The irony of Judge David Souter's performance before the Senate Judiciary Committee is very nearly unbearable, so bittersweet is it. Said Judge Souter, the great Hope of Strict Construction, about retired Justice William Brennan, who for 33 years treated the Constitution as his personal invention: "{Justice Brennan} is one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have."

That was another way of saying: "You're not going to make a Judge Bork out of me, Senator. I will grovel with the best of them."

Who was the best groveler of recent times before the Senate Judiciary Committee? None other than William J. Brennan.

The whole scene was caught masterfully by columnist Murray Kempton, whose column on Feb. 27, 1957, began, "Joe McCarthy destroyed the character of Supreme Court Justice William J. Brennan yesterday, or anyway presided at its suicide." (Brennan was a recess appointment in October 1956, and the Senate Judiciary Committee was still involved in confirmation hearings in 1957.)

You see, Joe McCarthy was the Kennedy-Biden equivalent back in those days, and people who wanted to be confirmed were as careful in treating him as Judge Souter is in treating Roe v. Wade.

What happened is that McCarthy, pretty much moribund in 1957 but still a latent force Judge Brennan did not want to contend with, said he wanted to ask the judge a question or two about the investigation of communists and subversives. Did Judge Brennan approve of congressional investigations?

Brennan: "Not only do I approve, but I can think of no more vital function than searching out subversives."

Did Judge Brennan think that communism was a conspiracy?

That was a period during which the constitutionality of the Smith Act sat before the court, allowing Brennan to say that, alas, he couldn't pass judgment on that question. But then McCarthy struck. He read out loud a paragraph from a speech given by Brennan in February 1954, at the height of the commotion caused by Sen. McCarthy's investigations at Ft. Monmouth, with Gen. Ralph Zwicker the chief target. Listen now to the kind of thing that served the liberal community as calisthenics during the McCarthy years:

"The abuses {of congressional investigating committees} took on modern dress, it is true -- not the rack and the screw -- but the distorted view of the happenings at secret hearings released to the press, the shouted epithet at the hapless and helpless witness. . . . Intentionally conceived or merely misguided, the result has been to engender hate and fear by one citizen or another, to have us distrust ourselves and our institutions, to have us become a nation afraid, to borrow from Elmer Davis. . . . But there are hopeful signs in recent events that we have set things aright and have become ashamed at our toleration of the barbarism which marked the procedures at some of these hearings."

Translation: The censure of Sen. McCarthy three months earlier, and the Army-McCarthy hearings now scheduled, are delivering the United States from the horrors of McCarthyism.

"I'd like to know," said McCarthy, "where we have been barbaric?"

"This," Brennan answered, "was a little orator's license. These were {mere} illustrations." They had, he indicated, no reference to any person, living or dead. As to the exposure of communists, he was very much for it, "very, very much for it."

Oh? Well, said McCarthy, "what were the hopeful signs of change you saw?" Brennan said he couldn't remember what it was he had in mind when he made that speech.

Kempton closed his column: "Senator Eastland said that they were gonna take a recess to examine other witnesses against Mr. Justice Brennan just in case any one of them might have two heads. Eastland pulled against the dying fall of his cigar; McCarthy and Brennan fussed with their glasses. We know something now about Justice Brennan that we would not have known had it not been for Joe McCarthy. This is not a man to stand the course even against the dead and the defeated: The great -- even the good -- judges are brave ones; this is a man who takes to his knees before ghosts."

"Indeed," summarized Linda Greenhouse of The New York Times after Judge Souter's appearance Sept. 14, "it was the conservative Republicans on the committee who appeared most taken aback by the testimony of President Bush's first Supreme Court nominee." Indeed. Conservatives can only hope that, like his hero Justice Brennan, Judge Souter was merely being cowardly in speaking as he did, athwart his private resolve to do something about the body-snatching of the Constitution that went on under the Warren Court.