The Political Interest: Asking the Wrong Questions

Three weeks into the process and David Souter no longer merits 30 seconds on the evening news. Having uncovered next to nothing that seems capable of hampering Souter’s Supreme Court nomination, the media have turned their attention elsewhere. The White House is ecstatic. George Bush’s aides are predicting a smooth confirmation.

Their optimism is misplaced, but even if they are right, a political time + bomb is ticking. If a Justice Souter votes to weaken or overturn Roe v. Wade before Bush faces re-election in 1992, the President will be castigated for having smuggled an abortion foe onto the court without a fair fight. Few will believe that Bush didn’t know all along that Souter would affirm the Republican Party’s call to gut the landmark abortion-rights decision.

For politicians, abortion is a character issue. Those candidates who state their views unblinkingly are usually conceded the courage of their convictions and rise or fall for other reasons. Those who waffle or engage in subterfuge usually lose. To avoid a backlash later on, the President should welcome a thorough Senate grilling of Souter’s abortion position.

Whatever Bush’s final strategy, Souter himself appears willing to join the battle straight-up. He apparently realizes that regardless of where a nominee stands on an issue, a candidate for the high court owes the nation an account of why he stands there. Some people who are close to Souter say he has already decided to discuss the right to privacy on which Roe rests. Many conservatives (and some liberals, including the late Justice Hugo Black) insist privacy is an invented liberty without constitutional foundation. Let Souter second Black, if that be his position, and then echo those liberal scholars like Raoul Berger who say Roe was wrongly decided (although Berger, at least, applauds the opinion’s result). Then, if Souter is confirmed, the electorate will not feel cheated.

Whether candor can win the day for Souter is another matter. Some Senators believe he could deny a constitutional right to privacy and still prevail, provided his reported respect for precedent convinces the Senate he might leave Roe alone anyway. If that is indeed the message Souter wishes to convey, he could do worse than borrow from Robert Bork. “Many court results decided incorrectly have been left in place because tearing them up would create chaos,” says Bork.

Would such a stance wash? Perhaps, but “the stakes are much higher this time,” says Senator Arlen Specter, a Pennsylvania Republican whose opposition doomed Bork’s 1987 court nomination. “Bork’s vote to overturn Roe would not have made the difference. Souter’s would.”

Clearly, the current calm is illusory. Souter’s confirmation is no done deal. In one way or another, abortion will be the litmus test that determines Souter’s fate. In the end, he could be rejected simply because he believes ; that legislators should make the law, that the right to abortion is a matter best left for the states to decide.

The trouble with all this is that today’s divisive ideological issues are not always tomorrow’s. Ten years from now, with Bush long gone, who knows what the hot buttons will be? What the Senate should explore is the creativity and intellectual distinction of a nominee, not how he would vote on a specific case next week. Unfortunately, those are the kind of questions that may never be asked.