Litmus Tests

Friday, July 23, 1993; 12:00 AM

WHEN PRESIDENT Clinton nominated Judge Ruth Bader Ginsburg to the Supreme Court, it was possible to assume that the complexity of her views would make it hard for the senators confirming her to apply simple litmus tests to her thinking. But the hearings so far suggest that old habits die hard. Sen. Orrin Hatch wanted to know whether Judge Ginsburg considered the death penalty constitutional. Judge Ginsburg declined to say, having taken the position that while she would be glad to discuss her past writings, she did not want to get into an issue about which she has written nothing -- and on which she would have to decide many cases. Mr. Hatch was not pleased. "It appears that your willingness to discuss the established principles of constitutional law may depend somewhat on whether your answer might solicit a favorable response from the committee," he suggested.

We have been here before. Democrats could barely contain themselves in pointing out that when the court nominees of Republican presidents -- notably, Justices David Souter and Clarence Thomas -- were before the Judiciary Committee, the Republicans vigorously defended their right not to answer questions on cases that might come before them.

Even after Mr. Hatch accepted Judge Ginsburg's response, committee Chairman Joe Biden could not resist reminding the Utah Republican that during then-Judge Souter's confirmation hearings, Mr. Hatch had urged the nominee to "stand your ground" in refusing to give "answers which you clearly cannot provide." Back then, Mr. Hatch had warned against the Senate's imposing "indirect litmus tests on specific issues or cases" and said that excessive senatorial probing "politicizes the judging function."

It's nice that senators keep old transcripts at the ready to remind each other of how yesterday's positions of principle can get tossed by the wayside in the interests of today's political imperatives. Mr. Biden graciously acknowledged that he might not like to have all of his earlier statements read back to him.

Senators are clearly a long way from having any consistent set of principles about what they will -- or won't -- ask a potential Supreme Court nominee. Judge Ginsburg looks set to sail through the Senate, which is good. But the truce she has allowed the Senate Judiciary Committee to enjoy seems well short of a lasting peace.

© 1993 The Washington Post Company