SENATE IS OUT OF ORDER; ADVISE, CONSENT IDEA NEEDS WORK

Whatever the outcome of the Clarence Thomas nomination, one conclusion is already apparent: the Advise and Consent process of the U.S. Senate needs some considerable revamping. Advise and Consent is a vital part of the Constitutional scheme. The Founding Fathers were loath to grant to the President the unilateral, unquestioned power to put federal judges in place for life. There had to be some check on, some balance to executive flat and Advise and Consent was it.

It is a political process, as is every other relationship between the executive and legislative branches. Government is politics and its participants practice the art, high or low, of politics.

When the President makes a nomination to the Supreme Court, he is exercising his political power to appoint justices who share his political and philosophical belief. Even the sainted George Washington made clear that he wanted only like-minded Federalists on the court, not Jeffersonian types.

In Herbert Hoover's time, jurisprudential philosophy began to be a factor in some nominations. One of Hoover's choices went down because of the nominee's perceived anti-union bent. President Nixon had two violent and losing quasi-philosophical Supreme Court battles, Clement Haynsworth ("appearance of impropriety") and Harrold Carswell ("mediocre").

Reagan's 1987 nomination of Judge Robert Bork blew the lid off. Bork, a scholar with an uncontrollable urge to challenge in writing just about every major constitutional shibboleth, hung himself with his own law review articles, his contentious personality and his unkempt beard.

We have now entered the quiz show era. Nominees are repeatedly asked to expound on every identifiable constitutional issue likely to come before the Court and give a little hint about how they will rule: abortion, affirmative action/quotas, busing, prayer in public places, school vouchers, drug and AIDS testing, privacy, death penalty procedures, and so on. The quiz masters are members of the Senate Judiciary Committee, each of whom has his own game plan and is unconcerned whether his questions are repetitive or off on a tangent. The process is chaotic.

There is no turning back the clock. Advise and Consent cannot be placed back in the 19th century battle of silence or indifference. But it need not be a mess. The chairman and ranking minority member should each retain a constitutional scholar of preeminent rank. They would work with the committee members to identify major areas of substantive inquiry. The academic experts could then in cogent fashion propound questions to the nominee in such a manner as not to demand that he or she prejudge the issue. Once the scholars have concluded their organized inquiry, the senators would be obliged to refrain from asking questions that are a rehash of areas already covered.

Personal, character and fitness matters will arise as they did with the tragic eleventh hour Thomas/Hill confrontation which will be harmful to everyone involved, no matter how it is now resolved. Regular committee counsel on both sides should structure an orderly inquiry of such matters on behalf of committee members.

The Senate is out of order. Members know it, but despair of reform.