Who Will Keep the Liberal Flame, if Not Breyer? : Supreme Court: We need a jurist with a passion for justice, not another technocrat.

This is intended as a personal appeal to a colleague and friend, Supreme Court nominee Stephen Breyer.

There are so many people who desperately need your understanding and compassion. The sad truth is that you are not only succeeding Harry Blackmun. You are the only potential successor to William Brennan, Thurgood Marshall, Earl Warren, William O. Douglas and the whole line of humanitarian justices who understood the importance of compassion and the need to do justice, not just administer law. There are lots of able technicians who understand law. The nation, however, is entitled to at least one justice with vision, with breadth, with idealism, with--to say the word despised in the Clinton Administration--a liberal philosophy and an expansive approach to jurisprudence. Someone must carry on the work of the court’s great progressive thinkers--the justices who ended de jure racial segregation, brought us one man/one vote, opened the courts to the poor and needy, established the right to counsel for all defendants, gave women true legal equality. It was progressive justices with a view of the Constitution as a living, breathing document who gave full measure to that instrument--not the legal technocrats, not those whose view of the Constitution was frozen as of 1789.

You have a wonderful opportunity and an awesome responsibility. You can be a narrow, cramped proceduralist like Felix Frankfurter, or you can seize the occasion and grow like a Warren, a Brennan, a Blackmun. You can be cold, purely intellectual and wholly technical, or you can become what the President said he was looking for--a justice who is compassionate, who has a big heart.

I hope you will re-examine your judicial philosophy. Everyone who goes on the court should. And when you emerge, I hope it will be to assume the mantle of the Brennan-Warren legacy. Otherwise, that voice will be silenced--perhaps permanently. How ironic if that would be the enduring consequence of electing a President supported so strongly by the poor, the needy, minorities of all kinds.

Anyway, I am most hopeful for the court and the country with you there. Perhaps I’m influenced by my personal feelings, but I believe that you will not let the spirit of liberalism be extinguished, that you will be a strong voice for a philosophy that now has no other means of expression. It simply cannot be otherwise--not after all that your spiritual predecessors have fought and struggled for, including the marvelous and caring justice for whom you clerked, Arthur Goldberg. You represent an awful lot of hopes, dreams and aspirations--a vision of a nation. For better or for worse, those who depend on the court to protect their fundamental rights must now look to you. You are their best and last hope.

As I listened to the minority leader of the Senate say, “He’s not as liberal as Blackmun,” and as I heard Sen. Orrin G. Hatch (R-Utah) express his joy over your selection, I thought of how important it is to have scruples and convictions and to stick by them. How I hope that those who disdain the expansive and humanitarian philosophy of the Warren / Brennan court have misread you.

Conservatives who fight for what they believe in deserve respect and admiration. It is hard to have those feelings for others who are easily intimidated, who fear controversy, who care only about compromise and consensus or their own success. There are plenty of centrists around.They now represent the left of the court. While I rarely agree with Chief Justice William H. Rehnquist, I respect him. When he was appointed to the court, he was a lone voice for a judicial philosophy of the right. He was regularly on the short end of 8-1 votes, but he spoke for an important point of view and he almost single-handedly kept alive the principles in which he believed. They now dominate our judicial thinking. I don’t expect you to be that successful, but at least give us a voice.

The court has lots of intellect. While you will add to it, Justice Antonin Scalia represents abstract rationality well enough. But soul is important too. That is what makes greatness.