Supreme Court Nominee A justice worthy of all

Posted: July 10, 2005

The Senate Judiciary Committee is preparing to conduct one of the most important job interviews in decades. The senators shouldn't beat around the bush with the applicant.

Even before President Bush nominates a candidate for the Supreme Court, partisans on both sides are trying to manipulate the ground rules.

Some who want the court to outlaw abortion, for example, argue that it's inappropriate for lawmakers to press a nominee on his/her views about the subject. By trying to limit this line of inquiry, they hope to enable a conservative justice who's hostile to Roe v. Wade to be confirmed with a minimum of probing questions.

Likewise, some liberals seem to be laying the groundwork for a potential filibuster by arguing that a nominee ought to commit to positions on issues yet to be decided by the court - or else. That's not how this process should work.

Everybody knows that this nomination fight is about judicial philosophy. Conservatives of various stripes are dying to get a justice who shares their particular views. Liberals know the next justice will not be their dream jurist, but they would settle for a fair-minded pragmatist like retiring Sandra Day O'Connor.

That's as it should be. What's absurd is the pretense that probing questions about judicial philosophy should be declared somehow out of bounds.

Chairman Arlen Specter (R., Pa.) and his colleagues on the panel ought to be able to ask the eventual nominee any question they like, short of how he/she would rule on specific cases wending their way through the system.

This candidate will replace the woman who has been the pivotal justice on the highest court in the land, and who has done great service in that role. The nation deserves a full airing of the nominee's record and philosophy.

If the nominee has published essays or delivered rulings on issues such as reproductive rights, affirmative action, torture, the death penalty, search-and-seizure or other constitutional issues, it would be nice to hear him or her explain the thinking behind those words.

It would be nice to hear whether the nominee has some overarching judicial theory by which he/she decides cases, or has a practical, case-by-case turn of mind. It would be nice to hear whether this nominee is open to deliberation and compromise, or is a combative, fixed-star thinker, such as Justice Antonin Scalia.

Check that. It would not be merely nice to hear such discussion. It is imperative. This lifetime appointee could well be interpreting the laws by which we live in decades to come.

As Sen. Orrin Hatch (R., Utah) said last week, "Any member of the committee can ask whatever they want, no matter how stupid."

Hatch also maintains that a nominee need not answer the stupid questions. With luck, the senators and the nominee can agree on the definition of "stupid" when they hear it.

Both parties have tried to set lenient or tough standards for examining nominees, depending on whose ox was about to be gored. Democrats did some of the same maneuvering in 1993 to try to protect Clinton nominee Ruth Bader Ginsburg from probing questions by senators who didn't like her expansive liberalism.

It might be useful to turn to the standard of questioning, as several bloggers have noted, that Specter himself set in his 2000 book, Passion for Truth:

"The Senate should resist, if not refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues," Specter wrote. "In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate's philosophy, but should be able to judge on the basis of the candidate's expressed views."

It's good advice, but even more salient than when he wrote it, because in 2000 there was no "right-wing" or "left-wing" Supreme Court nominee to scrutinize.

That sounds about right, Mr. Chairman. Hold your committee colleagues to that standard.

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