On the reef: The law and David Souter

Paul Greenberg

September 13, 1990|By Paul Greenberg

THE GRAND inquisition is about to begin in the Senate of the United States, and some folks want to know how David Souter, nominee for the Supreme Court and fair game, will decide the cases to come before him. It's little enough to ask. They might even settle for knowing how he'll go just on abortion. These folks aren't about to buy a justice in a poke. You wouldn't buy a car without a test drive, would you? These careful consumers want an answer up front: Is he for or against Roe vs. Wade? Which side is he on?

Lest you think I exaggerate, note a piece on the Op-Ed page of The New York Times by Ann Lewis, contributing editor of Ms. Magazine and political consultant. If this is a satire, it's apparently not a conscious one. The writer has a checklist waiting for Judge Souter, beginning with A for Abortion. Lewis seems perfectly serious when she asserts a "right to know where he stands." Those of us who think it would be not only wrong but shortsighted and foolish to ask a judicial nominee how he would decide specific issues get our comeuppance:

"Senators can, and I believe should, ask the questions that Judge Souter's brief record avoids. They will thereby establish for this and future nominations that appointments to the U.S. Supreme Court are too important to be decided in a substantive vacuum ... As I hear some commentators weigh in, it seems that they believe it would be wrong to ask a prospective judicial nominee any serious question to which the answers might be interesting -- or relevant. But the Constitution doesn't say it would be wrong. Not even the strongest advocate for presidential authority can cite the Constitution as saying senators cannot ask substantive questions of judicial nominees or that nominees are barred from answering."

Where does one begin to unravel such a net? Let's skip over the writer's simpler misunderstandings.

Beyond all the obvious problems with the "litmus test" approach to confirming justices of the Supreme Court, there is a larger, more basic misunderstanding involved here. It is so common today that it is worth examining, the way one might a cancerous tissue in the process of metastasizing. It is the assumption that men make the law. It is the notion that the law has no independent existence or influence apart from those who shape it. That is doubtless why it is so important to get judicial nominees on record issue by issue, as we would a candidate for Congress or the City Council. The law is there to be tamed; the possibility that it can and should tame us, even liberate us from our own cherished fixations, is not to be found in this view of confirmation as little more than checking off today's issues.

Once upon a time Americans might be expected to understand and even approve the idea that this is a nation of laws, not men. Now such an idea must be explained. Once upon a time it was the daring graduate assistant who would point out to freshman students that decisions of the Supreme Court are not brought by constitutional storks, but are shaped by economic interests and political ideas -- what Oliver Wendell Holmes called the "felt necessities" of the times. Now the point is so well understood that it is mistaken for the only one, and Americans have trouble thinking of constitutional decisions as anything but the product of social and political liaisons in the back seat.

It would be novel today to point out that the law can rise above the times -- that it is a great teacher even of judges.

Imagine: There may still be jurists who do not make law so much as much as discover and propound it, sometimes even apart from their own favorite ideas. The available opinions of David Souter on the bench show the beginnings of such a capacity, though surely those decisions will be distorted by the kind of critics who have their own ideological agenda to pursue. Indeed, they may be so wedded to it that they are unable to imagine anyone without an ideological agenda.

Learned Hand once compared the law to a coral reef, "of whose eventual structure the artificers have no intimation as they labor." No judge worthy of the name or of the law would say how he would decide a particular case should it come before him -- any more than an artist would describe just what a work in progress will signify when completed, or a scientist will tell you to a certainty how a projected experiment will turn out. But to speak of the law in such terms today -- as art and science as well as politics and sociology -- is to be accused of talking not law but metaphysics.

What was once a given -- the majesty and independence of the law -- now has to be explained. If we have learned much, we have forgotten much. Alas, the intensifying debate over this nominee may provide more confrontation than education.

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