MISSOURI COMMENTARY: THE EYE OF THE BEHOLDER

If you are particularly bored one day, you might want to read transcripts of Senate Judiciary Committee hearings on Supreme Court nominations. There are common aspects to virtually all confirmations. Each hearing typically includes some version of the following hypothetical exchange. (The Senator in question is of a conservative bent, reflecting the general conservative nature of the committee.)

Senator: Mr. Nominee, I am fed up with the Supreme Court in effect legislating on lots of issues. We in Congress write the laws. All you should have to do it to read the printed words of the Constitution and decide whether the legislation in question violates those printed words. You should show judicial restraint. Isn't that correct?

Nominee: Mr. Senator, the Supreme Court should never legislate. That is not the province of the judiciary. Our role is clearly defined by Article III and the constitutional guarantees provided by the document itself.

Senator: What about precedent? Will you be honor bound by precedent or will you freelance all over the landscape the way most of the justices seem to do?

Nominee: Honoring the established precedents of the past -- we call that "stare decisis" -- is obligatory. The law has to be predictable in order that it be relied upon. Sound precedents live for the ages.

In recent days, the Supreme Court has handed down important decisions which go to the heart of the exchange between the nominee and the senator.

Line-item veto. In a 7-2 vote, the court ruled that the challenge to the line-item veto was invalid because the plaintiffs (six members of congress) had "no legal standing to sue." Give the court an A on precedent. A word of caution that might make the Senator angry: Chief Justice William H. Rehnquist acknowledged that the day would come when the issue would be before the court in proper form.

Public school teachers in parochial schools. The Supreme Court, by a 5-4 vote, ruled that under certain circumstances public school teachers could be assigned to work inside parochial schools. In so ruling, the court overruled a specific precedent it adopted only 12 years ago.

On the question of precedent, this grade is an obvious F. the conservative Senator probably likes this outcome. He favors vouchers for private schools. He favors overruling "bad" precedents -- just so he can determine what is good or bad.

Assisted suicide. By a unanimous vote, the court held that states may pass legislation outlawing doctor-assisted suicide. The opinion gets an A on the basis of the Supreme Court not sticking its nose into state legislative affairs. Again, a word of caution: the court anticipates that another case may come in which the "great suffering" of an individual would be at issue. "Our opinion does not absolutely foreclose such a claim," said Chief Justice Rehnquist. The Senator will be mighty displeased if the court, even slightly, "legislates" assistance to a deeply pained person.

Religious Freedom Act. By a 6-3 vote, the Court ruled that Congress exceeded its authority when it required that governmental officials at all levels must bend all rules and create exceptions in favor of claims based on freedom of religion.

The senator says, "There they go again. The court is clearly legislating. We want to help God-fearing people and the court won't let us."

Internet pornography. By another unanimous vote, the Supreme Court declared unconstitutional a federal law making it a crime to send "indecent" material on line in a manner available to minors.

For the Senator, this is another F. What is the Supreme Court doing telling us we can't be against pornography? For the Senator, this is some more "legislating." For the court, it is a clear and compelling case of protecting free speech as guaranteed by the First Amendment.

The Brady Bill. By a 5-4 vote, the Supreme Court knocked out important provisions of the Brady gun law. "Hallelujah," said the Senator, "God bless those justices. They are protecting our handguns."

The bottom line is that the constitution, like beauty, is in the eye of the beholder.

~Tom Eagleton of St. Louis is a former U.S. senator from Missouri.