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It has been a week since Supreme Court Justice Sandra Day O'Connor announced her retirement. President Bush has not nominated a successor yet, but that hasn't stopped senators from getting ready for a fight. As NPR's David Welna reports, there are sharp differences as to what kinds of questions the nominee should be asked.
DAVID WELNA reporting:
There are two schools of thought about what a Supreme Court nominee should be asked during confirmation hearings. One school, aligned with President Bush, says questions should be limited to ascertaining a nominee's qualifications and his or her judicial temperament. Texas Republican Senator John Cornyn, who sits on the Judiciary Committee, says personal politics should have no role in the confirmation process.
Senator JOHN CORNYN (Republican, Texas): Whoever the nominee is, the Senate should focus our attention on judicial qualifications, not on personal political beliefs.
WELNA: But the other school of thought says anyone who wants a lifetime appointment to the nation's highest court should be thoroughly quizzed by the Judiciary panel. Arlen Specter is the Republican who chairs that committee, who will, in a sense, referee the questioning. He says senators should have what he calls full latitude.
Senator ARLEN SPECTER (Republican, Pennsylvania; Judiciary Committee Chair): Senator can ask any question they want, but the nominee doesn't have to respond. If the nominee chooses not to respond, I said after the confirmation several confirmations back that nominees tend to answer just as many questions as they have to in order to be confirmed.
WELNA: Ruth Bader Ginsburg may have made such a calculation when she went before the Judiciary Committee 12 years ago as President Clinton's nominee to the Supreme Court. The now Supreme Court justice balked when Utah Republican Orrin Hatch pressed her for her views on the death penalty.
Ms. RUTH BADER GINSBURG (Supreme Court Nominee): I can tell you that the Fifth Amendment reads, `No person shall be held to answer for a capital or otherwise infamous crime unless,' and the rest, but I am not going to say to this committee that I will reject a position out of hand in a case in a situation where I have never expressed an opinion. I have never had a death penalty case. I have never written about it. I have never spoken about it in the classroom. I can tell you that my...
Unidentified Senator: Have you ever discussed it?
Ms. BADER GINSBURG: I have only one passion, and it is to be a good judge.
WELNA: Patrick Leahy, who's the Judiciary Committee's ranking Democrat, points out that nominees are likely to demur if asked how they'd rule on cases that might come before the court. Speaking from his farmhouse in Vermont, Leahy says looking at past court decisions, such as the landmark Roe vs. Wade ruling legalizing abortion, can help identify a nominee's views.
Senator PATRICK LEAHY (Democrat, Vermont): I think you'd ask them how they feel about settled law. Sometimes the answers you get don't necessarily mean anything. Clarence Thomas, in answer to a question of mine, stated under oath that he had never discussed Roe vs. Wade.
Mr. CLARENCE THOMAS (Supreme Court Nominee): I don't recollect commenting one way or the other on.
Sen. LEAHY: Well, was it properly decided or not?
Mr. THOMAS: Senator, I think that that's just where I have to say what I've said before, that to comment on the holding in that case would compromise my ability to rule...
Sen. LEAHY: May I ask you this: Have you made any decision in your own mind whether you feel Roe vs. Wade was properly decided on, without stating what that decision is?
Mr. THOMAS: I have not made, Senator, a decision one way or the other with respect to that important decision.
WELNA: That exchange took place 14 years ago at Thomas' contentious confirmation hearing. Conservatives maintain such a line of questioning is out of bounds for the next Supreme Court nominee, but Judiciary Chairman Specter, who backs the right to legal abortion, thinks such questions are legitimate.
Sen. SPECTER: Would reproductive rights be a focal point of a hearing? I think they would be, naturally, because that's been very, very much on the minds of so many Americans.
WELNA: One possible Supreme Court nominee, Attorney General Alberto Gonzales, has already been asked his views on Roe vs. Wade while appearing before the Judiciary Committee. During his confirmation hearing in January to be attorney general, Gonzales stated that the Supreme Court recognized a right of privacy, and that the court, quote, "held that that right of privacy includes a woman's right to choose to have an abortion."
Mr. ALBERTO GONZALES (US Attorney General): My judgment is that the court has had an opportunity, ample opportunities, to look at this issue. It has declined to do so. As far as I'm concerned, it is the law of the land, and I will enforce it.
WELNA: That kind of forthright answer given by a man who'd soon be the nation's top law enforcement official is what those in the everything's-game school of questioning hope to elicit from a Supreme Court nominee. It's also what those in the no-personal-views school of questioning hope they won't be hearing. David Welna, NPR News, the Capitol. Transcript provided by NPR, Copyright NPR.
