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Justice Potter Stewart sat squarely in the lap of the Constitution

JUDICIAL independence. Fair-mindedness. Adherence to the rule of law. Compassion for society. These are among the qualities one generally looks for in a judge. And in an era when the judiciary is under sharp attack in some quarters for misplaying its role, the late Potter Stewart -- who served the US Supreme Court as an associate justice for 23 years, retiring in 1981 -- shaped up as an ideal jurist. Justice Stewart made his mark as a pragmatic lawyer and judge whose passion for defending the Constitution was attended by concern for the individual and a reliance on intuitive common sense.

Mr. Stewart was a champion of neither the political left nor right. Civil libertarians cheered his adherence to First Amendment principles of free speech and freedom of the press. But conservatives were rallied by his acceptance of prayer in school and his tendency to support prosecutors and police in many criminal-justice cases.

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Stewart's vote could not be counted on in terms of ideology. As a justice, he answered to only one ``boss'': the US Constitution.

In an interview with this columnist just after his retirement, Stewart said that the ``Constitution is viable today because of the genius of the Supreme Court.'' And he explained that it had been ``kept up to date by justices who realized that they were interpreting a Constitution -- not a traffic code.''

Potter Stewart was very concerned that ``groups driven by ideology'' wanted to limit the power of the courts and resolve issues like budget, busing, and abortion by legislative action or constitutional amendment.

Four years ago, upon his retirement, he staunchly defended the Supreme Court and the ``bench'' in general from ``right wing'' attacks that characterized many US jurists as too liberal, too permissive, and often excessive in their interpretations of the Constitution.

Justice Stewart stressed that a judge's job is to be ``objective, conscientious, diligent,'' and to remember that everyone is ``equal before the law.''

``I think it is the first duty of the justice to remove his own moral, philosophical, political, and religious beliefs and not to think of himself as some great philosopher king and apply his own ideology,'' he explained.

Admittedly, Stewart had strong moral and religious precepts. But on the bench, he voted on cases, not philosophy, on issues ranging from the death penalty to abortion.

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A Republican and an Eisenhower appointee, Stewart defended the concept of free enterprise, but he came down hard on big business when he felt it abused its power.

Justice Stewart personally abhorred pornography. But he had difficulty defining it in legal terms. In fact, he felt that courts should avoid obscenity litigation except in blatant cases or in instances of pandering to children.

Although he insisted that judges must always answer to the Constitution (during our interview, he waved a crinkled copy in front of me and called it his ``boss''), the associate justice counseled against ``overdependence'' on its letter. And he warned against constitutionalizing every grievance that ``might or might not appear tomorrow.''

Stewart was called a ``swing vote,'' a ``moderate,'' a ``neutral'' -- a justice who narrowly voted on the merits of a case but shunned broad social and economic interpretations. Interestingly, these assessments came from some scholars as words of praise, from others as criticism.

President Reagan recently called him a ``patriot and a good lawyer.'' Justice Stewart was immensely proud of both roles.

Vice-President George Bush referred to him as a scholar who ``interpreted the Constitution without succumbing to legislate from the bench.''

In the current debate over what some feel is a ``politicizing'' of judicial appointments, liberal constitutional scholar Laurence H. Tribe is calling upon the Senate to scrutinize presidential nominees to the federal bench more carefully in terms of their understanding and interpretation of the Constitution.

More-conservative judicial assessors, including Michael W. McConnell of the University of Chicago, warn against confirmation of judges who abandon the ``original intent'' of the Founding Fathers and bring their own social and political philosophies to the courts.

Perhaps the words and works of a Potter Stewart would be a good yardstick for both sides. A Thursday column

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