Commentary: What we should want in a Supreme Court justice

Now that the heated and politicized debate is over on the nomination of Judge Neil M. Gorsuch to the Supreme Court, I would propose that we step back and examine what makes a fine justice apart from judicial philosophy, except in the broadest sense of commitment to our system of law, and apart from personal qualities of the person.

I look to the following former justices as exemplars of the best on a court that is, as Judge Richard Posner wrote, a committee of senior lawyers:

Justice Felix Frankfurter. So important was he to the foundational questions surrounding federal jurisdiction that the premier textbook on the subject was dedicated to him. Jurisdiction is especially important when dealing with a branch of government that gives itself (by longstanding authority, i.e., Marbury v. Madison) the last word on statutory and constitutional interpretations.

A self-conscious approach to the exercise of essentially unbounded power is essential. It matters whether or not this unelected branch of government actually is vested with the constitutional and statutory right to act at all in a particular case or, even if it has such power, whether it can exercise that power in a particular way.

In teaching federal jurisdiction from Hart & Wechsler, I was impressed with the seriousness of purpose and honesty in approach that Frankfurter employed in deciding questions on the proper role of the Supreme Court and federal courts in our system of government. He punted on the issue only once, as I recall from some decades ago, in a footnote on jurisdiction of plain-vanilla cases involving bankrupt entities.

Most justices do not, I fear, give proper thought to the constraints on their own power. That goes for justices across the spectrum in judicial philosophy. Wanting to decide an issue and having the right to do so are two different questions. And the latter comes first.

Justice Robert Jackson. Quite possibly the best writer ever on the court. Clear, clean, persuasive. A judge has a professional obligation to explain herself or himself. He or she owes that first and foremost to the litigants, but also to other courts. An appellate court should be presented with the facts and reasoning so that it can make an informed decision as to whether to affirm or reverse. An appellate court should be clear because its rulings bind courts below it. The obligation for clarity is at its height when the Supreme Court issues an opinion. Jackson performed this part of his job extremely well.

Jackson wrote a justly famed concurrence in the Steel Seizure Case. He ruled against Harry Truman. His loyalty was to the United States and the Constitution, not to the party whose president (Franklin D. Roosevelt) appointed him.

Justice Byron White. I came to admire White tremendously when I was a law clerk on the court.  Justice White approached his job with energy and a verve that came close to joy. He had a great time. Every conference mattered, every case mattered, every opinion mattered no matter who authored it. I was approached by one of his law clerks who expressed concern by White that one of the footnotes in a draft opinion might be inconsistent with an opinion that the justice joined some years before. That was extraordinary. That should be a matter of course.

His integrity demonstrated itself in other ways. He stepped down from the court while he was still capable of performing the job, even at the high standards he set for himself. He did so with the near certain knowledge that his replacement would be far more liberal than he. I believe that he felt a moral obligation to surrender his seat during an administration headed by a president of the same party as the president (John F. Kennedy) who appointed him. His replacement was Ruth Bader Ginsburg.

Each of these aforementioned justices was appointed by a Democrat. Frankfurter was reputedly not a particularly nice or warm person. Jackson not only did not go to Harvard or Yale, he had no law degree: he was admitted to the bar by reading law, the last justice to do so. White was a man of principle, flinty and tough but utterly true to himself. Yet each justice, through their service on the court, exemplified the finest qualities of what this country deserves in this important office.

Arthur F. Fergenson is senior counsel with Ansa Assuncao LLP in Columbia and a member of The Daily Record’s Editorial Advisory Board. The views expressed here are his own. He can be reached at Arthur.Fergenson@ansalaw.com.

Published by permission of the Maryland Daily Record, All Rights Reserved.

Arthur F. Fergenson is a Senior Counsel in our Maryland office.