William J. Brennan and David Souter - 27 July 1990

Does anybody present remember Mrs. Patrick Campbell? The big handsome lioness of an Edwardian actress who became a theatrical legend when Bernard Shaw cast her as the first Eliza Doolittle in his play Pygmalion and fell boisterously in love with her.

Of course her stage performances are long gone, with the memories of her ardent fans, who are also long gone. What remain and keep popping up in the essays and reviews of even young critics are her tart and often outrageous remarks about friends and acquaintances in particular, and life in general.

I thought of her when I was looking over a scientific piece the other day on work that’s being done to see if we can build robots that move faster than the ones we use now which are, all of them I believe, constructed with two legs like human beings.

Well Mrs Campbell was once, some,time in the '30s I think, at a dinner party and found herself sitting next to a scientist, a world authority on ants. As far as she was concerned he was a very boring man, an active bore, totally and excitedly absorbed by his own speciality. He went on and on, and she nodded mechanically, at one point he said, “Not only do they have a careful division of labour, a sort of trade union, they also have an army.” Mrs Campbell turned wearily towards him and said, “No navy I suppose.”

Well, an old lady, a scientist retired recently from the Museum of Natural History here in New York, gave a charming interview. What was charming about it, considering the oddity of her speciality, was the gentleness of her manner in contrast with the burning evangelism of the ant expert.

She had given her working life, over 40 years, to one subject and said not only had she no regrets, there was nothing on earth she would rather have devoted herself to. Her subject was the cockroach.

Her young, wincing interviewer put the obvious child’s question – why a cockroach? “Because” she said, “it is the cleanest of all the insects, the most beautiful and because it has a unique capacity to withstand massive radiation. The speculation about its biochemistry is endless, it may be here at thriving if every other living thing, including trees and plants, has been bombed into extinction by nuclear missiles.”

Well, a few weeks ago when I was out in California I came on some work being done across the bay at Berkeley, which has concluded that the cockroach is the very thing to help revolutionise mass production in industry.

And I was about to go into this with you when President Bush suddenly called a press conference at the White House, brought to the lectern a shy, rather hang-dog man, and made an announcement which has flooded the newspapers with argument and speculation and preoccupied the nightly news hours and half-hours almost to the exclusion of what’s going on in the rest of the world.

So I imagined a whole bag full of mail protesting that, in a week when the political bias of the Supreme Court might be set for another generation I was waffling on about the cockroach. Maybe we’ll get around to him at the end. I doubt it. For the time being, we’d better float with what we call the main stream.

The big news only a week ago was the sudden resignation, as of today the man said, of Justice Brennan the last of the great liberal judges on the Supreme Court, a man of such personal charm and intellectual cogency that more than any other of the nine justices he was often able to establish a 5-4 majority in his favour.

Now among all the arguments that have been going on for 200 about what is legitimate, and what is not, in the court’s interpretations of the Constitution, one sentence by a former chief justice, Charles Evans Hughes, has gone unquestioned. The Constitution he wrote, is what the judges say it is, and so it is.

But in the past 20 years or so, since the conservative appointees of President Nixon and President Reagan have overtaken and inevitably, in the course of mortality, replaced the liberal majority established by Franklin Roosevelt, the Constitution has been – far too often for the general comfort – what five judges say it is.

Which means, does it not, that time and again the final decision about what the rights of the individual amount to, what is the unchallengeable law of the land, rest with one judge, the one who breaks the 4-4 deadlock.

I’ve read, in dispatches from new or young foreign correspondents here, pieces which assume that because Mr Nixon and Mr Reagan together appointed what is now a majority of the court, that it is ipso facto the Nixon-Reagan court, a conservative court, because for the past ten years at any rate, we’ve had a conservative government.

Well we haven’t, we’ve had a conservative executive, a conservative president, we’ve also had for 36 years, no less, an overwhelmingly Democrat House of Representatives and the great majority of those Democrats are liberals.

The Supreme Court, it cannot be said too often, exists to protect the rights of the individual American against anyone, anybody, that in his, her, view appears to deny or challenge those rights, whether the challenger is a person, a city, a state, a mayor, a corporation or – remembering the fateful order of the court – forcing Mr Nixon to publish a taped conversation that damned him, a president. Hence the docket reads, “Roe v Wade, Brown v Board of Education, USA v Alger Hiss".

Justices of the Supreme Court seem to live longer than most people – as long as orchestra conductors, though no profession waves its arms around or expands its lung capacity less than judges.

I wish some geriatric foundation would go to work to explain the longevity of judges, justices of the Supreme Court especially. I think of Mr Justice Holmes who for his last 50 years took little exercise, read ravenously, thought carefully, wrote exactly, sat on the bench decade after decade and stated his position with sometimes brutal clarity.

At the age of 90 he found that the words he wrote on the page were growing tinier, and more and more illegible. So he wrote a letter to the president, "the condition of my health makes it a duty to break off the affectionate relations of many years and the absorbing interests that have filled my life. The time has come and I bow to the inevitable".

Mr Justice Brennan did not last quite so long. Only four years ago, at the age of 80, he said he was spry and busy and had no thought of resigning. But lately his health has been failing and it was his doctor who said, “Go now”.

Usually a president takes his time in appointing a new man, or woman. There was one woman on the list Mr Bush drew up. But Mr Bush moved within three days and named a judge who had not been on any expert’s list.

The truth is he’d been on the president’s short list in 1986 when Judge Scalia was chosen and again in 1987 when Mr Reagan’s last appointee, Judge Anthony Kennedy, was preferred.

The new man is David Souter, 50 years of age, a federal appeals court judge from the New England state of New Hampshire. Within 24 hours we know much about his personal life – he’s a bachelor, lives alone in a very modest house in the village, fond of music, Handel in particular, takes the same little old woman to church every Sunday, weighs 130 pounds, 120 of them a friend says, all brain, is unassuming.

Has friends, obviously, among lawyers, doctors, but also among the local farmers, shop keepers. The only outright remark made affectionately however, came from the neighbourhood petrol station man,"Boy, is he thrifty, he’s cheap, he’s run up the state record for frugality".

But what Congress wants to know and in September the senate judiciary committee will find out, is what is his judicial philosophy, and where he stands on the great current issues, one more than most – abortion.

Probably no Americans are more impatient to hear his views on that topic than the two armies which formed their battle lines years ago and are still tilting and charging at each other as if without an early settlement the nation would again come to the verge of a civil war. The people in favour of abortion under almost all circumstances the so called Pro-Choice people, and the people who regard all abortion as murder, the so-called Pro Lifers.

Mr Bush anticipated this inevitable clash and said at once that he had applied no litmus test in choosing his man, he had chosen one who will be a fair arbiter of the law across the range of issues the court faces.

The mere fact of a conservative president choosing a conservative lawyer plunged liberals into premature grief.

Two things we should not forget which stand in the way of any certainty about how Judge Souter will perform on the court. First, the Constitution lets the president name a justice but allows him to sit only with the advice and consent of the Senate.

Until the September hearings are over and the Senate has voted, Mr Bush stays at first base. But secondly, much more important, are the conditions of a justice’s appointment which establishes independence at the start. He’s there for life, he’s not paid by results, he cannot – short of gross or criminal behaviour – be removed, he’s above the political battle.

As old Justice Warren said, “You see things differently on the court.” He certainly was a prime example. President Eisenhower’s confident choice of a Republican country club conservative, and district attorney, an absolutely certain non-rocker of the boat.

Well, he became, through a raft of liberal interpretations, the liberal’s God. Said Eisenhower a few years later, the worst damn fool mistake I ever made.

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