Souter must be forced to reveal his principles

Thomas A. Bowden

September 13, 1990|By Thomas A. Bowden

AN "enigma."

That's the word most people are using to describe David Souter, President Bush's nominee to the Supreme Court. The word carries with it a hint of suspicion -- and with good reason.

What makes a person an enigma, a mystery? The lack of known principles.

To know someone's principles is to know the standards to which he or she will repair in solving a problem. People of firm principles, who aren't afraid to make them known, enable others to grasp what kind of people they are by grasping how their minds work.

What makes David Souter an enigma? The same thing that makes him a good nominee in Bush's eyes: the absence of known views on the most important issue in evaluating a judge -- the nature of individual rights.

Here is the proper principle, to which every potential judge should declare his allegiance: The rights of individuals exist prior to, and constitute the reason for, the institution of government. Thomas Jefferson forever crystallized this principle in the Declaration of Independence: "To secure these rights, governments are instituted among men . . ."

Where does David Souter stand on this basic principle of American government? What meaning does he ascribe to the word "rights" in Jefferson's phrase?

Nobody seems to know where Souter stands. Does he?

If he doesn't, that fact alone disqualifies him for a seat on the Supreme Court, which is often the only institution standing between an oppressive government and a helpless individual.

If he does know, but isn't saying, then he is anathema. Only a coward, or a scoundrel with a secret agenda, would refuse to state his views publicly on this most important of political principles.

It is not enough for Souter to reply that he will obey the literal words of the Constitution and the various acts of Congress, because not all of our individual rights are listed in those documents.

The most obvious, but by no means the only example of such unlisted rights is the so-called "right of privacy," which the Supreme Court has applied in upholding the right to use contraceptives or undergo an abortion.

The right of privacy does not appear in the Constitution in so many words. It doesn't have to. Our rights are not restricted to those granted to us in any document. It is not the government that grants us rights; it is the other way around. The government exists precisely and only in order to protect our pre-existing rights.

Souter, if his nomination is confirmed, cannot avoid making a decision on this essential issue. The Supreme Court every year must decide not only whether to uphold existing decisions, but also whether to decide new cases on the basis of individual rights that are not written down anywhere.

Thus, the Senate Judiciary Committee must reject Bush's attempt to banish discussion of basic principles from the confirmation arena.

Clearly, Bush is trying to avoid another Robert Bork fiasco. But can we permit Bork to poison the spring of principle for all Supreme Court judges to come, so that only a philosophical cipher can ascend to the highest court in the land?

Bork took a stand on the issue of individual rights. It was the wrong stand, but it was a principled stand. He is a radical majoritarian, and he said so in plain English. He believes there are no individual rights over and above what the political majority writes down, in the Constitution and the laws of Congress.

Bork actually holds that if a "right" is not enumerated in the Constitution or a statute, it literally doesn't exist. So Bork -- on principle -- would vote to repeal the various Supreme Court decisions that recognize individual rights not enumerated in the Constitution, including the right of privacy.

Bork's principles are evil and anti-American. The public saw that evil and, in a memorable burst of fury, repulsed him, refusing to permit him a seat on the high court. The proper lesson to be learned from Bork's defeat is not that aspiring judges should shun all basic principles, but only the wrong principles.

Unfortunately, the Bush conservatives share Bork's views. Thus, in replacing Justice Brennan, they faced a brutal fact: Their ideas could not win in an open debate.

The American public has a right to know where Souter stands on the American principle of government. The judiciary panel need not press him for a stand on each particular issue, such as abortion. If Souter is a man of integrity, his stand on the basic principles will govern his decisions on particular issues.

But if Souter is allowed to sneak onto the Supreme Court without being forced to make his principles clear, then Bush will have accomplished a cover-up much more heinous than Watergate -- a philosophical cover-up that could haunt us for decades.

Thomas A. Bowden is a Baltimore lawyer.

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