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The case for grilling Roberts


WITH JUDGE John G. Roberts Jr.'s nomination to the Supreme Court up for consideration, much will be said in the coming weeks about the process of appointing a justice. You can't believe half of what they say.

One thing you should definitely not believe is the claim, already voiced by some of President Bush's supporters, that once a president picks a nominee, senators "politicize" the appointment process when they ask hard questions about the nominee's views on controversial issues such as abortion and gay rights.

By "politicized," the complainers usually mean that the Senate decides whether to confirm nominees based on their political views rather than their professional qualifications and integrity. The result of this "politicization," you will hear, is often a political food fight that degrades everyone.

The first reason to doubt this claim is that professional qualifications and integrity do matter to senators. Any nominee lacking these measures would receive extraordinary scrutiny from senators not of the president's party, and maybe some of the president's own party members. Such a nominee, therefore, would stand a good chance of rejection by the Senate.

Two examples are President Richard M. Nixon's unsuccessful nominations of Clement F. Haynsworth Jr. and G. Harrold Carswell, whom the Senate rejected partly for lacking professional integrity and competence, respectively.

There is a second, more important, reason to embrace a "political" appointment process - one in which nominees are judged largely on the basis of their views on divisive constitutional issues. Such a process is normal, natural and entirely consistent with the Constitution.

Since the era of the Warren court in the 1950s and 1960s, constitutional consensus has broken down over issues such as abortion, gay rights, the separation of church and state and the balance of power between the federal government and the states. Presidents understandably try to nominate Supreme Court justices who agree with them on these issues. It's perfectly all right.

But some people who would allow presidents to pick nominees on the basis of political ideology say that senators shouldn't ask about nominees' beliefs when deciding whether to confirm or reject their nominations. They'll tell you that senators who use litmus tests politicize the process, harm the good name of highly qualified nominees and try to get nominees to make improper promises to vote a certain way in future cases. These arguments are obviously self-serving when they come, as they always do, from supporters of the president of the moment (whether Democrat or Republican).

But the best reason for rejecting these claims is that our constitutional system is based on checks and balances. And when presidents try to load the Supreme Court with people who share their political philosophy, senators cannot check and balance the president unless they also consider nominees' views.

If senators do not consider nominees' political views when deciding to confirm or reject them, only 10 people - the president and the Supreme Court justices - can have a real say in the debate over what the Constitution means.

There are drawbacks to a political confirmation process. A struggle over Sandra Day O'Connor's successor could turn ugly and further alienate a disaffected public. Public confidence in the Supreme Court and Congress could fall as a result. These are the risks we run in a democracy.

But past battles over nominees' ideologies, as distinct from other issues, did not damage the court or Congress, even during the heated clashes over nominees Robert H. Bork in 1987 and Clarence Thomas in 1991. And in poll after poll, most Americans say their elected representatives should consider a nominee's views on contentious issues and not just his or her professional qualifications and integrity.

Most Americans seem to prefer the risk of an unpleasant confirmation fight over the alternative of allowing just 10 people to decide what the Constitution means. Two cheers for democracy.

Michael Comiskey, an associate professor of political science at Penn State University, is the author of Seeking Justices: The Judging of Supreme Court Nominees.

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