WHEN DAVID H. SOUTER appears before the Senate Judiciary Committee this week to try to win confirmation as a Supreme Court justice, the senators will have to frame their questions carefully, or they will come away knowing little more than what they knew before the hearings began.
The senators would be foolish to waste a question on whether Judge Souter believed that the Constitution protects a person's right to privacy.
That question was asked of Justice Anthony M. Kennedy during his confirmation hearing in January 1988 and his response was vague and inconclusive. Of course, he said, there is a zone of privacy beyond which government may not go but it would be reckless for me to say where the line ought to be drawn since there are just too many cases that may come before this court for me to comment now.
By the same token, the most controversial issue today, namely abortion, should be directly avoided. If asked, Judge Souter could argue that judicial precedent requires him to look at a law's validity based on how earlier jurists in other historical contexts may have interpreted similar laws. This is not only a legitimate mechanism of judicial interpretation but also one in which every Supreme Court justice (liberal and conservative) claims to engage. Their opinions are literally riddled with supportive references to earlier cases.
Judge Souter can deflect questions by asserting he will stand by the court's previous decisions so long as future cases reflect the same circumstances involved in earlier cases. Such a statement would mean to liberal senators, who hope to see no change in Roe v. Wade, a strong adherence to the Roe precedent. To conservative senators, who would like to see Roe overturned, the statement would mean that Roe will stand until the next case challenging it comes up because no two cases are ever exactly alike.
Thus no light at all is shed on Judge Souter's stand on Roe specifically or abortion generally.
But this need not mean that the Judiciary Committee hearings will be empty of meaning. On the contrary, they can lead to a great deal of knowledge about his judicial and constitutional philosophy which can then be interpolated into a reasonable guess on how he will vote on important questions in civil rights and civil liberties.
First, senators should probe Mr. Souter's position on how closely he believes judges should base their decisions on the Constitution's direct text: in other words, his position on original intent. Is it reasonable to assume that times have changed since the Constitution was drafted and since the Bill of Rights and other amendments were added to the document? Do judges today have an obligation to interpret the law, especially new laws, in ways which reflect our time and not the 18th or 19th centuries?
His response will tell us the degree to which he is likely to see the Constitution as a flexible or rigid document, one which, as Chief Justice John Marshall once put it in 1819, was designed "to be adapted to the various crises of human affairs.' This question also would show whether he viewed the document as expansive or closed in such areas as the right to privacy, given the fact that the document never once mentions the word "privacy.'
Second, senators should try to determine whether Mr. Souter believes that the Bill of Rights, the Constitution's first 10 amendments, apply to the states through the due-process clause of the 14th amendment.
The amendment says that "no state ... shall deprive a person of life, liberty or property without due process of law." It has meant that laws passed by state legislatures are as subject to the full review of the Supreme Court as laws passed by Congress. Judge Souter's response will tell us whether he believes that the rights and liberties in the first 10 amendments are in fact national rights which ought to reflect national policy, not subject to what individual states might like to do.
Third, Judge Souter ought to be asked whether he believes that the Supreme Court, in the words of Chief Justice William H. Rehnquist, is "the final arbiter" of constitutional issues in the United States, indeed whether the court's decisions are the supreme law of the land.
Progress in both civil rights and civil liberties over the past 35 years has been made largely because the federal government has broadly implemented the court's decisions. Without President Eisenhower's enforcement of the court's 1954 school-desegregation decision, few elementary and secondary schools in America would be as integrated today as they are. Judge Souter should tell the senators whether he believes this procedure should continue.
Finally, none of these questions will add up to very much unless the senators probe Mr. Souter about his philosophy of the role of civil rights and civil liberties in contemporary American society and culture.
This they can best accomplish from the perspective of the Bill of Rights without reference to any single case now pending before the court. They should ask him how he evaluates the progress this nation has made over the past 200 years in the realm of race relations, in free expression, religious liberty, rights of suspects and so on. They should inquire into how he assesses the growth in America of the freedoms and rights we most value, including what Justice Louis D. Brandeis called "the right to be let alone."
While these questions will never tell the senators specifically how Judge Souter will serve his term on the Supreme Court, his answers will inform them well enough not only about his judicial competence, but his constitutional philosophy. With this, the Judiciary Committee and then the entire Senate should be in the best position to make a final judgment on Judge Souter's suitability to serve on America's highest, most important judicial body.