Behind the Headlines; Jews Are Considered for High Court, but Should There Be a ‘jewish Seat’?

As President Clinton neared a decision this week for a nominee to replace retiring Supreme Court Justice Byron White, two Jewish jurists were among the names reportedly at the top of his list.

The New York Times reported last week that Clinton had “made no secret of his desire” to appoint a Jew to the highest court in the land.

If he did so, it would resume a half-century tradition of there being a “Jewish seat” on the Supreme Court, which has been interrupted now for nearly 25 years; that tradition began with the appointment of Louis Brandeis in 1916 and ended in 1969 when Abe Fortas resigned.

Other Jewish justices to serve on the court during that period were Benjamin Cardozo, Felix Frankfurter and Arthur Goldberg.

Jewish communal leaders say they would welcome the presence of a new Jewish justice on the court but are more interested in the president nominating a justice whose positions on various constitutional issues are in line with those of American Jewry.

Unlike some other minority and women’s groups, who have been pushing their own candidates to fill the court vacancy, Jewish organizations have taken a low profile.

Among those Clinton reportedly was considering for the seat were Judge Jon Newman of Hartford, Conn., who serves on the 2nd U.S. Circuit Court of Appeals, and Chief Judge Stephen Breyer of the 1st U.S. Circuit Court of Appeals in Boston. Both are Jewish.

Many in the organized Jewish community say that the future justice’s religion is less important than his or her ideas and opinions.

“Jewish justices in the past served with such distinction and were a source of great pride to American Jews, and if a new Jewish justice served with distinction,” that person would also be a source of pride, said Mark Pelavin, Washington representative for the American Jewish Congress.

“On the other hand, what is most important to us is their intellect and their views on the things that are important to us,” he added.

‘CRITERIA SHOULD BE MERIT’

“Of course, we would welcome another Jewish Justice,” said Samuel Rabinove, legal director of the American Jewish Committee, “but our view is that we do not seek religious or ethnic seats per se on the court.”

Steven Freeman, director of the Anti-Defamation League’s legal affairs department, agreed.

“The criteria should be merit, the best-qualified person for the job. We would not recommend that the person be chosen by ethnicity,” Freeman said. “By the same token, we would be pleased if the best-qualified person happened to be Jewish.”

And some scholars and legal experts held similar positions to these Jewish organizational professionals.

“I’m appalled by the notion of a Jewish seat on the Supreme Court,” said Harvard Law School Professor Alan Dershowitz. The idea “should be anathema to Jews.”

Dershowitz said that Supreme Court seats should be based on merit, not on a “quota that suggests they should be allocated in a representative manner.”

Jews, he pointed out, do not even represent 1/9 of the population. But Jews have a long tradition of distinguished legal service, and therefore, if the seats were merit-based, he said, it might make sense for there to be more than one Jewish justice on the high court.

He also pointed out that many of the Jews under recent consideration for the court have not been active members of the Jewish community.

“What do we as a Jewish community gain from having a person who happens to be Jewish on the court? It’s an anachronistic notion.”

Dershowitz and other experts said that at the beginning of the century, when Brandeis was nominated to the court, it was important to have a Jewish justice, but that times have changed.

“The notion of a Jewish seat was particularly important at a time when Jews suffered all sorts of discrimination,” said Robert Katzmann, a professor of government and law at Georgetown University who specializes in the judiciary.

“Having someone Jewish on the court was a reminder of the importance of eradicating discrimination. Nowadays, there is not the same need as there was then,” he said.

‘SYMBOL OF HOPE TO JEWISH YOUTH’

Others have argued that having a Jew on the court is still important for American Jews.

Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals in Los Angeles wrote in a 1989 article in the Cardozo Law Review that “the only place where Jews have been represented at the highest level of our society, and have thus been able to serve as a symbol of hope to Jewish youth, has been the Supreme Court.”

“It is wrong that the only branch of government in which Jews have been able to reach the top has now been closed to them at that level for an entire generation,” he wrote.

Some court-watchers feel that either Breyer or Newman would be a positive addition to the bench.

“Both men come out of the progressive traditions of the Democratic Party and have had wide experience, not just in the judiciary but in the world of Washington,” said Katzmann.

He noted that Breyer had served as the chief counsel to the Senate Judiciary Committee and that Newman had worked for former Sen. Abraham Ribicoff (D-N.Y.), both in his Senate office and at the Department of Health, Education and Welfare.

Breyer and Newman are just two of many jurists whose names have been floated in recent weeks. Often, White House officials use the press to send out “trial balloons” and see whether nominees are shot down when exposed to scrutiny.

Another possibility, Chief Judge Gilbert Merritt of the 6th Circuit Court of Appeals in Nashville, was criticized this week by the Simon Wiesenthal Center for his involvement in the case of John Demjanjuk.

Rabbi Marvin Hier, who is dean of the Los Angeles-based center, said in a statement that he was “very concerned” that Judge Merritt, “without any apparent justification on the record,” reopened the already completed extradition case of convicted Nazi war criminal John Demjanjuk “and, as a result, called into question the judgment of the U.S. judges who had previously ruled on the case.”