GETTING IN GOOD WITH THE BOSS PRE-EMPTIVELY:

There is another sense in which we shall not look upon the like of Justice White again. He was confirmed less than two weeks after his nomination; his hearing lasted 90 minutes.

He was selected not because of partisan ideology, but because of his integrity, accomplishment, and life experience. Justice White's subsequent tenure on the bench was characterized by an utter indifference to partisan agendas. He voted against Miranda warnings, against extending the First Amendment in novel ways to protect the media against meritorious libel charges, and against Roe vs. Wade.

At the same time, he voted for one-man, one-vote reforms, insisted on school desegregation even if it required raising taxes and busing, and supported Congress's use of racial preferences to remedy past discrimination.

If one theme ran through Justice White's jurisprudence, it was a confidence in the people's elected representatives, rather than the unelected judiciary, to experiment and solve society's problems, so long as the procedures used were fair and the opportunity to participate was open to all. But in each and every area, Justice White sought, as he put it often, to "decide the case," not to advance any ideology.

Despite his independence (or maybe because of it), many on both the left and right grudgingly came to respect the justice that they could never take for granted and whose vote they had to win in each and every case with their best legal arguments.

The judicial confirmation process today bears no resemblance to 1962.

Today, there are too many who are concerned less with promoting the best public servants and more with enforcing litmus tests and locating unknown "stealth candidates" who are perceived as likely to advance favored political causes once on the bench.

Politicians and pressure groups on both sides declare that they will not support nominees unless they hew to their own partisan creeds. When a favored candidate is voted down for lack of sufficient political sympathy to those in control, grudges are held for years, and retaliation is guaranteed.

Whatever else might be said about the process today, excellence plainly is no longer the dispositive virtue, as it was to President Kennedy. [...]

Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton's solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving "hot-button" issues.

As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. Roberts, nominated almost a year ago, still waits for a hearing -- and sees no end to the waiting in sight. In fact, this is the second time around for Roberts: he was left hanging without a vote by the Senate at the end of the first Bush administration. So much for promoting excellence in today's confirmation process.

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