Public Should Know Views Of Supreme Court Candidates, Opinion Piece Says

The next Supreme Court justice to replace retiring Justice David Souter, as well as the confirmation process, "should represent a clear break with the policies" of former President George W. Bush, Kate Michelman, NARAL Pro-Choice America president from 1985 to 2004, writes in a Philadelphia Inquirer opinion piece. She adds, "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," including a "commitment to the constitutional rights to privacy and equality that found crucial meaning and historic expression for women in Roe v. Wade."

Obama has indicated that he believes in these rights, and it is likely that he will choose a nominee who also does; however, the U.S. public might never know what the nominee believes because of "the conspiracy of silence that governs judicial nominations," according to Michelman. She writes that the "generally accepted 'rules'" of judicial nominations -- in which presidents "promise not to apply 'litmus tests,'" and nominees pledge to be silent on cases and precedents -- should change, adding, "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."

According to Michelman, the "reality" is that presidents "do consider the concrete judicial views of potential nominees. Bush did. Obama will. They would be irresponsible if they did not." Supreme Court nominees would not be qualified to be on the court if they did not have "opinions on issues they claim they are compelled not to discuss." While this is well-known, "confirmation debates are conducted in a theater of shadows," she continues, adding that the "American people are denied forthright knowledge about an irreversible appointment to an institution whose impact on their lives is immense." Although justices should be neutral toward cases and the people involved, Americans are "entitled to know what he or she thinks" about the Constitution, which they take an oath to "preserve, protect and defend." She continues that Obama "is correct that jurists must also understand the effect of their decisions on the lives of real people," an effect that "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."

Michelman writes that Supreme Court nominees "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." She concludes, "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" (Michelman, Philadelphia Inquirer, 5/11).


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