Jack C. Doppelt
Sept. 20, 1990
What should we expect to find out about Judge David Souter before the Senate votes on whether he should be confirmed as the next U.S. Supreme Court justice? Not much, if we are to listen to the many commentators who suggest that we be satisfied with a limited inquiry into Judge Souter's intellectual qualifications and whether he intends to interpret the Constitution strictly or act as a judicial activist, legislating from the bench.
One commentator after another has bemoaned the politicization of the Senate confirmation process that raked Judge Robert Bork over the coals, as if the lesson to be learned from the Bork hearings is that we should accept a President's nominee blindly. To demand more, the argument goes, would be to expose a nominee to the single-minded agendas of the far right or left at the expense of judicial integrity and impartiality toward the cases and issues the Court is likely to be faced with in the future.
That need not be the case and the public should demand to know more about Judge Souter's ideological leanings and judicial philosophy.
When William Brennan appeared before the Senate Judiciary Committee as President Eisenhower's nominee in February of 1957, there were political agendas as there are today. Senator Joseph McCarthy, who was not even a member of the committee, was granted the floor to ask Brennan a series of questions relating to Brennan's views on communism. Brennan had made a speech a few years earlier that characterized the nation as becoming "ashamed
of our toleration of the barbarism" which marked the congressional hearings into communist activities. In his waning days in the Senate, McCarthy hoped to depict Brennan as soft on communism.
Brennan ducked a number of McCarthy's questions, such as whether he believed communism was merely a political party or a conspiracy to overthrow the government. Brennan reminded the committee, as nominees have done before and since, that it would be inappropriate for a nominee to answer questions about cases or issues pending before the Court. The Court had on its docket cases in which the definition of communism was integral to the issue of membership in the Communist Party.
Before he was done, Brennan had conveyed enough that McCarthy had a statement read into the record that Brennan "harbors an underlying hostility to congressional attempts to investigate and expose the Communist conspiracy." Brennan would be confirmed without a roll call vote.
Fourteen years later when William Rehnquist was before the Judiciary Committee as President Nixon's nominee, the cat and mouse game between probing committee and savvy nominee had merely shifted ideological focus. Liberal Senators Edward Kennedy, Birch Bayh and Philip Hart inquired into Rehnquist's positions on domestic surveillance, segregation and limitations on the President's war powers. They formulated questions to prod the nominee into answering without having to address cases or fact situations that might be before the Court.
They quoted from prior cases, including the Pentagon Papers case decided earlier that year, and got Rehnquist to answer whether he agreed or disagreed with the Court's language. Rehnquist went so far as to say he had a constitutional problem with some of the anti-war amendments pending before Congress the year before. He stopped short of answering how he felt about particular constitutional amendments.
Rehnquist discussed his personal views on segregation. He defended views he had expressed four years earlier that in the context of busing to achieve integration, we should be "no more dedicated to an integrated society than we are to a segregated society," but should be dedicated to a society that accords freedom of choice in such matters. While declining to comment on specific cases of de jure segregation pending before the Court, his answers would prove to be quite telling about the inclinations he would take into the Court's future cases and issues.
As we approach Judge Souter's confirmation hearing, we as a nation know less about him than we did about either Brennan or Rehnquist. We are not likely to learn more through news conferences or briefings so we are dependent on the Senate's judiciary members to elicit information from a nominee whose views need to be articulated before they come to rest as the law of the land.
The Senators and their staffs ought to approach their task with a reinforced commitment to get Judge Souter's views on the
record. Whether the issues are abortion, affirmative action, separation of church and state, or the exclusionary rule, we should not accept a pat response that any answer would be inappropriate because the question touches on issues that might be before the Court.
If Judge Souter is not forthcoming in his answers, we should not assume ethics and judicial propriety dictate such forbearance. Earlier this month, Justice John Paul Stevens spoke out on the flag burning case, saying the Court should not have heard the case, and on death penalty cases, saying that states should provide funding for both the prosecution and the defense. If ethics and judicial propriety do not prohibit a sitting justice from commenting on issues that the Court may have to address again in the future, then there is no reason we should not seek such candor from a nominee.
Many nominees, before their confirmations, have taken positions in writing and speeches on cases and issues that have been decided by the Court. Questions that ask Judge Souter for his opinions on recent Court decisions should be fair game. Those opinions may not accurately predict how Judge Souter will decide cases once on the Court.
That is as it should be. We should not know how he will rule on future cases. We should know, through the "penumbras and emanations" of his answers, what views, attitudes and judicial philosophy he will take into those cases.
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