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The Rights Worth Fighting For

By Jonathan S. Cohn

IT WAS so simple last time around. When former President Ronald Reagan nominated Robert H. Bork to the Supreme Court, liberal and moderate interest groups rallied to block the confirmation, and the Senate promptly nixed his nomination--reasoning that Bork's interpretation of the Constitution was entirely out of sync with the mainstream of American legal thought.

This time, a much more clever president--George Bush--has nominated a much less offensive candidate--David H. Souter '61--and few are voicing any objections. A handfull of abortion rights groups have taken stands against the nomination, but even they have lost interest, turning their attention instead to the state legislatures where they believe the abortion battle will soon be fought.

Thus, Souter has enjoyed a relatively easy ride through the confirmation process. The invisible man from New Hampshire did sketch a vague self-portrait--carefully depicting himself as a moderate with an open mind--but avoided divulging his views on specific issues, most notably abortion.

Souter's vague sketch is not enough when the rights and lives of millions are at stake. The Senate Judiciary Committee should call Souter back for more questioning now, and refuse to recommend his confirmation until he tells what he thinks about a number of key issues, including abortion.

IT'S NOT the most comforting thought--holding Supreme Court nominees up to an ideological litmus test. Judges, after all, are supposed to be "objective" or "impartial" jurists. They're supposed to understand some neutral legal framework embodied in the Constitution and decide the merits of specific cases without regard to political ends.

Unfortunately, reality is far different. The Constitution is sufficiently ambiguous that no two--much less nine--jurists could ever interpret it in exactly the same way. Everyone has a different opinion about what the document means, and those opinions hinge on the reader's political values. Thus, one justice might believe that the 14th Amendment protects only Blacks from discrimination, while another might argue that it protects all groups.

Some purists, even if they accept that values affect a judge's interpretation of the Constitution, maintain that nominees should not be rejected based on their politics so long as they are intellectually competent. But the Constitution does require the Senate give its "advice and consent" to all court nominations--and that is justification enough to reject a nominee based on politics.

When the Senate rejected Bork, it did so because his constitutional interpretation was so radical that it challenged principles now considered fundamental to modern legal thought. Bork, for instance, had said there was no such thing as a right to privacy, saying that the Court had acted improperly in striking down a law prohibiting the sale of contraceptives in the case of Griswold v. Connecticut.

When the Senate heard this, it determined that principles like the right to privacy should not be challenged and sent Bork packing. In other words, the Senate decided Bork's politics simply went too far.

Souter, of course, is no Bork. He is evidently much more moderate, endorsing both the right to privacy and the principle of affirmative action to "undo" past injustices.

But he needs to tell us more.

THINK of it this way. No Senator would vote to confirm a judge who would overturn Brown v. Board of Education, the decision that ended school segregation. Few Senators would support a nominee who questioned Griswold v. Connecticut (which established the right to privacy) even though intellectually competent people and cogent legal arguments can be found to oppose it. Some political ends are so important to Americans that we cannot allow a Court appointee to jeopardize them.

So why not apply the same standard to judges who don't believe in the right to abortion? What right could be more fundamental, more vital, than the right to control one's body and soul?

And abortion shouldn't be the only issue. What does Souter think about the recent erosion of the Fourth Amendment, which protects citizens from wrongful search and seizure? How will he rule on free-speech cases?

The Senate is perfectly entitled to turn down a Bork, a Souter, or any other appointee who fails, in its estimation, to sufficiently uphold these political ends--regardless of the appointee's scholarly qualifications. If it came to a standoff between the Senate and the President, the voters would eventually be called upon to break the dead-lock by voting one or the other out of office--the surest guarantee that the Supreme Court will reflect the political values of the citizenry.

OF COURSE, liberals stand to lose a lot by turning the Souter nomination into such a ideological war. The battle could have high political costs for the Democrats, with congressional elections just around the corner. Only a month ago, I argued that the Senate should stay away from a confirmation battle for precisely that reason.

That's what the Senate has done up until now, and most liberals seem satisfied with the situation. Souter has already proven himself something of a moderate--more so than any recent Republican nominee. And who knows? Souter could be a liberal hiding in a conservative's clothing.

But with the court's precarious pro-choice majority and the lives of millions hanging in the balance, the Senate must dare to err on the side of caution. It can and should reject Souter and other any nominee who will not assure them in unambiguous language that he or she will uphold the right to abortion against all encroachments. Some things are worth fighting for.

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