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- NATION, Page 36THE POLITICAL INTERESTAsking the Wrong Questions
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- By Michael Kramer
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- Three weeks into the process and David Souter no longer
- merits 30 seconds on the evening news. Having uncovered next
- to nothing that seems capable of hampering Souter's Supreme
- Court nomination, the media have turned their attention
- elsewhere. The White House is ecstatic. George Bush's aides are
- predicting a smooth confirmation.
-
- Their optimism is misplaced, but even if they are right, a
- political time bomb is ticking. If a Justice Souter votes to
- weaken or overturn Roe v. Wade before Bush faces re-election
- in 1992, the President will be castigated for having smuggled
- an abortion foe onto the court without a fair fight. Few will
- believe that Bush didn't know all along that Souter would
- affirm the Republican Party's call to gut the landmark
- abortion-rights decision.
-
- For politicians, abortion is a character issue. Those
- candidates who state their views unblinkingly are usually
- conceded the courage of their convictions and rise or fall for
- other reasons. Those who waffle or engage in subterfuge usually
- lose. To avoid a backlash later on, the President should
- welcome a thorough Senate grilling of Souter's abortion
- position.
-
- Whatever Bush's final strategy, Souter himself appears
- willing to join the battle straight-up. He apparently realizes
- that regardless of where a nominee stands on an issue, a
- candidate for the high court owes the nation an account of why
- he stands there. Some people who are close to Souter say he has
- already decided to discuss the right to privacy on which Roe
- rests. Many conservatives (and some liberals, including the
- late Justice Hugo Black) insist privacy is an invented liberty
- without constitutional foundation. Let Souter second Black, if
- that be his position, and then echo those liberal scholars like
- Raoul Berger who say Roe was wrongly decided (although Berger,
- at least, applauds the opinion's result). Then, if Souter is
- conthe electorate will not feel cheated.
-
- Whether candor can win the day for Souter is another matter.
- Some Senators believe he could deny a constitutional right to
- privacy and still prevail, provided his reported respect for
- precedent convinces the Senate he might leave Roe alone anyway.
- If that is indeed the message Souter wishes to convey, he could
- do worse than borrow from Robert Bork. "Many court results
- decided incorrectly have been left in place because tearing
- them up would create chaos," says Bork.
-
- Would such a stance wash? Perhaps, but "the stakes are much
- higher this time," says Senator Arlen Specter, a Pennsylvania
- Republican whose opposition doomed Bork's 1987 court
- nomination. "Bork's vote to overturn Roe would not have made
- the difference. Souter's would."
-
- Clearly, the current calm is illusory. Souter's confirmation
- is no done deal. In one way or another, abortion will be the
- litmus test that determines Souter's fate. In the end, he could
- be rejected simply because he believes that legislators should
- make the law, that the right to abortion is a matter best left
- for the states to decide.
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- The trouble with all this is that today's divisive
- ideological issues are not always tomorrow's. Ten years from
- now, with Bush long gone, who knows what the hot buttons will
- be? What the Senate should explore is the creativity and
- intellectual distinction of a nominee, not how he would vote
- on a specific case next week. Unfortunately, those are the kind
- of questions that may never be asked.
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