Presidents still can't be sure about their court nominees ON POLITICS

Jack W. Germond & Jules Witcover

July 06, 1992|By Jack W. Germond & Jules Witcover

WASHINGTON -- Supporters of President Bush and Gov. Bill Clinton, in referring to Ross Perot, like to warn voters about "buying a pig in a poke" -- accepting someone without knowing what they're getting. The expression might just as well apply to recent Supreme Court appointments, as graphically illustrated in the court's controversial 5-4 decision on abortion rights.

In each of the last five appointments -- Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy by President Ronald Reagan and David Souter and Clarence Thomas by Bush -- the general assumption was that the conservatives named would ultimately vote to overturn the landmark Roe vs. Wade decision. At their confirmation hearings, it was regarded as an intrusion to question them too directly about how they would vote on this issue or, for that matter, on other specific issues before the court.

On the occasion of each confirmation, a great gnashing of teeth occurred among abortion-rights advocates, along with recitations of the last rites over Roe vs. Wade. Indeed, by the time Thomas' nomination came before the Senate, the accepted word was that the court already had a majority to overturn the decision.

Last week's vote on the Pennsylvania law, placing greater restrictions on abortions but maintaining Roe vs. Wade's basic abortion right, knocked that thinking into a cocked hat. Three of those last five appointments -- O'Connor, Kennedy and Souter -- joined with Harry Blackmun, the author of Roe vs. Wade, and John Paul Stevens in turning back the bid of the other four members of the court to throw out the 1973 decision entirely.

The votes of O'Connor, Kennedy and Souter surprised abortion-rights supporters and jolted anti-abortion forces, with some of the latter angrily wondering how Bush particularly could have been only half right in the expectation that his two choices, Souter and Thomas, would vote to ditch Roe vs. Wade.

In his White House lawn Q-and-A session with voters the other day, the president, when asked whether if re-elected he would "work to get another Supreme Court justice appointed that will help overturn Roe vs. Wade," replied: "Well, let me tell you something. I think people now know that when I said there is no litmus test, that I wanted people on the bench to interpret the Constitution rather than legislate, I think they know now that I was telling the truth -- that there was no litmus test on that and there will be none with me."

Whether that is so or not, you can be certain that when the next Supreme Court nominee goes before the Senate Judiciary Committee -- probably upon the eventual resignation of the 83-year-old Blackmun -- the senators on both sides of the abortion issue won't be shy this time about asking that nominee about his or her views on Roe vs. Wade.

The appointments of the last five jurists have not by any means been the first times that presidents have bought pigs in pokes as their Supreme Court nominees. Blackmun himself was widely regarded to be a conservative when he was appointed by President Richard M. Nixon after Nixon's first two choices for the vacancy, Clement Haynsworth and G. Harrold Carswell, were rejected.

President Dwight D. Eisenhower, long after his appointments of Earl Warren and William Brennan, neither of them seen as staunch liberals at the time, called those choices the two biggest mistakes of his presidency. And if President John F. Kennedy could see many of the conservative votes of his old buddy, Byron "Whizzer" White, he'd no doubt blanch.

This history takes a bit of the air out of the dire warning from Clinton that the re-election of Bush would assure the death knell of Roe vs. Wade. While it seems inconceivable that Bush as a strong opponent of abortion would buy another pig in a poke on a third opportunity to pick a member of the court, the record of the recent past indicates that a president can never be sure how his appointee will vote once he takes his place on the bench.

In any event, Clinton can be expected to rally more abortion-rights advocates to his candidacy by pointing out that the court is, as he said on one television call-in show the other day, "just one vote away from repealing" Roe vs. Wade.

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