This Matter of a Litmus Test : * How Far Should the Brain-Picking Go?

The issues raised by the debate over how far senators ought to go in probing the views of Judge David H. Souter, President Bush’s first nonimee to the U.S. Supreme Court, are especially knotty.

They are difficult because answering them requires a descent from the high ground of legal right and obligation onto the gray and uncertain terrain where history, custom and conscience meet--and often collide. For a dynamic, pluralistic nation like the United States, this is treacherous territory. Indeed, the uncertainty of the footing on this informal ground is one of the reasons Americans take greater recourse to law than any other people on earth.

The situation’s complexity is further increased by the fact that the question likely to be uppermost in the senators’ minds is where Souter stands on abortion, which Pennsylvania’s Arlen Specter has called “the most divisive issue since slavery.”

Do Senators, whether pro-choice or anti-abortion, have a right to impose a so-called litmus on Supreme Court nominees? Constitutionally, the answer is yes. Article II simply states that nominations are subject to the Senate’s “advice and consent.” The document is silent, however, on the criteria according to which that process ought to proceed.

Historically, in fact, legislative litmus tests have been the rule. George Washington’s attempt to make John Rutledge chief justice was defeated because he had criticized the Jay Treaty.

During the 19th Century, senatorial activism in this area was a constant of national life. More than one in four of all the high court nominations submitted were rejected.

In our own era, the situation has become somewhat different. Gradually, the notion has grown that nominees ought not to be targets of an inquisition into their thoughts on specific legal questions. In part, this reflects a recognition that such interrogation is implicitly legislative extortion: Promise to decide cases the way I want them decided or I won’t vote to confirm you. The idea that judges who resist such a quid pro quo are better judges has grown hand in hand with an increased public faith in the federal judiciary as the ultimate guarantor of individual rights.

Serious-minded people, however, still may insist that Souter was chosen precisely because his views on abortion are obscure, and that on issues of this magnitude the American people have a right not to be surprised. They may further recall that, as nominees, Justices Antonin Scalia and Anthony Kennedy both refused to answer questions about abortion, only to emerge as strong antagonists of Roe vs. Wade.

These are important considerations. But so, too, is this nation’s hard-won appreciation of an independent judiciary in which judges decide cases on their merits and according to the dictates of law and conscience. Any litmus test is incompatible with such independence.