The Constitution was 150 years old before a Supreme Court nominee even appeared at his confirmation hearings, and then the senators' principal interest was whether Felix Frankfurter was a communist. Confirmation questioning has changed considerably since then, indeed since the last time a Democratic president made a nomination (1967, Thurgood Marshall).
This is Year Six A.B. (After Bork) and Senate questioning of President Clinton's nominee should be particularly spirited if (this is written Thursday morning) the nominee is Interior Secretary Bruce Babbitt, whose primary professional experiences have been in political offices, including eight years as Arizona's governor.
Some fine justices, such as Hugo Black, once a senator from Alabama, have come from elective offices. And the problem with Babbitt is not that he has a negligible record from practicing law and no judicial experience. Actually, it would be nice to have a nominee who is not a lawyer but who has reflected long and deeply about America's premises, someone like Harvey Mansfield or Michael Sandel, Harvard political philosophers.
Rather, the problem with Babbitt is that he has no record of such reflection, and so probably would be, as politicians tend to be, merely result-oriented. The last thing constitutional law needs now is another dose of kindly meant but anti-constitutional decisions promoting particular social results through judicial fiats.
That was the style of the last ex-governor nominated to the court, Earl Warren. Warren's court frequently tried (in the words of Justice Robert Jackson concerning the 1954 school desegregation decision) to "make a judicial decision out of a political conclusion."
During oral arguments Warren would ask concerning the law or practice at issue, "But is it right?" That always is a good question for a politician to ask, but it rarely is the dispositive question in a controversy before the court. For example, a law can be foolish, even unjust, yet constitutional.
Senators should ask Clinton's nominee questions testing the nominee's acceptance of the restraints inherent in the judicial role, properly understood. Here are a few:
The president's announced litmus test for choosing you is support for the "privacy right." The Constitution's Framers neglected to mention that right but the court found it in 1965, nestled in "penumbras, formed by emanations" from the Bill of Rights. In 1973 the court discovered that this penumbra emanated a right, indeed a "fundamental right," to abortion. In what circumstances do you think the court legitimately propounds rights not mentioned in the Constitution?
The property right is mentioned emphatically in the Fifth ("No person shall . . . be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation") and Fourteenth amendments. Indeed, property may be the real privacy right because it provides a sphere of personal sovereignty, a zone of independence into which government should be able to intrude only with difficulty, and only so far.
Do you endorse the court's distinction between "fundamental" rights, such as speech and privacy, and supposedly lesser rights, such as the right to own and use property and pursue business interests? Can this distinction, found nowhere in the Constitution's text, be based on anything other than the justices' political preferences? Given the Fifth Amendment's "takings" clause, should not government be required to compensate property owners when its actions directly and substantially diminish the value of property?
In 1981 the governor of Arizona, one Bruce Babbitt, wrote: "It is long past time for Congress to dust off the Federalist Papers, reread the Constitution, and occasionally ask with the shades of Jefferson and Madison, "Is this truly a national concern?'
" Granted, the doctrine of enumerated powers died of neglect long ago. But do you agree with the court's 1985 ruling that there is no "sacred province of state autonomy," no independent, judicially enforceable sovereignty, so Congress, not the Constitution, defines whatever protection the states enjoy against the federal government?
The court has held that judicial power may be especially legitimate when exercised on behalf of "discrete and insular minorities." They are supposedly unable to rely on democratic processes to protect their interests or realize their goals. Given that the Constitution nowhere authorizes such special status for any groups, does judicial solicitousness toward such minorities express anything other than the justices' political agendas and social sympathies? If not, is it compatible with the rule of law?
Does the Voting Rights Act mandate the enhancement of the political power of certain government-preferred minorities by such practices as racial gerrymandering to concentrate minorities into majorities in certain districts? How do you square the "equal protection" guarantee with the practice of giving preferential treatment to certain racial or ethnic groups doing business with the government?
Promises about Supreme Court nominations are now part of presidential campaigning; justices linger longer than the presidents who nominate them; and the political class is pleased to have the judiciary make many essentially political decisions. So let the aggressive questioning of Clinton's nominee not end until a judicial temperament has been demonstrated or disproved.
Washington Post Writers Group