COLUMN LEFT : Who Let These Guys on the Court? : Senate Democrats’ deference to presidential nominees ensured the attack on abortion.

Who is responsible for the Supreme Court’s dismaying decision in Rust vs. Sullivan? That decision last week upheld federal regulations forbidding clinics that receive federal family-planning funds from even mentioning abortion to their patients. In other words, the government can tell your physician, if he is in a publicly funded program, not just how to treat you but what to say to you, even about so fundamentally a personal choice as bearing a child.

The court’s opinion gave extreme deference to the executive branch’s 1988 regulations interpreting a 1970 congressional act for funding family-planning programs. Such deference enhances the executive’s power to use congressional enactments to make new rules. This is a seductive invitation to a President who confronts a Congress not controlled by his party, as is now the case.

With only minor qualifying language, the court’s opinion also decisively affirmed the government’s power to use its purse to buy ideological messengers, despite the First Amendment interests of the patient in the doctor’s professional expertise.

Who is responsible for this decision? The Reagan Administration imposed these restrictions on the speech of doctors in 1988, and the Bush Administration chose to defend the Reagan regulations before the Supreme Court. But there was no reason to expect anything different from these Presidents. As for the five men in the court’s majority in Rust, three were nominated and a fourth was elevated to chief justice by Reagan and Bush. Although in its specifics it is mistaken, the decision seems largely consistent with the justices’ and the Presidents’ overall framework of beliefs about the Constitution and the relative powers and proper roles of the executive, legislative and judicial branches.

Accordingly, substantial responsibility for this decision rests with the Democrats in the Senate, for it is they who have not acted according to their constitutional beliefs. It is they who have been insufficiently vigorous when giving their consent to Reagan’s and Bush’s judicial nominees (aside from Robert Bork).

The Constitution gives no preference to the President’s judicial nominees. Indeed, it provides not only for the Senate’s consent but also its advice. This suggests that the Senate can establish standards prior to the nomination as well as review the nominee. The arguments for deference to a President’s executive branch choices are untenable with respect to appointment to the third branch. The interest of the legislative branch in the appropriate interpretation of the laws is at least equal to that of the executive. Indeed, because the court adjudicates separation-of-powers disputes between the two branches, Congress has an equal institutional interest in the appointment process.

Yet the Senate routinely acts as if a President’s judicial nomination has a constitutionally warranted momentum of its own, so that only a substantial defect in competence, character or beliefs may justify denying senatorial consent. President Bush chose David Souter to capitalize on this phenomenon; he found a candidate so unencumbered, one who would cause so little friction, that he would not slow his own momentum.

There is no justification for this, no principled reason that a nomination arrives in the Senate with any presumption in its favor at all. Rather, a nominee is before the Senate so that each member can judge, in his or her own view, whether that nominee is the right person for the court.

Of course, because he makes the first move, a President enjoys a practical advantage in the process. He can threaten to nominate an even less-palatable nominee if the first, or second, or third is rejected. Moreover, a President can act on any and all reasons, including ideology, without admitting to any ground of decision other than the nominee’s competence. The Reagan appointment process made this perfectly clear. But it cannot be that the President privately gets to take into account a nominee’s judicial beliefs while the Senate publicly does not. While its task is more difficult because it must engage in formal deliberations, the Senate should have the institutional strength to reject nominations freely. The Senate’s insufficient fortitude has given the President an entirely unwarranted advantage.

Congress can now try to repair the court’s decision in Rust vs. Sullivan by amending the family-planning legislation to eliminate these new restrictions. But the failure of the Senate Democrats to exercise the responsibility that was theirs over the past several years will have consequences for a long time to come.