TIME: Almanac 1993/TIME Almanac 1993.iso/time/092391/0923102.000

Text File | 1992-08-28 | 6.0 KB | 126 lines

                                                                                NATION, Page 20

SUPREME COURT

Judging the Judge


For all their posturing, Senate Judiciary Committee members have
no fixed standards in reviewing presidential nominees

By PRISCILLA PAINTON -- Reportred by Michael Duffy and Hays Gorey/
Washington and Andrea Sachs/New York


    For one moment last week, it seemed possible that the
Senators might unravel the tight bundle of polite obfuscation
that is Clarence Thomas, Supreme Court nominee. Delaware's
Joseph Biden, who chairs the Senate Judiciary Committee, jabbed
him with questions and snappy comebacks on Thursday morning, and
Thomas was briefly thrown off his monotone. But his Republican
handlers called for a break, and both Thomas and his Democratic
inquisitors returned to a harmless game of parry and dodge.

    After 22 hours of testimony, the 14 members of the Senate
Judiciary Committee extracted little from Thomas. He told them
the Constitution embraced a right to privacy but refused to
offer any thoughts on the Supreme Court's Roe v. Wade abortion
decision. He did not repudiate his writings favoring the use of
"natural law" but said they were the musings of a part-time
political theorist and would have no bearing on his
interpretation of the Constitution. The Democrats had to admit
they were stymied. "Who this man really is, I don't really
know," said Herbert Kohl of Wisconsin. The Republicans happily
bragged about their strategy. "It's O.K. not to give the answer
as long as it's not because you don't know the answer," said a
senior Administration official.

    If the hearings revealed little about Thomas, they said
much about the limits of a body that has become one of the
liberals' last redoubts on Capitol Hill, the only place where
Democrats, locked out of the White House for the past 10 years,
can attempt to fend off conservative nominees to the court. Even
when Biden and Massachusetts' Edward Kennedy teamed up four
years ago to defeat Robert Bork, it looked as if the Democrats
could only briefly prevent the Reagan White House from seizing
control of the Supreme Court well into the 21st century. That
proved a Pyrrhic victory.

    After Bork, the White House devised a sort of Ferdinand
the Bull strategy for future nominees: it taught them to win by
refusing to engage. "There isn't much that the Senate can do
about rejecting a nominee or thwarting the President. All a
nominee has to say is, `I have an open mind,' " says Yale
Kamisar of the University of Michigan Law School. With that
strategy, the White House easily slipped through the innocuous
but no less conservative Anthony Kennedy and the enigmatic David
Souter. Says Kamisar: "The lesson is that the Bork hearings were
an aberration."

    So why have Supreme Court hearings at all? For more than
100 years, the committee did without them. And even after they
began in 1925, there were nominees like William O. Douglas in
1939 who waited patiently to be questioned only to be sent
home. But while this public bar exam has become de rigueur, its
rules have changed from nomination to nomination, with
Republicans and Democrats often contradicting themselves on what
questions are appropriate. Some examples of Senators who condemn
"litmus tests" at one hearing but brandish them at the next:



    -- When Lyndon Johnson picked Justice Abe Fortas to be
Chief Justice in 1968, conservatives like South Carolina's Strom
Thurmond demanded that he explain his judicial philosophy; after
10 days on the hot seat, Fortas was ultimately rejected. But
during the Bork hearings, Thurmond argued that his colleagues
should consider only the judge's competence, temperament and
integrity.

    -- Kennedy made the same argument in 1967 when he defended
the Supreme Court appointment of Thurgood Marshall, the
retiring Justice whom Thomas would replace. But as a committee
member 20 years later, the Massachusetts Senator led what was
almost exclusively an ideological campaign against Bork.

    -- When Sandra Day O'Connor was before the committee in
1981, faced with strong opposition from antiabortion activists,
Ohio's Howard Metzenbaum defended her candidacy by arguing that
"there is something basically un-American" about denying a
confirmation on the basis of someone's opinion on a single
issue. But he made clear at the outset of last week's hearings
that he intended to draw from Thomas his position on a woman's
right to choose abortion and is now likely to oppose him for not
affirming that right.

    -- Biden went after Thomas for the latter's "natural law"
approach to interpreting the Constitution, by which judges can
invoke vague notions of eternal justice that pre-exist the
written document. Yet in his opening remarks to Bork four years
ago, Biden celebrated something that sounded like a liberal's
version of "natural law" as the common man's reproach to Bork's
literal reading of the Constitution. "As a child of God," said
Biden, "I believe my rights are not derived from the
Constitution . . . My rights are because I exist."

    All this contention may make some citizens yearn for the
earlier days of this century when the Senate Judiciary Committee
was more deferential to the President's choices. One bipartisan
panel even concluded in 1988 that the confirmation system had
become so "dangerously close to looking like the electoral
process" that candidates should not have to testify.

    But legal scholars say the White House lately has the
hearings it deserves. Ever since the Reagan White House began
screening potential nominees for ideological correctness, the
Senate Judiciary Committee has become the stage where the
nation's divided passions are exposed, especially now that
abortion has assumed such a prominent place on the judicial
agenda. Says Professor Stephen Gillers of the New York
University School of Law: "The process has become more cynical,
and so the Senate has become more activist."