The Public's Right to Know

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.

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 justice's resume.

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.