THE JOKER OF JUDICAL EXPERIENCE

...There is yet another and related handicap that confronts any man who is promoted from a lesser court to the highest bench...

...This century's greatest Chief Justice to date, Hughes, had indeed been a judge before...

...Court of Appeals, or Warrett on the Supreme Court of California...

...In the first place, all state judges including those on the highest state courts spend most of their time dealing with matters of private, not public, law—with cases in contracts and torts and property and corporations and the rest...

...Is it then mere coincidence that so many great Justices of the past—and of the present—came to the highest bench as judicial virgins...

...But both these facts became negligible in political retrospect, thanks to the Eisenhower landslide...

...It has to do with the prime qualification which the President demanded in his latest Supreme Court nominee and which he will presumably demand in any further nominees during the four years to come—the so-called qualification of "prior judicial experience...

...Samuel Miller, ablest of the post-Civil War Justices, had none...

...Beginning with the Chief Justices: Marshall, universally dubbed "the great C.J.," came to the Court from the Cabinet after a completely nonjudicial political career...

...For we have it from official sources that the list that was "combed" for the "best" man was made up ex-chzsively of sub-Supreme Court federal judge...

...Or is there a possible, though by no means inevitable, causal relationship between lack of prior judicial experience and Supreme Court greatness...

...And it is because lower court judges tend naturally over the years to narrow their sights to the little legal points they have to deal with so constantly that—despite such exceptions as Holmes and Cardozo—they seldom make great Supreme Court Justices...

...As for Chief Justice Warren, who seems likely to outrank even Hughes by the time his term is done—and whose appointment the President explains today on the ground that only Chief Justices need have no prior judicial experience—his entire pre-Court career was unjudgingly political...

...Supreme Court, means...

...he will have made decisions and written opinions which still stand in the law-books under his name...

...Rather, it is a slight and inconsequential and almost meaningless record, so far as predicting his future on the Supreme Court is concerned...

...No, the likelihood that Brennan -will never become an outstanding Justice stems from the fact that he ;was named to the Court for the "wrong reason...

...Would Hughes have accepted a seat on a U.S...

...How many top-drawer statesmen—now, in the past, or in the future—would be willing to accept in middle-age, the time when most such appointments are made, the comparative retirement from active and policy-making government work that a judgeship, short of the U.S...

...The line of argument is seductive...

...The answer is manifold...

...neither had done a day's worth of judging before taking on the highest judicial office in the land...

...Indeed it hangs even more heavily over the future of the Supreme Court in the light of the election...

...The big choices on these, as on other major government issues of our time, still lie ahead of him...

...It is sufficiently seductive to have led to bills in the last Congress which would have required that any new Supreme Court Justice have in his record a stated minimum of past judicial experience (the Constitution does not even require that a Justice be a lawyer)—and similar proposals are sure to be made in the next Congress...

...This second fact, of course, assured Brennan's confirmation as a Justice no matter which party might control the new Senate...

...To suppose that a man who sits for years on a lower court is thereby adequately or even partially qualified to serve on the Supreme Court is to suppose that a high-school science teacher, per se, will probably make a good professor for Caltech or M.I.T...

...The first John Harlan, grandfather of the present Justice and pre-Holmesian giant of liberal dissent, had none...

...finay not some day become a great Supreme Court Justice...

...Except for Black's brief service as a police-court judge in Alabama—for which.he has been more often twitted than touted—not one of the four had had any prior judicial experience...

...Hence, no matter how narrow and legalistic those old opinions may perforce have been, his temptation will be great to try to win for the slant they represent the ultimate approval of Supreme Court acceptances Thus, Justice Pitney carried to the Court a near compulsion to get from his new brethren their national blessing for the anti-labor union views that had long marked his rec ord as a state judge in New Jersey Jiven Holmes stuck with pride-of authorship to a couple of doubtful doctrines he had concocted when he sat on the Massachusetts bench...

...And neither of Holmes' own famous partners in protest, Brandeis and Stone, had ever donned a judge's robe until they reached the Supreme Court...

...It is sufficiently seductive to have won over President Eisenhower...

...And how many masters in the art of government are likely to be found on state courts or lower federal courts, stocked though they doubtless are with quite competent judges...

...But James Wilson, titan of George Washington's first Supreme Court, had none...

...And if Eisenhower continues to misconceive the Court's unique and special function, continues to equate its job with the jobs done by all the lower courts, continues to insist that new Justices must have had prior judicial experience, he cannot but head the Court toward ever-increasing medi-ocrity with each additional appointment he makes...

...As I have put it elsewhere, one reason why past judicial experience may not be an asset in a Justice is the degree to which that Justice will likely be anxious to justify his own judicial past...

...Nor is it the fact that Brennan is a technical Democrat of such conservative stripe that a man who worked closely with Brennan in Washington during the war, a man over whose radio we both happened to hear of Brennan's nomination, immediately described him to me as "a charming Catholic Republican...

...Imagine what the history of the Supreme Court would be if Congressional legislation or Presidential predilection had barred from membership, because of lack of prior judicial experience, such men as Marshall, Taney, Hughes, Wilson, Miller, the first Harlan, Brandeis, and Stone...

...I do not think it mere coincidence that such all-time greats as Marshall and Taney and Hughes and Brandeis and others came fresh to the Court from active non-judicial political or public-service careers...

...so did his successor, Taney...

...Most lawyers favor the idea as do, naturally, most judges...

...Though "chosen for his lawmanship—plus his being a conservative Catholic Demo-crat—he may have the seed of states-manship in him and that seed may blossom on the Court...

