Power grab

Robert H. Bork

June 24, 1993|By Robert H. Bork

IN NEXT month's Supreme Court confirmation hearings, the Senate Judiciary Committee will undoubtedly ask Ruth Bader Ginsburg detailed questions about her legal opinions on many divisive political issues.

This is a relatively new practice for the committee. For most of U.S. history, the nominee did not even appear before the committee: It was considered beneath the dignity of the office of a justice.

Even when the practice began in the 1930s, the questioning was usually perfunctory or nonexistent. In 1962 Byron R. White was asked only about a dozen questions. William O. Douglas waited outside the hearing room and was finally dismissed without being asked anything in 1939.

Two factors have changed all that. One is the presence of television in the hearing room. So long as the cameras are there, confirmations will be drawn-out photo opportunities. The other is the politicization of the process. The court is no longer primarily a legal institution but rather a political and cultural power -- in one sense, the supreme political and cultural power, because its mandates are difficult to override and will not be ignored or disobeyed.

Perhaps it was inevitable that an institution with such power would come to be viewed as a political prize and a political weapon.

What can stem this politicization? Practically speaking, only the citizens' and the court's understanding of the difference between judges and legislators. But devotion to the morality of process turns out to be a paper obstacle to those who are very sure about the morality of results.

Either nominees can be induced to give answers that will be used against them, or they can be forced into promises that they are likely to keep once on the court lest they embarrass themselves.

There are two disastrous consequences of the judiciary's meticulous parsing of a nominee's views. First, the televised hearings have become a referendum on whether Americans approve of particular constitutional interpretations. The prohibitions of the Constitution were put in place precisely to prevent majority opinion from ruling certain areas of life. That purpose is defeated if majorities decide what they want the Constitution to mean.

An equally anti-constitutional consequence is the Senate's crossing of the line that separates its powers from those of the judiciary and the executive branches. For example, during the Clarence Thomas hearings, Democratic Sen. Herb Kohl complained about the executive branch's assistance to Judge Thomas in preparing for the hearings.

Of course, removing executive branch support for the nominee would be fatal to any confirmation: The amount of material that must be located, classified and analyzed in preparation for the hearings is staggering.

Senator Kohl hinted that it was improper executive branch influence for the president's men and women to assist the nominee to prepare for the confirmation hearings. It is a wonder the senator did not object to the president choosing the nominee in the first place.

Actually, some senators did just that. Democrats Joseph Biden and Paul Simon said afterward that President Bush should have to clear future nominations with the committee -- which effectively meant with the Democrats -- before advancing a name.

That is not the design of our government. Federal judges, alone among public officials, are given life tenure precisely so that they will not be accountable to the people. They must consider themselves bound by law that is independent of their own views of what is desirable.

That is why an exploration of judicial philosophy, and not of political ends, is important in the confirmation process.

What kinds of questions might properly be put to a nominee to reveal their judicial philosophy? It is possible to explore a nominee's views without requiring a commitment from the nominee to vote a particular way in the future.

If the past is any guide, however, the confirmation hearings for Judge Ginsburg will run along the lines of: "Are you now, or have you ever been, critical of the reasoning of Roe v. Wade?"

It need not be so. The question about Roe v. Wade could be put this way:

"If a claim for a constitutional right to abortion came before the court, how would you reason about it and what materials would you think relevant?"

If questions like this are posed to Judge Ginsburg and future nominees, the senators and the public will learn how the the nominees understand the role of a justice, without requiring from them a commitment to vote any particular way on a specific issue.

Where the Constitution is silent, the justice has no authority. To act against legislation without authority is to engage in civil disobedience from the bench and to perpetrate limited coups d'etat that overthrow the American form of government.

That is by no means a majority position in the Senate, on the court or among legal academics, and perhaps it is not a majority view among the American people.

Nevertheless, if senators ask questions about judicial philosophy rather than seeking commitments to particular decisions, it would make a significant contribution to the American understanding of the Supreme Court's legitimate role in governing us.

Robert H. Bork is a resident scholar at the American Enterprise Institute. This is adapted from an article in July/August issue of "The American Enterprise."

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