Judicial--and Political--Restraint

With the imminent retirement of Supreme Court Justice Byron R. White, a group of extremists on both sides of the increasingly hostile abortion battle and those in a number of other visceral debates are preparing to commit a crime just as heinous--the murder of the federal judicial selection process.

In actuality, it may already be too late to save the seemingly antiquated idea that federal judicial appointments should be free from partisan political bickering. Indeed, most appointments in the modern era have involved the president exercising his power to guide the Court in one direction or another.

But the central notion that legal scholarship and experience are of paramount importance in the selection and confirmation processes seems to have drowned under the tide of special-interests that have bastardized the last three Supreme Court confirmation hearings. Unfortunately, Clinton seems intent on continuing this tragic decline--this summer, he promised a pro-choice nominee.

Not that there is anything wrong with being pro-choice. But a pro-choice stance for a judge must be a byproduct of larger judicial scholarship. And that scholarship should be the only factor in the nomination.

What the extremist special-interest grifters are failing to grasp is that the federal judiciary is not a democratic body. It was expressly constructed to be sheltered from the day-to-day whims of the people in order to better uphold the Constitution and maintain the rule of law. Federal judges are not elected nor are they subject to removal. They were placed above the political process by the framers of the constitution so they could check the excesses of the other two branches with impunity. Now, sadly, they have been dragged into the circus that they are supposed to keep under control.

Judge Learned Hand once said to Justice Oliver Wendell Holmes, "Do justice, sir, do justice!" Holmes replied, "That is not my job. My job is to apply the law." The judiciary is not in the business of making the laws. That duty is reserved to the legislative branch. Extremists who apply a single-issue litmus test to a nominee wish to achieve ends in the judiciary which they have no hope of achieving in the legislatures of this country. This is a circumvention of democracy and must be stopped.

Unfortunately, neither Holmes nor the founders ever envisioned a legislative branch that was so fearful of vocal, well-heeled bands of extremists. And they never conceived of presidents who would play such political games with decisions that were specifically intended to be apolitical. And they never in their worst nightmares thought the American people would try to force the federal judiciary to take up the slack borne of their own disinterest in democracy.

Were they alive in a few short months for the start of the confirmation hearings, the authors of the Constitution would be glued to C-Span watching what may be the final episode of the American federal judiciary they intended.

The confirmation system that will gorge itself on the blood of whoever decides to accept President Clinton's nomination is not only different from what Jefferson intended, it is also markedly different from the one that produced retiring Justice Byron H. White. Nominated by Kennedy in 1962, some of White's more conservative decisions during his 31 years on the court surprised and maddened the very Kennedy liberals who appointed him. But throughout he was praised for his independent judicial thinking and versatility. Such a independently qualified candidate is not likely to spring forth from the current partisan battleground that is the Senate Caucus Room.

The sickening politicization of judicial appointments that has taken place in and around Room SR-325 has all but destroyed the climate necessary for rational discussion and debate about matters of jurisprudence. The lesson learned from the political firefight and subsequent defeat of Robert H. Bork in the fall of 1987 was that the worst possible baggage that a that a nominee could be saddled with was a well-documented record on a range of issues.

This idea-hostile environment reduced President Bush to nominating David H. Souter '61, a judge whose memory should be measured in volumes but whose federal career could be measured in hours. The painful memory of Bork's defeat on issues of substance coupled with George Bush's apparent lack of backbone bestowed upon this country a relatively unknown and possibly unqualified nominee for the highest court in the country--a position for which there is no recall.

While it is possible that George Bush though Souter was the most qualified person for the job-his intelligent, moderate jurisprudence lends credibility to this theory-it is far more likely that he sought one of the least well-known conservative judges in the land so he could slip a right-wing Justice by the politicized den of vipers that await any nominee who enters the Senate caucus room.

But the national ordeal of Clarence Thomas, the latest appointment to the court, illustrates how far down into the mire the entire process has sunk. Sadly, those who felt that Thurgood Marshall's sucessor should be Black had their demand of color met at the expense of ideology; they were greeted with the one of the most conservative nominees of recent memory. Again, due to what happened to Bork, Thomas was without the judicial qualification that used to elicit a Supreme Court nomination.

So last spring, the nation watched as an ostensibly intelligent man purported under oath and with a straight face that he has no personal feeling on abortion. Here was a man so frightened by the poisonous atmosphere created by extremists on both sides of the abortion issue that he looked at 15 senators and hundreds of cameras and said that he did not privately discuss Roe v. Wade even though it was handed down while he was in law school.

Since Thomas lacked the substantive stands on issues that should be prerequisites for the Supreme Court, an anonymous source felt compelled to leak reports of Thomas' possible sexual harassment of Anita Hill and other deviant behavior.

In the long days and nights that followed, the nation was subjected to stories of early morning jogs, threats left on answering machines, and, perhaps most strangely, Thomas supporter John N. Doggett III's bizarre claim that he was once ordered to put his penis back in his pants.

This is not to say that Anita Hill was not sexually harassed, nor is it to say that the hearings were not entertaining. But none of these accusations, rebuttals and simply irrelevant statements could cloak the fact that Thomas was not the most qualified person for the highest bench in the land. Nor could they mask the truth: Thomas was both nominated and attacked out of purely political motives. If we are ever to have another Justice chosen for legal scholarship and not political palatability, this partisan poisoning of the process must stop.

Sadly, there is no sign of a let-up. A.E. Dick Howard, a professor at the University of Virginia, warns, "My friends in conservative circles are still smarting over the Bork hearings, even though it's been six years now. They're salivating over the thought of a markedly liberal candidate so they can 'do a Bork,' as they say."

The thought of anyone "salivating" to inflict political damage to the opposing side at the expense of a possibly qualified candidate should make every American nauseated. Republicans in the Senate and the right-wing special-interest groups who support them must resist the eminently political desire for payback and give what will hopefully be a qualified nominee a fighting chance.

They must put the painful memories of the Bork hearings behind them and act for the good of the country. If they are able to confirm an intelligent, qualified justice, they have done everyone a tremendous service, even if he or she does not meet with the approval of the NRA or the Heritage Foundation.

The Democrats must also do their part. In their first nomination opportunity since Kennedy, the Democrats should resist the temptation to bend to the liberal interest groups who desire revenge via a left-wing choice. An overly qualified, centrist choice would indicate that Clinton does not intend to sink to the cynical level of his predecessors. Democrats in the Senate must not give in to pressure to apply an abortion litmus test to the nominee; they have to be ready to have legitimate disagreements with the nominee on matters of interpretation without throwing the judge out with the baby, as it were.

President Clinton has said that he will "try to pick a person who has a fine mind, good judgement, wide experience in the law and in the problems of real people, and someone with a big heart."

Pressure from the American Heart Association aside, Clinton would be well-advised to eliminate the coronary concerns and concentrate on the first three.