...Perhaps its most telling aspect lies in a brief recollection of those Justices who, throughout the Court's history, have been generally regarded as great...

...The kind of content that is needed in the work of a great, or even a pretty good, Supreme Court Justice is not the nicety of legal needlework, the perfectionism in petty points of law, that characterizes many an able lower court judge...

...And if the Supreme Court today were lacking the services of Black, Douglas, and Frankfurter, along with Warren—easily its four best minds—the Court would be in a sorry state indeed...

...By contrast, Supreme Court Justices spend most of their judging time and energy and wisdom (or stupidity) on precisely those major issues of government policy, translated into law, that no other judges in the land deal with, save occasionally and inconclusively...

...FRED RODELL, professor of law at Yale, has written widely of the federal |u-diciary...

...The Joker of Judicial Experience by FRED RODELL THE MOST salient and sinister single fact about President Eisenhower's third Supreme Court appointment is not the fact that William J. Brennan is a Roman Catholic—a fact with political implications and purposes so plain that none could miss its intended pre-election impact in northeastern United States...

...plus the judges of the highest courts of the 48 states...

...Isn't a man who has worn judicial robes in the past almost automatically better qualified, by training, by experience, by temperament, to serve well on our highest court than a man picked straight from political position or from the ivory-towerish out-of-touch life of a law professor or from the inevitably partisan active practice of law...

...His books include "Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955," "Woe Unto You, Lawyers," and "Fifty-five Men: The Story of the Constitution...

...The third fact, the big fact, did not become negli-gible...

...But the chances are strong against it This is not because his record on the top court of New Jersey is a bad record, for it isn't...

...The making of important government decisions in the field of federal constitutional law is never the definite job and is rarely even the tentative job of state judges or of sub-Supreme Court federal judges...

...Bluntly, is a man who has never sat on a lower court more likely to become a great Justice than one who has...

...President Eisenhower would take nobody but a sitting judge to honor with a Justiceship...

...Supreme Court to which he was appointed, the first time, without an iota of judging experience...

...Taking Mr...

...If you would not choose as your doctor a man who had never done any doctoring, if you would not choose as an engineer a man who had done no engineering, why ever choose as one of our highest judges a man who has done no judging...

...In his old post, he will inevitably have dabbled in a few general fields of law whose problems will come, though on a different wave-length, before the Supreme Court...

...not statesmanship...

...The third fact has nothing directly to do with politics...

...How many of them came to the Court with prior judicial experience...

...Nor am I contending here that judicial experience should automatically disqualify a man from a Supreme Court seat...

...How many had done any prior judging...

...And why, it will fast be asked, not...

...Quite simply, men with a talent for government leadership, for the making of political decisions_and that, shocking as it may sound to some, is what the Supreme Courf significant work amounts to—catvfafe found in far greater profusion, DemoStats and Republicans, conservatives and liberals, outside the nation's judiciary than in it...

...segregation), a Justice should^ be, above all, a statesman, a wise master in the art of government...

...And again, why not...

...My own belief—in straight contradiction of President Eisenhower's recent conviction and of strong Congressional sentiment—is Yes...

...To say all this is not to say that William Brennan (remember him...

...For, once more, it is statesmanship, not narrow legal craftsmanship, that the business of being a Justice most demands...

...If he is also a legal or judicial craftsman, so much the better...

...but craftsmanship alone, because of its head-down-to-details nature, may be rather a vice than a virtue...

...And even the many public-law cases which lower federal judges do handle involve for the most part the needlework of "interpretation of statutes"—according to rules laid down by Supreme Court Justices...

...Coming closer up to date, the four men regularly rated as the ablest of Franklin D. Roosevelt's appointees are Justices Black, Douglas, Frankfurter, and the late Justice Jackson...

...On civil liberties, the only field of law of any import that - will carry over from his old judicial job to his new one, Brennan has been now here, now there, and his cases have been few...

...Holmes and Cardozo, and William Johnson of Marshall's Court, come immediately to mind—as the exceptions who had...

...And if Congress, by some evil chance, should go so far as to write the prior-judicial-experience requirement into law, every Senator and Congressman who votes for such a bill will be voting that never again Stall a Marshall, a Taney, a Hughes, a Brandeis, a Stone, or a Warren be Permitted to serve on the Supreme Cour,t of the United States...

...but the Court he had sat on was the U.S...

...it has happened occasionally before...

...The same is true, though in lesser degree, of federal judges below the Supreme Court level...

...Judging may be judging just as teaching is teaching but, especially on the highest levels, it is the content, not the training in manner or technique, that counts...

...The judiciary is molded with men versed in lawman-Ship...

...It is the breadth of vision, the statesmanship, the will and the genius to fashion law instead of merely follow it—as did Marshall and Hughes and Brandeis, and as does Chief Justice Warren today...

...Would Stevenson or Acheson, Brown-ell or Dewey, Senator Knowland or Governor Meyner, take a judge's job below the high court today...

...And all too rarety are lawmanship and statesman-ship combined in the same man...

...Eisenhower's conveniently self-justifying but somewhat unconvincing distinction at its face (and he might have a hard time justifying his choice of John M. Harlan, who sat on a lower federal court for only a few months before being elevated to a Justiceship), how about the great Associate Justices of the past...

...The point can be made more pointed...

...My reasons are several and perhaps somewhat subtle...

...Given the power that is wielded by the Supreme Court today (and it seems almost superfluous to mention the blocking, then the unblocking, of the New Deal or the recent rulings on national-security-vi.-individual-lib-erties or the ordering of racial de...