Stealth Nominees

The news that President Bush seems likely to has nominated Judge Edith Brown Clement John Roberts to the Supreme Court, choosing the potential nominee with the thinnest record on most of the issues, means that we will really have to wait for the hearings to see whether this nominee can be treated as a mainstream conservative or someone far beyond the pale.

I am sorely tempted to start a left-wing blogosphere love-in for Clement: "She's perfect, my second cousin's wife clerked for her and assures me she's secretly pro-choice," etc., just to make the right-wing crazy. What's the harm? We're not going to get a better nominee. And it would also make the nomination anti-climactic, so we can get back to Rove-gate, Social Security, etc. But in fact I don't know anything about her, and had her mixed up with Edith Jones until two weeks ago.

Bruce Ackerman has said all that needs to be said about stealth nominees, here and more recently in the American Prospect. But I have my own perspective on the prospect of a stealth nominee. In 1990, I was hired by Bill Bradley to be his speechwriter. I was 27. Within a month, Bush the First nominated David Souter to succeed Justice Brennan. After the hearnings, Bradley decided to vote against Souter, one of only seven. I drafted his floor statement, which he delivered with less rewriting than usual, and a day or two later, the Washington Post devoted about a third of its op-ed page to reprinting the statement, which essentially made the case against a stealth nominee. At the time, that was a pretty nice accomplishment for a new job! Unfortunately, it's not much to brag about since it was totally WRONG. Since then, I've met Souter and he was appropriately non-plussed about it, joking that it proved that Rhodes Scholars didn't stick up for each other.

I hadn't read this in a long time, and even though it is WRONG about Souter, it's not bad as a way of making the point that even though a nominee can and often should evade questions about particular decisions, it is reasonable to expect a nominee to hold and to state some views on basic principles, such as the right to privacy or the relevance of the Commerce Clause.  And I think the point made here that the concept of a right to privacy is not only relevant to abortion is all the true today and all the more likely to be forgotten.

It was only wrong in a tactical sense: Souter has turned out to be a very good justice (not just from an ideological standpoint) and if he had actually answered some of these questions honestly he would have been torpedoed by the right. Whether Bush I knew what he was doing or not remains a mystery. It was very reasonable for Bradley to try to set a higher standard of what nominees should talk about, and Senators of both parties have an obligation to demand more from Edith Brown Clement Roberts than they got from either Souter or Clarence Thomas.

 

Mr. BRADLEY. Mr. President, there is very little that the Constitution asks this body to do that cannot be undone. But there is one responsibility by which each of us as a U.S. Senator leaves a nearly indelible mark on the fabric of this Nation, not just as a government, but as a people. That is our role of `advice and consent' in the confirmation of the nine Justices of the U.S. Supreme Court.

Our role in determining which nine fallible human beings should hold these unmatched powers over the direction of our society is a power we share with the President. It is nonetheless one that we must take very seriously.

The history of this century shows that the Court can be a force of reaction. For decades, the Court denied such basic freedoms as the right to criticize war or to organize a union, and such basic measures of justice as the minimum wage. The Court can also light the path of progress toward an open, free, and fair society, as it did when it ruled that segregated schools were unconstitutional or that people cannot be forced to pay a tax in order to vote. Most of what we do in this body involves shaping a part of America through the instrument of legislation; the Court, on the other hand, defines possibilities for an entire Nation.

Mr. President, the nomination that is presently before us requires, I believe, even more thoughtful scrutiny than most. President Bush chose to nominate a man whose views on most of the fundamental principles of constitutional jurisprudence were unknown. Judge David Souter has spent most of his career in the courts resolving basic conflicts among individuals. While this experience is in some ways preferable to that of a nominee whose whole life has been spent on a law school faculty, it does require us to demand answers to some very relevant questions that, for another nominee, might be answered by his record.

There are no clear guidelines about what a nominee to the Supreme Court should or should not talk about. The distinguished chairman of the Judiciary Committee put it quite succinctly to Judge Souter in saying that the committee reserved the right to ask any question and granted Judge Souter the right to refuse to answer any question. Some Court nominees have answered every question on every topic in excruciating detail, while others have eschewed all but the most general discussions of principle. I understand that a nominee might conceivably refuse to answer almost every question other than the biographical, on the grounds that it might become relevant to a case before the Court. Of course, I would not hesitate to vote against such a nominee, and I'm sure that a majority of my colleagues would join me. Every Senator understands that different circumstances require different standards of candor from the nominee. In the current circumstance--a nominee with no record on constitutional issues--a high degree of candor is required, but more importantly, a nominee must be consistently candid. It is not appropriate to discuss some pending legal questions, such as separation of church and state, in great detail, and then to decline to answer when the questions move to other areas of the Constitution.

Judge Souter provided the Judiciary Committee with thoughtful, thorough answers about several major areas of the law. He described the principles by which he would adjudge cases of discrimination based on race or gender. He described his views on the separation of church and state, the first amendment, and capital punishment. He was even willing to discuss specific cases, such as Lemon versus Kurtzman, which established a standard for church-State cases, even though there is a motion for rehearing pending before the court in that very case.

