Questioning Judge Souter

September 13, 1990

The Senate Judiciary Committee begins its hearings on the nomination of Judge David Souter to the Supreme Court today. Chairman Joseph Biden says, "Even if Judge Souter should decline to answer specific questions regarding specific cases, I believe he must expect to be asked quite specific aspects of his judicial philosophy. And we have a right to expect answers." We don't like the implication that there will be questions regarding specific cases. That isn't appropriate. On the other hand, trying to find the nominee's judicial philosophy is not only a senator's prerogative, it is his duty. A senator who believes that a nominee's philosophy would result in harmful Supreme Court decisions has a duty to oppose him.

Some interest groups concerned with abortion think that th judge's views on it should be the litmus test on his acceptability. Some suggest he should be required to say whether he would uphold or over-rule Roe vs. Wade, the landmark pro-abortion rights Supreme Court decision. We reject that idea out of hand, for two reasons:

One, a Supreme Court justice votes on more than 100 cases a year, which involve scores of issues besides abortion specifically and privacy and liberty generally. A justice's fitness has to be based on a broader view. (We don't like the fact that Judge Souter once ruled in New Hampshire that an editorial's "obscurity" was grounds for a libel suit. But we would not oppose his confirmation just on that basis.) Two, if Judge Souter were to tell a president, senator or interest group how he would vote on a specific case, he would disqualify himself from sitting on such a case, having in effect already sided with one of the litigants.

The president limited his inquiry to Judge Souter's judicial ideas in the larger sense, we are told. Does he accept precedent except in unusual circumstances? Will he respect minority rights derived from the Bill of Rights in the face of overwhelming public opinion and among lawmakers? Does he believe the intent of the framers of constitutional language should be read in terms of their own environment or today's? These are proper questions for senators. And to repeat, a senator on either side of the philosophical divide who disagrees with answers to questions like those has the right and responsibility to vote "no."

Even here we would suggest caution, however, and giving the nominee the benefit of the doubt, as long as he demonstrates the intellectual, moral and temperamental attributes a justice of the Supreme Court needs. That is because no one -- not even Judge Souter -- knows how he will decide cases over the years. Asked if a person changes once donning a justice's robes, Justice Felix Frankfurter replied, "If he is any good he does." "Change you must if you are to do your duty on the Supreme Court," said former Chief Justice Earl Warren. He did.

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