Change in the Supreme Court
THERE is a clear risk of overanalysis at a moment of historic change, such as now with the stepping down of Chief Justice Warren E. Burger from the United States Supreme Court and the nominations of Associate Justice William H. Rehnquist to succeed Mr. Burger and of Antonin Scalia as a new associate justice. New responsibilities can have their impact on individuals like Mr. Rehnquist and Mr. Scalia and alter the path of their previous judicial records. There is no way to determine whether the new cases that will be brought before the high court over the next few years, not to mention the next decade or more that they may serve, will touch on the areas in which their reputations have been made; more than likely they will not. The weight of legal precedent will bear on their decisions. So will the importuning, however they perceive it, of the public will as the debate on national issues evolves. So will their own conscience. The regimen of their past professional training. The arguments of legal scholars. The discipline of internal high-court debate.
It can broadly be said that the two nominees advanced for Senate confirmation, one already sitting on the Supreme Court and the other a federal appeals court judge, reflect the Reagan administration's conservative preferences. The two are regarded as intelligent, persistent, and persuasive. They will come under close scrutiny during Senate confirmation hearings for their views on such politically sensitive topics as abortion, libel law, the status of federal agencies, and church-state relations, where warning flags have already been raised. Their professional credentials, however, would appear to give them the benefit of the doubt for Senate approval.
President Reagan is to be commended for nominating individuals known for energy and ability, rather than rewarding longtime friends and supporters such as Sen. Paul Laxalt and Attorney General Edwin Meese, to cite just two of an oft-mentioned list. Some might have preferred that the President use the opportunity to elevate Associate Justice Sandra Day O'Connor to the chief-justice position, if he wished to choose from the conservative side of the bench. But his nominees can stand on their own on the basis of professional merit. Rehnquist would be expected to set a quick, productive tempo for the court, though he might have to work more at consensus-building in his new position to be an effective leader. Scalia would be counted on to participate vigorously in bench deliberations.
A word about the retiring chief justice: During his 17 years at its helm, Mr. Burger brought a sense of middle-American values to the court, a humane concern for treatment of prisoners and their prospects for a useful life after release, a passion to reform what he perceived as an overburdened legal system. It must be difficult if not impossible to lead a group of independent-minded justices who are elected in effect for life. Burger has epitomized the spirit of public service, however, and can be taken at his word that he has chosen to retire not out of dissatisfaction but in order to direct the 200th anniversary celebration of the United States Constitution, set for 1987.
Many observers constantly worry about the direction the Supreme Court might go. By and large, however, the United States Supreme Court has been doing just fine in overseeing the evolution of American law.
Given more men and women of ability and good conscience to serve, who put the law above their private predilections -- which is one way to define professionalism -- we look forward to its continued progress.
