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Scandal Without End, Amen

Should Law Be Politics Savvy? By Daniel H. Lowenstein

March 22, 1998|Baniel H. Lowenstein | Daniel H. Lowenstein is a professor at UCLA Law School and the author of "Election Law."

Last year, the U.S. Supreme Court ruled that Paula Corbin Jones' sexual-harassment suit against President Bill Clinton could go forward while he was still in the White House. That decision caused what many are now calling the Lewinsky scandal.

True, the Supreme Court's decision was not the only cause or the most important one. It was what we in law schools like to call a "but for" cause. But for the Supreme Court's go-ahead, Monica S. Lewinsky, Linda R. Tripp and Kathleen E. Willey would be household names only in the households of their families and friends.

If the Jones case had been put on hold, there would have been no depositions. If there had been no depositions, there would have been no occasion for Clinton allegedly to commit perjury or suborn perjury by others.

For better or worse, seven men and two women made a decision that, so far, has shaped the political agenda for several months--with no end in sight. Not too many decisions by judges have had such immediate and dramatic effects on political life.

But in ways less visible to the general public, the Supreme Court exerts enormous influence over government by the people in America. Since 1964, the court has revolutionized the methods for electing members of Congress, state legislatures and countless local bodies; laid down the limits for regulating campaign finance; set the bounds for direct legislation by voters through the initiative process, and restricted the ability of states to structure political parties. Those are just a few highlights.

Who are these people who set the terms by which Americans can govern themselves? What, in particular, do they know about politics and government?

One way to approach that question is to ask about their political experience. Only one, Justice Sandra Day O'Connor, served for a time in a state legislature. (Drop the Arizona district she represented into a California Senate district, and you will never find it again.) Another, Justice Clarence Thomas, headed a small federal agency.

That's about it. The rest of the prior experience on the Supreme Court consists mostly of private law practice, law-school teaching and judging on lower courts.

It hasn't always been that way. Consider some of the best-known members of the court only a few generations ago. Chief Justice Earl Warren had been governor of California. Hugo L. Black served in the U.S. Senate. Robert H. Jackson was attorney general of the United States. Felix Frankfurter and William O. Douglas were important framers of the New Deal.

Admittedly, experience is only a rough indicator of political understanding or wisdom. John Marshall Harlan demonstrated both during his tenure on the court, though he had no particular political experience. Judgments will vary on which justices possess these qualities. My own opinion is that not since Justice Byron R. White retired in 1993 has there been a single justice with anything close to the political understanding of a Warren, Frankfurter or Jackson.

It is not only on the Supreme Court that decisions profoundly affecting our political system are being made by political naifs. To return to the Lewinsky affair, consider those two adversaries, independent counsel Kenneth W. Starr and Clinton attorney Robert S. Bennett. Even their fiercest critics generally concede that each is an excellent lawyer. But both have been criticized, even by persons sympathetic to their causes, for making decisions on what seem to be narrow legal grounds, without regard to the political setting.

Is it a bad thing that legal and constitutional questions profoundly affecting U.S. democracy should be guided by lawyers and made by judges with no experience and no particular understanding of how politics and government work at high levels? After all, don't we often say emphatically that we want judges to decide these questions on the law and, above all, not on political grounds?

We not only say it, we act on it. To take an important example: Almost all the justices appointed to the Supreme Court in the past few decades have had previous judicial experience. Why? Because presidents figure a nominee without such experience will have a hard time getting confirmed. No nominee has been challenged by senators for lacking electoral or Cabinet experience. By current standards, Warren, Jackson and Frankfurter, among many others, would have been practically ineligible for the court.

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