Ask Judge Souter

September 13, 1990|By George F. Will

WASHINGTON. — WASHINGTON BIPARTISAN consensus often is the path of politicaconvenience. Today's consensus is that Judge David Souter should be confirmed as Supreme Court justice without a searching inquiry into his jurisprudential thinking, if any.

Liberals have no stomach for another lynching, which consistency would require them to conduct if Mr. Souter, departing from cliches, sounds like Robert Bork. Conservatives will vote to confirm, come what may, so why risk discovering something awkward. Still, here are some pertinent questions for Judge Souter:

The First Amendment protects freedom of ''speech,'' a distinctive human capacity intimately connected with reasoning, hence with self-government, which is the subject of the Constitution. What, other than civil speech, does the amendment protect? Flag burning? ''Fighting words?'' Pornography? Child pornography? Or do you think the amendment protects ''expression,'' generally? If so, are there exceptions? If so, why?

In Griswold v. Connecticut (1965), Justice William Douglas discovered a ''privacy right'' lurking in ''penumbra, formed by the emanations'' from various constitutional provisions. Do you accept that reasoning?

Seventeen years ago, the privacy right was found to include a right to abortion. Do you agree with that application of Griswold reasoning?

In Bowers v. Hardwick (1986), the court held that states can criminalize sodomy without intruding on any constitutional privacy right. Do you agree?

Does the privacy right protect smoking marijuana in private? By zTC what constitutional criteria do you distinguish between private behavior that does and does not enjoy constitutional protection?

The Constitution contains phrases -- e.g., ''cruel and unusual'' punishment; ''equal protection'' of the laws -- that must take their meaning from what? The logic and structure of the document? The community's ''evolving standards?'' If the latter, how do judges measure such evolution? Are not community standards expressed in the capital-punishment laws the court is asked to strike down?

Are there any circumstances in which the death penalty for a competent adult convicted of first-degree murder would be ''cruel and unusual punishment?''

Does the ''equal protection'' clause require that government action be color-blind? If so, can ''affirmative action,'' granting preferential treatment to individuals on the basis of race, be constitutional? What about sex-based preferences?

Do you agree with the court's decisions that the First Amendment guarantee of ''free exercise'' of religion requires payment of compensation to employees unwilling to work on the Sabbath, permits after-class Bible clubs in public-school facilities and allows displays of a menorah outside a public building?

Do you agree with the decisions that the ban on ''establishment'' of religion requires banning prayers in public schools, federal aid to religious schools, tax exemptions for religious periodicals and display of creches on public property?

Can you reconcile these ''free exercise'' and ''establishment'' lines of decisions?

What limits are there on courts' remedial powers? For example, can courts impose taxes to finance desegregation orders?

If as a justice you confront a case that presents an opportunity to overturn a precedent that you consider wrong, will you do so? How will you weigh the integrity of the Constitution against a constitutional error that has the dignity of precedent?

Is the expansion of individual liberty always good?

Should the exclusionary rule that resulted from Miranda v. Arizona (1966) include a ''good faith'' provision so that evidence that proves guilt can be used in court even if it was acquired as a result of a procedural blunder by police?

The Second Amendment says, ''A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.'' What does that protect? The right to own ''Saturday night specials?'' Assault rifles? Any weapon ''necessary to the security of a free state'' -- M-1 tanks, surface-to-air missiles, etc.?

Are you one of those who bought Robert Bork's best-selling book, ''The Tempting of America?'' If so, do you agree with his argument? If you have not read it, does that mean you are not interested in contemporary arguments about jurisprudence?

Of the 104 persons who have served as Supreme Court justices, whom do you most admire, and why?

What do you think of Justice Brennan's jurisprudence?

Judge Souter may be smart as a whip and deep as an ocean, but his nomination indicates that the rejection of Judge Bork has resulted in the institutionalizing of anti-intellectualism. One reason Judge Souter was nominated is that for 30 years he has walked across the sands of adulthood without leaving intellectual footprints.

Before Judge Bork, reticence was the rule for nominees. After Judge Bork, reticence should not be permitted. Because of what was done to Mr. Bork, we must re-establish the right to have a mind. Confirmation questioning should be used to reveal the qualities of the minds nominated for the most intellectually demanding positions in government.

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