COLUMN RIGHT : Independence Isn’t Bred at a Carnival : A Supreme Court nominee shouldn’t have to make promises or doctrinal commitments.

The Senate begins hearings today on the nomination of Judge David Souter for associate justice of the U.S. Supreme Court. It is my fervent hope, and I suspect the hope of most Americans, that these hearings will signal an end to the Roman-carnival atmosphere that has come to envelop such events.

The extraordinary polarization of the confirmation process during the late ‘80s reached its zenith--or more accurately, its nadir--during the Senate’s consideration of the nomination of Judge Robert Bork to replace Associate Justice Lewis F. Powell Jr. Interest groups opposing Bork engaged in a display of political muscle more extreme than anything I have seen even in elective politics.

The campaign was not limited to attempts to influence senators directly. “Studies” were issued describing Bork’s opinions as a lower-court judge and academic writings in unconscionably misleading terms, which were then widely disseminated by stories in the press. One group even hired a well-known movie actor to film a TV commercial in which the actor made outrageous pronouncements, the import of which was that if confirmed, Bork would threaten our very way of life.

In sum, as Sen. John C. Danforth (R-Mo.) stated in the debate before the final vote, “The man has been trashed in our house. Some of us helped generate the trashing. Others of us yielded to it.”

Political campaigns that inflame passions at the expense of reason and commitment to the public good, and in which lying and distortion play a key role, are always bad. But there are special and important reasons why a campaign of this sort involving a Supreme Court nominee is dangerous.

Our Constitution grants people certain rights against--and imposes certain limitations on--the powers of the state. But in order to prevent the Constitution from being a mere piece of parchment, the framers also made sure it provided for institutional arrangements that would serve as the guarantors of those rights and limitations. One of these vital institutions is an independent judiciary whose only obligation is to the law, not to political factions.

The principal constitutional protection for judicial independence is that federal judges, once appointed, serve life terms. But an important political protection is the reverence most Americans feel for the tradition of independence. That reverence has made it difficult for the other branches to use even those powers they clearly enjoy under the Constitution, such as the power to alter the number of justices on the Supreme Court, in order to make sure the court reaches a politically desired result.

The political campaign conducted against the Bork nomination was in its essence an attack on judicial independence. Its basic premise was that the Senate should use its advise-and-consent power not to assure the appointment of a qualified jurist to the court, but to guarantee that the appointee would reach results satisfactory to powerful interest groups. This, of course, is completely at odds with the judge’s oath to “administer justice without respect to person” and to “faithfully and impartially discharge and perform” judicial duties.

So far no such campaign has been mounted in conjunction with Souter’s nomination. The one danger sign is some of the claims made about the types of questions that senators should ask during the hearing. One argument is that in order to deserve confirmation, Souter must be willing to state in advance how he will decide cases involving abortion. Somewhat more subtly, others are insisting not that he make commitments on particular issues, but to particular constitutional doctrines, such as the right to privacy.

There is widespread agreement that Souter should not make any promises about particular cases. But, as Justice John Paul Stevens explained in a recent speech, the attempt to get commitments about doctrines is also wrong. It is at best futile and at worst very dangerous. Futile, because judges don’t rule on general doctrines--they decide cases. So that while a senator may think that a nominee who has embraced the right to privacy will surely protect the right to abortion, in fact any judge worth his or her salt will decide that question in light of the particular facts and arguments made in the particular case.

And the attempt to get commitments is dangerous, because we want our judges to be open-minded, to decide cases on the basis of the law, not on the basis of promises made in order to get confirmed. As Stevens said, “That’s not part of the independent judiciary that’s such an important part of our tradition and our history.” I hope the Senate will function as the guardian of that tradition and history during the course of the Souter hearings, rather than as its enemy.