Proclaiming their public-spiritedness and high principles, politicians in both parties are saying that Judge David H. Souter's confirmation process must not ''reopen the wounds'' of the Bork battle. There is bipartisan eagerness (for partisan purposes) to avoid asking Souter questions that might elicit answers that would be inconveniently interesting. In this atmosphere of high-mindedness there is universal disdain for ''litmus tests'' and ''ideologues.''
President Bush recoils in horror from the idea of a ''litmus test'' for a court nominee. Of course he became president running on a platform that declared Roe v. Wade an abomination and promised ''the appointment of judges at all levels of the judiciary'' opposed to that decision. But no litmus tests.
Democrats, whose impatience with ideology is famous (their last hero declared the 1988 presidential election to be ''about competence, not ideology'') say they sure hope Souter is not an ''ideologue,'' and Republicans say they hope so too. What is this universally (and therefore, of course, justly) reviled creature, this ideologue?
Not all conservatives are ideologues, but all ideologues are conservatives. (When was the last -- has there been a first? -- media reference to a ''liberal ideologue''?) Cynics say an ideologue is someone whose thinking has a rigor that is offensive to whomever is using ''ideologue'' as an epithet. Anyway, Souter isn't one. Everyone says so (although no one says how they know so).
Sen. Dennis DeConcini (D-Ariz.), one of the anti-Bork senators on the Judiciary Committee, does say that Souter ''needs to assure the committee that he is not an ideologue who has made up his mind on the issue of Roe v. Wade.'' Hmmm. Souter was a 33-year-old assistant attorney general of New Hampshire when that abortion decision was handed down in 1973. Since then he has been attorney general and a federal judge. Does DeConcini believe, or hope, that in the intervening 17 years Souter has not decided what he thinks about that case as constitutional law? If Souter has not decided, is he sufficiently interested in constitutional law to be a good citizen, let alone a good justice?
Today's Senate and president have different reasons for wanting the same thing -- a nominee whose views are not known and will not become much better known during the confirmation process.
Bush's preference for a human blank slate is related to his basic political style. In Chinese, ''crisis'' also means ''opportunity.'' For Bush, opportunity means crisis. An opportunity is an occasion for choice; choices define; defining himself is dangerous for Bush, whose strategy for pleasing almost everyone depends on fighting over nothing fundamental.
The mugging of Robert Bork institutionalized anti-intellectualism, at least when Republican presidents submit court nominations to a Democratic-controlled Senate. A nominee needs to be innocent of having published conservative thoughts.
But Democrats are of two minds. They value vagueness in a Republican president's nominee, but require specificity regarding one matter -- the ''privacy right,'' now celebrating its silver anniversary.
Senators are, as a species, risk-aversive. This means they want justices who will be vague before confirmed and activists after being confirmed.
A vote for a nominee whose views are not well known does not make a senator very vulnerable to the wrath of interest groups. But the rejection of Bork signified that a Senate majority is committed to maintaining the leftward ratchet in constitutional law. That majority is determined to preserve the tendencies of the court's activist majority during the past 35 (the Brennan) years.
So these senators must know a nominee's views concerning the line of decisions that began with the ruling in Griswold v. Connecticut, a 1965 decision that became a lush garden sprouting hybrid rights. In that case the court announced a new ''privacy right,'' which the court described as a ''penumbra, formed by emanations'' from real rights that the Constitution actually mentions.
''No other case'' writes Gary McDowell in The Public Interest, ''typifies more clearly both the direction of judicial power in America and Congress's institutional approval of that direction.'' Abortion is just one of innumerable privacy rights Griswold empowers the court to discover. This style of jurisprudence nationalizes many questions hitherto left to the states and absolves Congress from primary responsibility for wrestling with them. What once were policy questions to be decided by political institutions become questions of rights defined by courts.
Because Bush expresses a confidence in his nominee's conservatism that the public record does not confirm, and because the Senate has conflicting interests in both eliciting and avoiding information about the nominee's views, the confirmation process could be more interesting than anyone seems to want.