Robojudge

By HARVEY SILVERGLATE  |  June 11, 2009

There are some who believe that, given the present composition of the Supreme Court, Stephen Breyer is exactly the right choice. Former Harvard president (and, before that, dean of the law school) Derek Bok told the Harvard Crimson that the Court has for some years been "a bit too politically divided and motivated," and that the Breyer nomination was a step in creating a court more likely to "retain widespread respect."

Harvard Law professor Alan Dershowitz, who knows Breyer well (Breyer has taught at Harvard Law), gave the judge his highest praise, telling the Crimson that Breyer was not only a potential architect of "a liberal consensus which will marginalize the extreme right and give much more power to the center left," but was someone who, at long last, would provide an intellectual match for Justice Antonin Scalia, who currently anchors the Court's right wing.

A variation of this view – that Breyer will help consolidate and give an intellectual voice to the Court's emerging center – is espoused not only by most of Breyer's Harvard and judicial colleagues, but by a variety of other legal commentators.

But at this point in the Supreme Court's history – bereft as it is of zealous, consistent, and impassioned advocates of individual liberty and equality before the law – does the Court need someone like Stephen Breyer? Wouldn't justice be better served by a passionate freedom-fighter like Hugo Black, William Douglas, Louis Brandeis, Earl Warren, William Brennan, Thurgood Marshall – even Harry Blackmun?

Perhaps the president's political and personal troubles simply made the risk of such an appointment unacceptable to him and his handlers. If so, it was an opportunity lost.

Clinton should have spent some political capital and picked a justice with the kind of "overarching philosophy" and "distinct agenda" that spark controversy. Certainly there's room for such a justice among the conservative ideologues and centrist technocrats who comprise today's Court.

Without at least a couple of such members, it is unlikely the Supreme Court will reach for – much less attain – greatness.

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