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<text id=90TT2132>
<title>
Aug. 13, 1990: The Political Interest
</title>
<history>
TIME--The Weekly Newsmagazine--1990
Aug. 13, 1990 Iraq On The March
</history>
<article>
<source>Time Magazine</source>
<hdr>
NATION, Page 36
THE POLITICAL INTEREST
Asking the Wrong Questions
</hdr>
<body>
<p>By Michael Kramer
</p>
<p> Three weeks into the process and David Souter no longer
merits 30 seconds on the evening news. Having uncovered next
to nothing that seems capable of hampering Souter's Supreme
Court nomination, the media have turned their attention
elsewhere. The White House is ecstatic. George Bush's aides are
predicting a smooth confirmation.
</p>
<p> Their optimism is misplaced, but even if they are right, a
political time bomb is ticking. If a Justice Souter votes to
weaken or overturn Roe v. Wade before Bush faces re-election
in 1992, the President will be castigated for having smuggled
an abortion foe onto the court without a fair fight. Few will
believe that Bush didn't know all along that Souter would
affirm the Republican Party's call to gut the landmark
abortion-rights decision.
</p>
<p> For politicians, abortion is a character issue. Those
candidates who state their views unblinkingly are usually
conceded the courage of their convictions and rise or fall for
other reasons. Those who waffle or engage in subterfuge usually
lose. To avoid a backlash later on, the President should
welcome a thorough Senate grilling of Souter's abortion
position.
</p>
<p> Whatever Bush's final strategy, Souter himself appears
willing to join the battle straight-up. He apparently realizes
that regardless of where a nominee stands on an issue, a
candidate for the high court owes the nation an account of why
he stands there. Some people who are close to Souter say he has
already decided to discuss the right to privacy on which Roe
rests. Many conservatives (and some liberals, including the
late Justice Hugo Black) insist privacy is an invented liberty
without constitutional foundation. Let Souter second Black, if
that be his position, and then echo those liberal scholars like
Raoul Berger who say Roe was wrongly decided (although Berger,
at least, applauds the opinion's result). Then, if Souter is
conthe electorate will not feel cheated.
</p>
<p> Whether candor can win the day for Souter is another matter.
Some Senators believe he could deny a constitutional right to
privacy and still prevail, provided his reported respect for
precedent convinces the Senate he might leave Roe alone anyway.
If that is indeed the message Souter wishes to convey, he could
do worse than borrow from Robert Bork. "Many court results
decided incorrectly have been left in place because tearing
them up would create chaos," says Bork.
</p>
<p> Would such a stance wash? Perhaps, but "the stakes are much
higher this time," says Senator Arlen Specter, a Pennsylvania
Republican whose opposition doomed Bork's 1987 court
nomination. "Bork's vote to overturn Roe would not have made
the difference. Souter's would."
</p>
<p> Clearly, the current calm is illusory. Souter's confirmation
is no done deal. In one way or another, abortion will be the
litmus test that determines Souter's fate. In the end, he could
be rejected simply because he believes that legislators should
make the law, that the right to abortion is a matter best left
for the states to decide.
</p>
<p> The trouble with all this is that today's divisive
ideological issues are not always tomorrow's. Ten years from
now, with Bush long gone, who knows what the hot buttons will
be? What the Senate should explore is the creativity and
intellectual distinction of a nominee, not how he would vote
on a specific case next week. Unfortunately, those are the kind
of questions that may never be asked.
</p>
</body>
</article>
</text>