Mysteries of life include a court nominee's beliefs


July 12, 1992|By ROGER SIMON

Maybe it's just the nature of my job, but I don't see anything wrong with asking direct questions and getting direct answers.

Want to be president? Tell me how you feel about the economy and foreign policy and abortion and civil rights and all sorts of other things.

Want to be a senator or congressman? Tell me the same things.

If you just want to be Secretary of Agriculture -- and somebody has to -- I expect you to answer some questions on farm policy.

But when it comes to selecting a Supreme Court justice, the rules change. And the game playing begins.

Though it is a lifetime job, though it profoundly affects the lives of every American, we are not really allowed to know very much about Supreme Court nominees.

Take Clarence Thomas. During Thomas' confirmation hearing, the chairman of the Senate Judiciary Committee asked him how he felt about abortion.

And Thomas replied that he had no opinion on the subject.

Nobody believed that. But that is the way the game is played. Nominees are coached by the White House that it is better to say nothing at all than to say something and risk a negative vote.

George Bush is proud to say he does not ask his Supreme Court nominees how they feel about abortion. It is "improper," Bush feels, because it is a "litmus test" question.

So Bush and his nominees play a little guessing game: He doesn't ask them about important issues; he just tries to figure out if they are conservative enough to vote the way he wants them to.

Bush spoke to David Souter for all of 45 minutes before nominating him to the Supreme Court. Bush's staff had given him a list of questions to ask Souter, but Bush crossed off a number of them because he thought they were "inappropriate."

Among the inappropriate questions was how Souter felt about ** abortion.

The Senate Judiciary Committee did not get an answer on that question from Souter either, and he breezed through the confirmation process.

In fact, Souter was the perfect nominee, because, as one news account said, he "has not given a speech, written a law review article or, as far as anyone knows, taken a position on the correctness of the Supreme Court precedents on abortion or any other issue."

As it turns out, Souter has proved to be a surprise to George Bush. Souter has shown himself to be a centrist, voting recently to uphold the basics of Roe vs. Wade, while limiting it. Bush got luckier with Clarence Thomas. Though Bush refused once again to ask Thomas the "litmus test" question about abortion, Thomas has turned out to be one of the most conservative members of the court, saying he would vote to overturn Roe vs. Wade.

But I don't understand why we have to wait until these guys get on the court for life to find out where they stand.

Now a presidential candidate has broken with tradition and has said he will ask potential nominees how they feel about Roe vs. Wade.

Bill Clinton has announced that if he is elected president, he will not nominate anybody to the court who is not pro-choice.

"I think a judge ought to be able to answer a question in a Senate hearing, 'Do you or do you not support the right to privacy, including the right to choose?' " Clinton said.

Later, asked by Bill Moyers if his first Supreme Court nominee would be a strong supporter of Roe vs. Wade, Clinton said: "Yes."

Moyers then asked him: "Is that not a litmus test?"

Clinton: "It is, and it makes me uncomfortable."

You can see why: Litmus tests can be carried too far. You could draw up a list of 150 issues and demand the proper answer to each one before nominating a person.

But when we are talking about Roe vs. Wade, we are talking about a fundamental issue. We would not want a president to nominate anyone who was a racist and did not believe in civil rights. That is, in effect, a litmus test issue.

A woman's right to choose whether to have an abortion is equally fundamental. And a president has a right to ask for a straight answer before nominating and the Senate has the right to ask for a straight answer before confirming.

It's time all the mystery and all the games ended.

We wouldn't buy a pig in a poke, so why should we buy a Supreme Court justice that way?

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