Don’t Confuse Constitution, Constituents : George Mitchell’s considerable skills as a politician would ill serve the nation on the bench.

While there are other names on the list, the betting is on Sen. George Mitchell to emerge as President Clinton’s choice to succeed Harry Blackmun on the Supreme Court. For precisely the reasons the President might prefer Mitchell, I hope he chooses somebody else.

Besides being a sure bet for easy confirmation, Mitchell would bring to the court a dimension that has been missing and that the President believes is beneficial. Mitchell is a politician, and a good one. Which is why he should be dropped from the list, along with Bruce Babbitt.

A politician would bring to the court two attributes that are missing in most other people. Men and women who have run for public office are uniquely sensitive to the desires of the people. While they are often criticized for testing the political breezes, that is precisely what they are supposed to do: represent the people who elected them. And politicians--at least the good ones--are skilled at building consensus, forging compromise. That, too, draws criticism. But in the legislative arena, where one advances ideas incrementally, and problems must be dealt with, the ability to build a consensus behind a middle ground is an indispensable tool.

In addition, politicians are, temperamentally, activists. They are doers. They want to shape society, create change, push the pendulum. Those are precisely the kinds of attributes we ought to look for in candidates for the presidency and for Congress. Those are legislative attributes. A judge has a different task and requires a different psychology. The ideal judge is at home not in the world of on-the-run, make-it-happen decision-making, but in contemplation, in careful deliberation. These qualities are not highly valued by the electorate but they are essential on the bench.

It’s easy to look at the polarization of the current court and become enamored of the idea of finding a mystical healer who can bridge the gap between the “liberals,” whose numbers will be diminished by Blackmun’s retirement, and conservatives like Antonin Scalia and Clarence Thomas. It’s tempting, too, to think of a justice who will be in tune with the public will.

That, however, is not the court’s role. The instincts of a politician are precisely the opposite of those required of a Supreme Court Justice, whose job is to analyze controversy not in the light of the public mood, but by the light of the Constitution. It is adherence to the Constitution that protects our rights as citizens, and those rights are not to be subject to the whim of the majority, nor to the compromises necessary to forge judicial harmony.

When Robert Bork was nominated to serve on the Supreme Court, his selection was hailed by most conservatives, who generally shared his vision of what society ought to be, and opposed by most liberals, who were appalled by the specter of a Borkean society. As a conservative, I shared many of Bork’s concerns, but I had no enthusiasm for his nomination. Bork expressed his distaste for judicial activism by criticizing the court’s tendency to create rights not found in the Constitution. Bork was looking in the wrong place: Our rights are not found in the Constitution. The Constitution defines not those rights we keep, but the rights and powers we give up to the government. All other rights--religious, economic, personal--are ours, and they are ours by birth, not by the sufferance of government.

Bork’s confusion emphasizes the need to protect ourselves against a court that will aim to please the majority rather than to protect the minority. We don’t need judges who will try to understand the shifting sands of public opinion; that’s the job of legislators. We don’t need judges who will try to find compromise; we need judges who will protect our rights with the fervor shown by the Founding Fathers. We don’t need judges whose personalities are geared to activism.

It is true that there have been justices who have moved from elected office to the court, and some have been effective there. In some cases, the nature of the court changed the nature of the man. William Howard Taft served ably both in elective office and on the bench. Hugo Black, once an Alabama racist, underwent a metamorphosis when he changed his white robes for the black robes of the court. Earl Warren, on the other hand, used to using elective office as a means to reshape the world, carried that political mind-set to the Supreme Court with him and redesigned the court’s role, turning it into a super-legislature, unelected and unaccountable. If a politician must be chosen, George Mitchell is probably the best of the lot. But we would be better served to look elsewhere, to keep politics and the court separate, to let legislators legislate and let judges deliberate.