The rhetorical lines were drawn as soon as Supreme Court Justice William Brennan announced his retirement: President Bush would either appoint a "moderate conservative" to fill the vacancy. Or he would choose an "ideologue" and incite a Bork-type battle in the Senate.
"We don't want to have another rigid ideologue appointed," declared Senator Paul Simon, an influential Democrat on the Judiciary Committee. The "another" might refer to Robert Bork or, just as likely, to Justice Antonin Scalia. (Brennan, too, was a rigid ideologue but not, one suspects, the sort Simon finds distasteful.)
Bush dodged the question by picking Souter the Obscure. Nobody except David Souter knows for sure whether he's an "ideologue" or a "moderate." He's a cipher. The Senate hearings that begin September 13 may give us a chance to decode Souter, but only if the senators ask the right questions—not about policy, but about philosophy.
What the Court desperately needs are justices who rule according to neutral principles, not according to whose ox is being gored. Unfortunately, that implies a consistent philosophy and a commitment to process rather than results. Neither notion is well understood by the dealmakers on Capitol Hill or by the members of the Washington press corps.
Consider Scalia. His commitment to process over results makes him the most hated of ideologues. A good decision, he acknowledges, may produce a bad result, and vice versa. But preservation of both democracy and the rule of law requires that judges subordinate their policy views to the dictates of law and precedent.
So, too, does protection of individual liberties. Take Scalia's vote (and Anthony Kennedy's) against flag-burning statutes. Or consider the Supreme Court's recent decision regarding the rights of defendants in child-molestation cases. The Court ruled 5-4 in favor of a politically popular law that allows children to testify against alleged abusers on closed-circuit television rather than actually face them in the courtroom.
In a hairsplitting opinion for the majority, Sandra Day O'Connor declared the law constitutional. "A state's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers," she wrote. This ruling is particularly troubling given the murkiness of the evidence in many child abuse cases and the ease with which such damning accusations may be hurled, or elicited by over-zealous child psychologists.
In a typically "ideological" dissent, Scalia reminded the Court that the Sixth Amendment does not make an exception for child abuse: "For good or bad, the Sixth Amendment requires confrontation, and we are not at liberty to ignore it." Scalia's dissent in favor of civil liberties was joined by Brennan, John Paul Stevens, and Thurgood Marshall.
The same sort of "rigid ideology" surfaced recently in a decision by the D.C. Circuit Court of Appeals. Three conservative judges—Douglas Ginsburg, Laurence Silberman, and Clarence Thomas—ruled that Louis Farrakhan and George Stallings couldn't be excluded from Marion Barry's trial simply because the judge thought their presence might sway jurors. The Constitution does not make exceptions for black militants. Less "rigid" judges could undoubtedly have concocted a creative case for excluding the discomfiting pair, just as O'Connor found an exception for child abuse.
Simon and other ostensible liberals praise the "moderation" of such High Court "swing votes" as O'Connor, Stevens, and Byron White. But the frequent flip-flops of these justices on such charged issues as affirmative action illustrate the problems raised by eschewing consistency. Rather than settling issues, ad hoc jurisprudence serves only to make the law unpredictable.
The importance of judging potential judges by their commitment to neutral principles is also striking in historical perspective. If he is confirmed, Souter will be 51 when he takes his seat. He could easily serve until 2020. By then, abortion may be technologically obsolete. Judges may be called upon to determine whether the 14th Amendment's protection for "persons" applies to self-aware machines. The policy questions will be vastly different from today's. But the issues of process—of how judges should interpret the law and of the constitutionally defined limits of government power—will remain.
In a cynical age, the Supreme Court is the one institution in Washington that has maintained the mystique of being above dealmaking and petty politics. It listens to and considers arguments. It must give reasons for its judgments.
This mystique, as naive as it may sometimes seem, is crucial to maintaining public respect for the Court as something other than an unaccountable legislative branch. To exclude men and women of principle from the Court, in a misbegotten attempt at "balance," is to declare that it has become a collection of tyrants, appointed for life.
This article originally appeared in print under the headline "Judging Judges".