Leonard bring experience clerking
for U.S. Supreme Court justices to the BU School of
Law.
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It was one of a series of dismissals from the Nixon administration that came to be known as the Saturday Night Massacre, and it has haunted Bork. It might even have cost him that seat on the high court.
And his rejection, according to Associate Professor of Law Ward Farnsworth, has in turn haunted the entire judicial nominating process. Farnsworth discusses the "Bork business" in a ninth-floor LAW office that was until recently occupied, as it happens, by Visiting Professor of Law Archibald Cox.
"I think there's no question that the fear of controversy, the fear of not having a nominee confirmed, is a major constraint on the Supreme Court nominating process now," says Farnsworth, a new member of the law school faculty, who spent a recent year clerking for Supreme Court Justice Anthony Kennedy. "The Bork nomination seemed to change all the rules."
Gerald Leonard, the current occupant of Cox's old office, agrees. Another recent Supreme Court clerk (for David Souter) and new addition to the LAW faculty, Leonard adds that although it might narrow the initial field of judges considered for an appointment, the Bork precedent has not adversely affected the quality of the court.
"I think, as Ward suggests, it is perfectly possible, with examples like [Ruth Bader] Ginsburg and [Stephen] Breyer [Hon.'95], to appoint people who are as qualified to do the job as you could possibly want," he says, "without really having to worry about whether they can get approved or not.
"On the other hand, it's true that there are other potential candidates who are just as qualified, but who have backgrounds that will make them somewhat more controversial. Now, should those backgrounds be relevant to the approval process? Maybe, maybe not." The term background, it is clear, encompasses much more than extrajudicial actions such as Bork's firing of Cox. It also refers to a candidate's political temperament -- the "paper trail" he or she has left. In the tit-for-tat sphere of congressional politics, Farnsworth and Leonard suggest, bitterness over the rejection of Bork has probably preempted liberal nominations.
"Clinton's appointments," Farnsworth says, "have not been anywhere near as liberal as Reagan's were conservative, and one reason for that, I think, is the desire to avoid controversy. Bill Clinton could have appointed Laurence Tribe to offset Antonin Scalia, who was also an academic before he came to the bench. Some people wish Clinton would do something like that, because they feel that what Scalia needs is a counterweight. And there are other judges out there, like Stephen Reinhardt in the 9th Circuit, who I think would not even be considered for an appointment today just because he's written too many things that anger conservatives."
"The Bork nomination, and the way it played out, cuts two ways," says Leonard. "On the one hand it stands as a precedent for raising obstacles to a nomination that probably wouldn't have been raised in years before, but on the other hand, there was a heavy backlash. People don't want to be accused of trying to ÔBork' a nomination."
Clarence Thomas, he says, was one beneficiary of the backlash. But for Anita Hill's accusations, Thomas would have been confirmed rather easily, despite the ideological red flags he raised for many.
"People simply did not want to replay the Bork business," Leonard says.
The most conspicuous effect that fallout from the failed Bork nomination has had on the court, Farnsworth and Leonard suggest, has been a sort of jurisprudential streamlining.
"What's striking now," Farnsworth says, "is that you routinely have 9-to-nothing decisions by this court on matters that would not have been unanimous 10 or 15 years ago, when you had a Justice William Brennan or a Justice Thurgood Marshall.
"So even the more liberal appointees have to be seen from a broad perspective. They're relatively conservative in the greater scheme of things, and also conservative in the old-fashioned sense -- being fairly cautious, not wanting to do anything radical, regardless of politics."
Kenneth Simons, a LAW colleague of Farnsworth and Leonard, concurs. But he says the homogenization of the court was decidedly under way when he clerked in the early '80s for Thurgood Marshall.
"It was very frustrating for Marshall," Simons said. "He found himself dissenting in most of the cases he considered important, even then."
Marshall, Simons says, was a living link to the United States' legal past and one of the few justices in history who would have been "justly famous" even if he'd never served on the high court. He had been a prevailing attorney in many early civil rights cases, including the seminally important 1954 Brown v. Topeka Board of Education decision, which held that mandated school segregation was unconstitutional.
"He had been on the [Earl] Warren Court," Simons says of Marshall, "and felt he was now seeing overturned much of the case law he'd helped create."
Clerking for a Supreme Court justice is the aspiration of innumerable law school students. Granted the honor, Leonard, Farnsworth, and Simons each spent a year participating in the drafting of opinions, writing legal memos, and reading and screening petitions for certiorari (requests that the court hear a case). The three report that the court in recent years has stanched the number of cases about which it writes full opinions. None is sure of the reasons for the decrease, but all speculate that it may be another sign of the court's growing conservatism "in the traditional sense."
"The number of petitions has been growing every year for some time now," says Farnsworth, "and the number of cases the court takes has been decreasing. Now the court takes fewer than 100 cases per term."
"It's a less activist approach," adds Simons. "The court is less interested in making new law."
Although Simons speaks tongue-in-cheek with his new colleagues about the smaller workload clerks face today, he says he believes that, if anything, the court's increased selectivity has enabled the writing of more thorough, considered opinions.
"We used to say that you should look with greater skepticism upon opinions written in June," he says, "because there's such a crush of cases at the end of each term.
"I'm sure clerks today are working every bit as hard as I did," he adds with a chuckle.