Before the hearings, I was disturbed to learn that Judge Souter had asserted that there was no need to examine the racial composition of New Hampshire's State government work force because he knew without checking that there was no discrimination in any department. And his statement that the rights of less-educated citizens somehow harmfully diluted the votes of the better educated betrayed a serious confusion about democracy's virtues. But by speaking in detail about these statements and committing himself to sustaining the precedents that outlaw discrimination in hiring and literacy tests for voting, Judge Souter offered assurance that the complacency and the elitism implied by his earlier statements would not inform his judicial thinking. Had Judge Souter not made clear that he appreciated at least the legal precedents regarding civil rights, I would not hesitate to urge the Senate to reject his nomination. But the method of analysis that he committed himself to in the Judiciary Committee hearings I have no reason to doubt will be his method if he sits on the Court. The point is, Mr. President, where he was not silent, I am prepared to take Judge Souter at his word.

There was one area, however, about which Judge Souter refused to describe his method, principles, or even his basic instincts. And that area happens to be the one that is of deepest concern to millions of Americans and the one on which the Court will almost certainly set a permanent direction for the Nation in the next few years. It is the question of a right to privacy.

Judge Souter said only one thing about the right to privacy--that married couples possessed such a right as described in the Griswold decision. Does this right belong to individuals or does it somehow inhere in the institution of marriage? Judge Souter would not answer. Does this right apply only to the purchase of contraceptives, as in Griswold, or does it extend to other deeply personal choices about reproduction? Judge Souter would not answer.

All of us know that, given the balance on the Supreme Court, we are being asked to give Judge Souter virtually sole authority over whether the Court will continue to recognize a right to privacy from the State's presence in our personal lives. All of us also know that one of the inseparable aspects of a right to privacy is the right for a woman to choose whether or not to have an abortion. Indeed when the question of the right to privacy was raised in the Judiciary Committee, Judge Souter appeared to presume that it was nothing more than a euphemism for the right to a safe and legal abortion. We further know that Judge Souter is the nominee of a President who made a clear political commitment to his party and to the American electorate that he would seek to wipe out that right. Is Judge Souter the agent by which George Bush seeks to keep his campaign pledge to make abortion illegal, or is he the agent by which George Bush seeks to break that pledge? Mr. President, the answer remains unclear.

What is clear is that the most immediate consequence of the Court's rejecting the right to privacy would be to deny millions of women the right to choose and to return us to the day when illegal, back-alley abortions put the lives of thousands of women at risk. That is a chance I am not willing to take.

I would also remind my colleagues that the right to privacy is no more a euphemism for abortion than the right to free speech is a euphemism for a particular statement. The right to privacy is a basic promise of American life, one that we will all intuitively want to see protected, particularly as advances in technology give the State vast new powers to intrude into the most private recesses of our lives. Without some notion of the right to privacy, judges will have an inadequate method by which to decide these cases fairly and humanely. Because the right to privacy will be the fulcrum of the relationship between the individual and the State as we approach the 21st century, we cannot entrust it to a jurist who, while he says he believes it exists, cannot make clear where it is found, what it means, and to whom it applies.

Mr. President, these are the fundamental issues for our time and for the future. To confirm a nominee who refuses to discuss them is to surrender our obligation to offer thoughtful advice and knowledgeable consent on the nomination of Justices who will hold awesome power over our lives. I will not do that and I will vote against the nomination of Judge David Souter .

(I took this version from the Congressional Record; the version in the Post may have been changed slightly.)

[UPDATE: Obviously, updated to reflect Roberts nomination.]

Comments

[global yokel]

The great irony is that we liberals find ourselves having to defend the notion of privacy. I thought that keeping big government off our back and out of our personal lives was supposed to be one of the sacred principles of conservatism.

[Jackson]

You write a nice speech. You may have been wrong about Souter -- that's the kind of being wrong we can all live with -- but the facts of the speech are right.

So let me throw this in the hopper: Great writing never lies. I'm not sure where this puts us on Reagan's "city on a hill" motif, but when something really moves us, makes us want to stand up and say where do I sign up -- that stuff has to come from a point of truth.

I think it has to speak from a place of certainty. W. has posited that in terms of "faith," but the underlying force behind the Reformation was reason -- ratio recta, right reason.

You were writing under the influence of ratio recta. Good going!

[RMG]

The great irony is that we liberals find ourselves having to defend the notion of privacy. I thought that keeping big government off our back and out of our personal lives was supposed to be one of the sacred principles of conservatism.

Over at offthekuff there's been a debate over how privacy and get-the-government-off-my-backism fits into a liberal mindset. I think (and this is especially true in libertarian-leaning Texas) libertarianism seems to be this catch-all fall back position when Democrats are either too afraid to advocate or don't believe in the liberal position.

A perfect example of this is gay marriage. A real liberal would argue that government must extend the rights and privileges of marriage to everyone, regardless of sexual orientation, and propose legislation allowing gay marriage. Instead, the fall-back libertarian position (incredibly popular among centrists) is, "Well...government shouldn't be involved in love or marriage." It's a specious argument, but a reflection of how weak liberalism is right now in the left-center coaltion in US politics right now.