“Mr. Bush, Pick a Genius”: I Beg to Differ

By Theodore T. Hodge



The Perspective
Atlanta, Georgia
July 21, 2005

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In a recent New York Times opinion piece by Mr. David Brooks, “Mr. Bush, Pick a Genius”, the writer urged the president to ignore the national call for balance on the bench. I find Mr. Brooks’ piece very troubling for several reasons. He admonishes President Bush to pick a genius at law, someone whose legal credentials and record are impeccable and awe-inspiring: “someone capable of writing the sort of bold and meaty opinions that will shift the frame of debate and shake up law students for generations.” He strongly urges the president not to pick someone based on popularity or other superficial criteria; identity politics’ is unimportant. According to him, “this is a Supreme Court pick, not a programming choice.”

The first impulse is to agree with Mr. Brooks. I think such advice is phenomenally correct, only if all things were equal. But since we don’t live in a perfect world, all things aren’t. It does become the responsibility of the nation to pursue the noble ideas of pluralism and diversity instead of genius over ordinariness. Someone once said, “Democracy is based upon the conviction that there are extraordinary possibilities in ordinary people”. The majority of the people of the United States must buy into this implied concept; their history is replete with ordinary citizens leading extraordinary lives.

David Brooks urges the president to pick a genius of jurisprudence whose intelligence and performance will leave legal scholars aghast when they review him both contemporarily and in posterity; that will boost the president’s legacy. But one wonders, what should be the president’s legacy? Did he not run as a “compassionate conservative”? Why should his legacy focus on genius, instead of compassion now?

Picking Supreme Court judges should not be about selecting geniuses; it has never been. Sandra Day O’Connor has just retired. Is she a genius? Maybe, but it wasn’t determined in advance. There were others who may have qualified for the status of genius much more easily than she. But she was picked to satisfy a constituent demography; it worked. She will be remembered for the sensitivity she brought to bear in making critical decisions that affect real people. She struck a balance; that is her legacy.

Is Clarence Thomas a genius? Clearly not, he was picked because of his personal philosophy on race and law, which coincided with the philosophy of the man who picked him. Cleverly, Justice Thomas’s selection was presented as appeasing a racial group, the blacks. He has since become a “poster boy” for archconservatives and a “disappointment” for blacks. In any case, he wasn’t picked because he was a genius.

David Souter and Ruth Bader Ginsburg are no geniuses either, although their legal credentials and curriculum vitae are pretty impressive. But is important to note that without their centralist votes, extremists like Thomas, Scalia and Rehnquist would be allowed to run amok. Picking justices should be about creating balance in a dynamic and pluralistic society, not showcasing genius. That has never been the purpose and it shouldn’t be now.

President Dwight D. Eisenhower appointed Earl Warren to the Court in 1953. He was expected to be a conservative, but he turned out to be more liberal than had been anticipated. For example: He supported the desegregation of public schools in “Brown v. Board of Education”; the “one man one vote” cases of 1962-1964, which dramatically altered the relative power of rural regions in many states; Hernandez v. Texas, which gave Mexican-Americans the right to serve on juries; and Miranda, from the case Miranda v. Arizona, which required that certain rights of a person being interrogated while in police custody be clearly explained, including the right to an attorney. (Source: Wikipedia, the free encyclopedia).

Today, Justice Warren is remembered not for his “genius” (although he might have been one) but principally, for his compassion and sense of fairness. He understood that for this society to thrive it had to come to grips with its racial problems, he acted decisively to bring balance and fair play to the table. Earl Warren was an ordinary man whose conviction produced extraordinary possibilities. He consistently demonstrated a sense of fairness and justice towards all, not just his immediate constituents. That made him great.

On the other hand, the Justice who may be considered the “genius” of all time in American jurisprudence was Justice Oliver Wendell Holmes, Jr. He graduated from Harvard and went on to lecture there; he was a scholar, in the true sense of the word. He left his legacy in legal writings. It can truly be said, he was capable of “writing the sort of bold and meaty opinions to shift the frame of debate and shake up law students for generations”. But was he interested in a truly multicultural, diverse and pluralistic society? No. And there is evidence….

In his seminal work, “War Against The Weak: Eugenics and America’s Campaign to Create a Master Race”, the internationally renowned author, Edwin Black tells us Justice Oliver Wendell Holmes openly supported the eugenics movement, which has since been declared “unscientific”, although it operated under the guise of science. It was an attempt at social engineering, which fostered the belief system used by the Nazis to attempt to annihilate the Jews and Gypsies of Germany; its main purpose: create a superior Nordic race.”

Sure Oliver Wendell Holmes was an exceptional legal scholar and maybe a “genius” over whose thoughts legal scholars wrangle and dazzle today. But he was not tolerant of others whom he perceived to be different. He clearly did not exhibit compassion and understanding when he ruled against victims of the eugenic movement. In other words, he applied the law selectively; in his view, we are not all equal. Would I want such a man to make laws regarding my personal life and society in general? Clearly, the answer is no.

I believe the greatest tenet of democracy is its ability and its desire to foster pluralism. This pluralistic composition was demonstrated even during the tenure of Oliver Wendell Holmes, the brilliant jurist from Massachusetts. Again, according to Edwin Black, the Supreme Court bench included “Justice Louis Brandeis, the eminent Jewish human rights advocate and the racist and anti-Semite James Clark McReynolds, who refused to even sit or stand next to Brandeis. The chief justice was former president William Howard Taft.”

What was the benefit of stacking the bench with people of such diverse backgrounds and aspirations? Was it to seek and publicly display “genius”? No. In my view, the Republic was wise to seek balance and to develop a society in which people would be tolerant of opposing views, the hallmark of democracy. That was true then, and it is true today.

One of the greatest judges of the last century, in my humble opinion, was Justice Thurgood Marshall. What is his legacy? He is remembered for being the first black to serve on the bench. He demonstrated untiring compassion before and during his tenure as a justice. He demonstrated concern for ordinary Americans by advocating justice and fairness for all, despite their complexions or social status. He took on the government and huge corporations. He goes down in history as a great American jurist, and blacks and whites can proudly identify with his determination to build a great society.

Sandra Day O’Connor and Ruth Bader Ginsburg will also be remembered as great jurists but also as trailblazers for an important demographic group, women. Selecting women, blacks, Hispanics and members of other minority groups sends a positive message: It says we are a pluralistic democracy. It is symbolically important for the faces on the bench to reflect this rainbow nation.

We remember Judge Robert Bork’s legacy, the man who almost became a Supreme Court Justice. Many who understand the law told the rest of us the man was a genius. Well, that was not enough. Ronald Reagan, who barely ever backed down from a fight had to finally scrawl the name of Judge Bork in the loss column. Judge Robert Bork’s case can be used as a personification of this debate: genius versus character. That argument didn’t sell then, it won’t sell now either. Maybe after all, this is a programming choice, Mr. Brooks. I therefore, urge the president to appoint a justice that will reflect our national diversity; it is more important than displaying genius.