"I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor may well focus on the [abortion] issue before us today."
-- Justice Harry Blackmun With those words the author of Roe vs. Wade turned to the future and pointed to two paths leading to ideological worlds far apart. Justice Blackmun's separate opinion last week in Planned Parenthood vs. Casey intimated that the reign of Roe may depend more on constitutional politics than on constitutional law. It was as if he were preparing to pass the torch, not to black-robed justices but rather to gray-suited senators.
Four days before the elderly jurist gave the call, a sympathetic Senator Joseph R. Biden (D-Del.) spoke openly of the need for a bold new day in American constitutionalism. Said the Senate Judiciary Committee Chairman: "[F]uture confirmations must be conducted differently than the preceding ones."
In a wide-ranging Senate address, Mr. Biden complained of a Supreme Court nomination and confirmation process "racked by discord and bitterness," a process highly driven by "powerful and divisive" ideological forces. The Delaware Democrat made it clear that the confirmation business will not be conducted as usual should there be a Supreme Court vacancy any time during this presidential election year.
The stakes are high. This term alone some 15 important cases have been decided by a 5-4 margin. Highly controversial constitutional precedents -- ranging from school prayer to habeas corpus -- can be uprooted by the change of a single vote. Indeed, the very viability of the court's Roe vs. Wade decision, establishing the right to abortion, hangs in the same balance.
Meanwhile, the battle for court power is being waged between a bold phalanx of conservative jurists (Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas) and a more moderate but still conservative group (Justices Sandra Day O'Connor, David Souter and Anthony Kennedy). The balance of power in this clearly conservative tribunal may well depend on who is sitting after the next vacancy is filled.
Against this backdrop, Mr. Biden has thrown down the gauntlet: "Prospects for anything but conflagration with respect to a Supreme Court nomination this year are remote." At another point in his 24-page address, the Democratic senator was even more explicit: "Once the political season is under way, action on a Supreme Court nomination must be put off until after the election campaigning is over." (The Senate has not confirmed any nominee in a presidential election year since James Polk nominated Robert Grier in 1846. In the spring of 1968, Lyndon Johnson unsuccessfully attempted to elevate Abe Fortas to the office of chief justice of the United States.)
In a 1981 Supreme Court confirmation hearing, Mr. Biden stated, "as a member of the U.S. Senate, I am not choosing a nominee for the Court. That is the prerogative of the president . . . and we members of the U.S. Senate are simply reviewing the decision he has made."
But now the senator is calling on the president to yield some of his prerogative. "Either we must have a compromise in the selection of future justices," he stressed, "or I must oppose those who are the product of this ideological nominating process."
Predictably, Sen. Strom Thurmond (R.-S.C.) complained: "If followed, the chairman's suggestion would turn the current nomination process on its head."
Hoping to expand the Senate's traditional "advice and consent" role further still, Mr. Biden urged his colleagues not to shy away tTC from taking a position on a nominee before hearings are held. The confirmation hearings, he maintained, must be the "crowning jewel of the evaluation process," a process preceded by robust and rigorous examination of the president's nominee. In other words, the idea is to increase the importance of political scrutiny and thereby decrease the importance of the formal hearings.
Moreover, he demanded than Supreme Court nominees be far more blunt in their answers to questions about their "jurisprudential views." But simply, unless a nominee is very candid (and largely politically correct) in responses to tough questions (e.g., Roe vs. Wade), he or she cannot count on the chairman's help or vote.
Senator Biden claims to confront the process as it is rather than how it ought to be. And it is a process, he contends, very much steeped in "a political choice about values and philosophy."
Such realism, if it is that, has led us to precisely that place warned against by Judge Robert Bork, the 1987 Reagan nominee defeated in the Senate: "It will be easier in the future to be explicitly ideological in support or opposition to a nominee." In all likelihood, the point of gravity will probably fall somewhere between Mr. Biden's purported realism and Mr. Bork's purported idealism. But where, and why?
Commenting on the nomination and confirmation process, Harvard law professor Laurence Tribe has asked: "What would happen if the political branches became too aggressive in the assertion of their prerogatives?" Public ideological brawls is one consequence; interminable stalemate is another.
A good argument can be made for heeding the Biden proposal to make the selection process more democratic (and Democratic) by allowing the Senate to have some say in the appointment of life-tenured justices. Compromise could help the process and the nation, even if it comes at the expense of divesting the president of some measure of traditional prerogative.
But the compromise must be actual on both sides. Without that, the possibility for abuse is real, as evidenced by what a majority ++ of Congress did in 1869 when it literally told President Grant who he should nominate to the court.
Of course, compromise, however real, has its own downsides. After all, compromise of the Biden brand would probably never have produced the likes of the famed Justice Louis Brandeis, the progressive "people's lawyer" President Wilson nominated to the Court in 1916.
Mr. Biden's implied insistence on more direct questions to Supreme Court nominees followed by an explicit call for more direct answers is more problematic. For example, if a majority of the Senate Judiciary Committee stands prepared to approve only a "pro-Roe" nominee, then what will happen once such an "acceptable" answer is forthcoming? Will a betrayed president feel obligated to withdraw the nomination?
Then there is the issue of pre-judging cases. If a nominee swears under oath how he or she will come down on a given issue, how can anyone thereafter claim to be fair and open-minded when that issue is later presented to them? Must they disqualify themselves?
"Nothing endures but change," said Heraclitus. And change, in the Supreme Court and the Congress, seems inevitable as the next battle for the court shapes up. It is the change of one -- a change like Archimedes' lever that can move the earth.
Ronald Collins, editor of "Constitutional Government in America," will be a visiting associate professor of law at Geoge Washington University this fall.