REGARDLESS of the political times, it seems reasonable enough to expect a nominee for the Supreme Court to express a commitment to basic constitutional freedoms. But in the twisted politics of the Reagan-Bush era, only selective commitment is required.
The confirmation hearings for David Souter made perfectly clear that the 14 fumbling senaLindaCottontors on the Judiciary Committee had no intention of getting into a brawl with George Bush as they did with Reagan over the nomination of Robert Bork three years ago. Not with the deficit pumped up by the gulf crisis and elections coming in November. No way. Especially on this pesky issue of abortion.
It was enough, they figured, that Souter respects judicial precedent and that he said he supports the high court's decision in Griswold vs. Connecticut, which gave married couples access to contraception on the grounds of protecting marital privacy (though he added that such rights for unmarried people are "not a simple matter").
What women's groups were looking for was a little clarity on Souter's views on the right of millions of American women to privacy and the freedom to control their reproductive systems, including the choice of abortion. What they got instead, when they raised the issue at a Sept. 18 hearing, was an adventure in old-time paternalism.
Molly Yard, president of the National Organization for Women, gave a stirring and passionate testimony. "I think I have never felt that I was speaking on a more solemn occasion." She paused, choked with emotion. "Because we are here literally on behalf of the lives of the women of this country."
Ho hum. Sen. Arlen Specter fumbled with some papers. A few others stared at the walls. Yard was pleading for the men on the committee to recognize that reproductive rights are, for women, as important as rights of free speech and racial justice. "If one cannot decide for herself when or whether to have children she surely has no freedom -- no freedom to control her life, to plan her life, to decide what to do with her life. To live the life she dreams."
Sure, sure. They had heard all this before. Besides, the committee had done some perfunctory poking around in the nominee's psyche to find out how he felt about Roe vs. Wade. But Souter wouldn't be pinned down: "I have not got any agenda on what should be done with Roe vs. Wade if that case were brought before me." he said. "I have not made up my mind." This is a lie, of course. There isn't anyone in this country over 8 who doesn't have an opinion on Roe vs. Wade. But no one on the committee had any intention of going to the mat for women.
Still the women's groups persisted. "When abortion became legal," Yard continued, now almost desperate, "women in the United States became free because they could now control their reproductive lives. For 17 years women have had this freedom. But by your consideration of David Souter for appointment to the Supreme Court, you are really considering ending freedom for women in this country."
Eleanor Smeal, president of the Feminist Majority, followed with an equally passionate testimony. "We don't have to imagine, senators, what's going to happen [if Roe is overturned]. We know what's going to happen." Smeal's hands shook and her voice quivered as she waved a picture of Becky Bell, the 17-year-old who died two years ago when a parental consent law sent her scurrying to a quack abortionist.
Silence filled the chamber. Then came the deep, slow Southern drawl of Sen. Strom Thurmond: "Mr. Chairman, we've got a lovely group of ladies here. We thank you for your presence. I have no questions."
No questions? Molly Yard winced.
That brought a bitter tongue lashing from Sen. Alan Simpson. "Don't shrug," he ordered Yard. "I see that all the time. I get tired of watching shrugs and kinda lookin' up at the ceiling when Strom Thurmond says something courteous" (here he rolls his eyes and stares upward, mocking the women). It was as if he were reprimanding a 12-year-old who had turned up her nose at Mother's gourmet dinner. Then, in strikingly school-teacherish tone he admonished the women: "Let's just stay in the picture and listen for a minute. . . . That might even be a courteous thing to do."
But it wasn't over yet. Like the man who beats up on his wife for burning the steak, Simpson told the "laydees" that it was their fault the president had to nominate a judge with no substantial discernible record. And it was their fault that Souter was evasive on this issue -- because they had vociferously opposed Bork. ("If you were a better cook, woman, I wouldn't have to slap you around.")
It took the presence of mind of the chairman to stop Simpson's tirade. "Maybe we could move on," Biden suggested. But they didn't. Not really. The concerns of the Women's Rights Panel were pretty much scuttled. And on Thursday the committee voted overwhelmingly to endorse Souter.
Now -- no doubt -- he will be confirmed, despite his silence on an issue that is vital to at least half the people in America. The word is that it's a pretty good bet Souter is committed to protect these basic liberties. That's a perilously big gamble -- with consequences, Yard deftly pointed out to the all-male Judiciary Committee, that "not one of you will ever have to face."