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Jewish World Review Oct. 3, 2005/ 29 Elul, 5765

Nat Hentoff

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A missing element in the Supreme Court | With one or more Supreme Court nominees due before the Senate Judiciary Committee, and then the full Senate, during the president's final term, there is a pertinent qualification to consider that hardly came up during John Roberts' hearings — or in most of the bristling media commentaries, pro or con. As legal analyst Stuart Taylor noted in the September issue of Atlantic, "The Court's steady homogenization by professional background has gone largely unremarked."

Taylor, who writes for the National Law Journal and Legal Times, asked: "Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past 35 years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial?" (David Souter, Taylor said, was the exception.)

I knew a New York judge, Burton Roberts, who had been a prosecutor and then had presided over criminal trials. When the first rigid sentencing guidelines went into effect, this judge was resistant, although he was known as a law-and-order jurist. "While the crimes may be the same," Burton Roberts told me, "the individual defendants may be significantly different, and the sentencing judge should be able to take that into account."

And when Justice Thurgood Marshall died, the tributes to him by a number of the justices who had been his colleagues told how he had educated them because of his considerable experience in the trenches as a trial lawyer, including during his long march to the Supreme Court itself, and his victory (long-since attenuated) in Brown v. Board of Education.

John Roberts certainly showed his mastery of the language of the law during his hearings, but his gleaming resume indicated little experience in life outside the law. Born into a wealthy family, he attended private school, Harvard and Harvard Law School, clerked for both a federal appeals judge and U.S. Supreme Court Justice William Rehnquist (who became his mentor), served high up in the Justice Department in two administrations, practiced law in a prominent Washington law firm, and then became a judge in the most influential of the federal circuit courts.

Somehow, that seamless background reminded me of when I was a kid, listening on the radio during the so-called Great Depression to jazz pianist-singer "Fats" Waller from a posh club at a Chicago hotel. Coming to the microphone, Waller said to the nation: "I wonder what the poor people are doing tonight."

The Supreme Court justice I most admire was Louis Brandeis. He grew up in comfortable circumstances and attended Harvard Law School, where he received the highest grades ever awarded there. But in private practice, he became known as "the people's lawyer," and his "Brandeis briefs" revealed abundant details of the shoals and snares of the same "real world" that most Americans know. And Brandeis' 1891 legal article, "The Right to Privacy" — an area expertly evaded by John Roberts in his hearings — was seminal.

Presidents who nominate future Supreme Court justices — and the senators who give advice and perhaps consent — would benefit the nation if they paid heed to Stuart Taylor's advice:

"The Supreme Court is supposed to sit above politics and apart from popular whims. But when a large majority of the Court's justices have never cross-examined a lying cop or a slippery CEO, never faced a jury, never slogged through the swamps of the modern discovery process, something has gone wrong. As the Court has lost touch with the real-world ramifications of its decisions, our judicial system has clearly suffered."

I know a former judge, Andrew Napolitano, now a senior judicial analyst for the Fox News Channel, where he occasionally tries to inform Bill O'Reilly, on the air, of the meaning and historical origins of the Bill of Rights. In his book, "Constitutional Chaos" (Nelson Current, 2004), Judge Napolitano tells that, before he went to the Superior Court of New Jersey, he was a strong supporter of Richard Nixon's law-and-order, pro-police presidential campaign.

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But during his eight years on the bench, Napolitano writes, he became "a born-again individualist, after witnessing first-hand how the criminal justice system works to subvert and shred the Constitution. You think you've got rights that are guaranteed? Well, think again. Because the government breaks the law and denies it, the government is not your friend." One of his rulings forbade New Jersey police from stopping cars on a whim, or for conjectures outside the Fourth Amendment (the right against unreasonable searches and seizures). Napolitano, using "the exclusionary rule," did not allow such "evidence" at trial.

If Judge Napolitano was nominated to the U.S. Supreme Court, he would give the senators and the nation a much deeper understanding of their protections under the Constitution than John Roberts did.

It's a pity that fierce critics of Fox News — who seldom watch it, it seems — don't get the benefit of Judge Andrew Napolitano. John Roberts should also tune in.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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