Who whom? - little justification for faith in the confirmation process for successor to U.S. Supreme Court Justice Harry Blackmun - Editorial

National Review, May 30, 1994

BY THE TIME these words are read, "we the people" may know who has been selected by President Clinton to succeed Harry Blackmun on the Supreme Court. Given the short lists now circulating, this person, in all likelihood, will be reasonably learned in the law and of respectable character. He or she will be described as a "moderate" or as an "economic conservative," because he or she once strayed from a normal progressive jurisprudence to interpret some statute in a manner favorable to a business interest. The nominee will then be subject to a hearing process at which senators will gather to celebrate his or her "firstness" (Arkansan, Hispanic, black woman, Secretary of the Interior), and will then confirm him or her to the High Court in short order.

The new Justice will then proceed for the rest of his or her life to decide matters which will determine the quality of life for the rest of us--matters such as whether crime rates will increase, the nature of private property rights, the role of religious values in American life, the relationships among the races, the extent to which local communities are allowed to govern their own affairs, whether areas of civil society remain beyond the control of government: in short, whether America is to be a great or a mediocre country. "We the people" will never be asked whether we want to transform ourselves to fit Richard Arnold's or Amalya Kearse's ideals more closely. Indeed, we will never know what those ideals are, because our representatives in the Senate will not think to ask.

It is one thing not to ask when the range of public decision-making is narrow and well circumscribed. It is another thing not to ask when, in the guise of giveing meaning to "due process" and "equal protection" and "general welfare," a public decision-maker can transform society without check. "We the people" are at least entitled to some sense of the fate that a prospective judge holds in store for us and our posterity. Instead, look for a confirmation process forgotten the day after it concludes.