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'Tale of Two Justices'

August 17, 1986

Your editorial (Aug. 13), "Tale of Two Justices," seriously misunderstands the role of the U.S. Senate in the confirmation of nominees to the U.S. Supreme Court.

According to The Times, the Senate should confirm a presidential nominee so long as the nominee is competent and holds views that do not lie beyond the bounds of the general course of American law. Beyond this, the nominee's political ideology should be set aside. The Times states that this is the "custom." The Times is wrong for at least two reasons.

First, historically the Senate has played an active role in rejecting presidential nominations to the Supreme Court. The rejections have usually been based on politics or ideology and rarely upon competence.

This custom began in 1794 with the rejection of George Washington's nomination of John Rutledge. It was pursued consistently and sometimes vigorously throughout the 19th Century and well into the 20th. The idea that the Senate ought to defer to the President is more a product of the post-1950s Imperial Presidency than it is of long-term history or custom.

Next, considering the role the Supreme Court plays in interpreting and applying the Constitution, the nominee's political ideology will have a far greater impact upon the nation than any other qualifying factor. A court dominated by the Rehnquistian view would rewrite the Constitution and Bill of Rights as we now know it and in ways that most Americans would find disheartening. In many respects, the court is the Constitution.

President Reagan surely recognizes the importance of ideology in his selection of judicial nominees. His stated goal is to reconstitute the court in his ideological image. Why should the Senate not take these ideological factors into account? It is more than bizarre to suggest, as The Times implicitly does, that the President may impose his ideology upon the Constitution, but that the Senate may not respond to those efforts.

The Senate, perhaps even more than the President, has the responsibility to ensure that the Supreme Court remains a guardian of our fundamental liberties. A nominee who is insensitive to those liberties need not be rubber-stamped merely because he or she can somehow be characterized as intelligent or competent. Nor must the Senate sit idly by while the judiciary is transformed into an ideological camp of either the right or left.

If the President were not bent on packing the judiciary with his ideological bedfellows, I would agree with The Times that a degree of deference would be warranted. But when a President announces an ideological agenda for the Supreme Court and for the judiciary in general, I think it the height of foolishness to defer to him when he acts upon that agenda to the detriment of our Constitution and Bill of Rights.

One more Reagan appointment to the Supreme Court could radically alter our constitutional history. The Times editorial plays into this sad process.


Professor of

Constitutional Law

Loyola Law School

Los Angeles

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