Six months ago, the American people decisively
repudiated the eight-year presidency of George W. Bush. So a new Supreme
Court justice – and the process by which he or she is confirmed – should
represent a clear break with the policies of those years.
The clearest sign that President Obama
is committed to the demand for change would be the nomination of a justice
who is committed to forthrightly and unapologetically defending America’s
fundamental liberties. This must include a commitment to the constitutional
rights to privacy and equality that found crucial meaning and historic
expression for women in Roe v. Wade.
By all indications, the president believes
in these rights himself and is highly likely to choose a jurist who
agrees. But we may never know whether the nominee is committed to these
rights because of the conspiracy of silence that governs judicial nominations.
The generally accepted "rules"
of judicial nominations go something like this: Presidents must promise
not to apply "litmus tests" that evaluate potential nominees
according to their positions on specific constitutional issues. Nominees
must not discuss specific cases, even long-standing precedents. And
senators are to consider nominees’ qualifications but never their views.
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This, too, must change. We should no
more confirm a nominee who refuses to discuss these fundamental rights
than one who claims to have no position on the rights to free speech,
freedom of religion, or jury trials.
There are noble ideals behind these confirmation
"rules." But they are a farce, and every participant in the
process knows it. Only the public is excluded from the game.
Here’s the reality. Presidents do consider
the concrete judicial views of potential nominees. Bush did. Obama will.
They would be irresponsible if they did not.
Any nominee for the court does have opinions
on the issues they claim they are compelled not to discuss. They would
not be qualified to be on the court if they did not have those views.
(Perhaps the best illustration of the lengths to which nominees will
go not to discuss critical issues – and the best evidence that this
process must change – was Clarence Thomas’ assertion that he had no
preconceived view of Roe.)
Senators certainly are aware of how justices
are likely to decide critical cases, and they certainly should take
these impressions into consideration before giving anyone a lifetime
appointment to our highest court. The Senate’s power to advise and consent
to these nominations obviously includes more than confirming a potential
All these facts are known, yet confirmation
debates are conducted in a theater of shadows. Participants do not give
voice to opinions it is patently obvious they must have. The limited
discussion that does occur is cloaked in inscrutable codes. And the
American people are denied forthright knowledge about an irreversible
appointment to an institution whose impact on their lives is immense.
Much has been made of the fact that although
Justice David H. Souter was opposed by many pro-choice groups, including
the one I led, he has been a staunch defender of the freedom to choose.
His integrity and independence will be greatly missed. But it was not
Souter’s substantive views that drew our opposition. It was the impossibility
of knowing them. The health, lives, and freedom of millions of American
women were and are too important to risk on a gamble.
Judges, like all thoughtful people, should
be open to the possibility of argument changing their minds. They should
certainly be neutral toward the parties or circumstances in any given
case. But before a new justice places his or her hand on a Bible and
swears to "preserve, protect, and defend the Constitution of the
United States," the American people are entitled to know what he
or she thinks that document means.
I stand with a clear and persistent majority
of Americans, as well as decades of legal precedent, in believing the
Constitution protects a zone of privacy into which the government is
forbidden to intrude. The right to privacy is inextricably linked with
women’s right to equality.
Obama is correct that jurists must also
understand the effect of their decisions on the lives of real people.
That impact weighs especially heavily on the women whom the court has
required to clear higher and increasingly intrusive hurdles to act on
their freedom to choose.
Thoughtful people may disagree about
whether a woman has a constitutional right to choose. That is precisely
why Americans on both sides of the divide should be able to participate
in an informed rather than artificial debate.
Any jurist qualified to sit on the Supreme
Court has contemplated these issues, as well as the wide range of others
he or she will be called upon to judge. That nominee will seek appointment
to a court from which he or she could turn those thoughts into constitutional
precedent the nation will be compelled to accept, without appeal, for
decades or longer.
The only question in this nomination
process will be whether the country will be allowed to know what the
nominee’s thoughts are. That is one basic right everyone should be able
to agree we have.
This post first appeared in the Philadephia Inquirer.