THE HEARINGS on Judge Sandra Day O'Connor's nomination to the Supreme Court ended very much as they had begun. Most members of the Judiciary Committee--and apparently most members of the Senate--were solidly in favor of confirmation when the three days of hearings opened, and nothing happened in those three days to change anyone's mind. The anti-abortion campaign tried to turn the hearings into a test of everybody's convictions on the question of abortion, but, fortunately, it failed.
The irony of that attempt cannot have escaped many people in the hearing room. The militant right has complained bitterly for years about judicial interference in social policy, and the alleged hunger of judges to legislate. But in this instance, the anti-abortion campaign was positively demanding that the Supreme Court legislate on the one question that interests it most.
Judge O'Connor told the senators that, in her view, the proper job of a Supreme Court justice is "interpreting and applying the law, not making it." Most of the senators warmly approved. But whether Judge O'Connor will be able to avoid what she considers legislating will depend less on her than on the senators who interrogated her, and on Congress as a whole.
This huge and turbulent country constantly generates fundamental questions of public policy that imperatively need some kind of answers. When presidents and Congress cannot or will not resolve these questions, the courts are eventually obliged to rule. The sight of Sen. Strom Thurmond of South Carolina presiding over the Judiciary Committee brought one notable example to mind. In the 1950s, when he first arrived there, the Senate was deadlocked over racial segregation and the senator worked tirelessly to sustain that deadlock. Because Congress proved itself incapable of acting, it eventually fell to the courts to give the authoritative answers. And the losers in these cases repeatedly accused the court of legislating.
Judge O'Connor said that, in principle, she dislikes the idea of busing children to achieve racial desegregation. A lot of people, including many in black robes, think that it would have been better if legislatures and local school boards had carried out desegregation on their own initiative, rather than waiting for judges to draw bus maps and enforce them with court orders. But the legislatures and most of the schools boards froze. Much the same thing happened in the evolution of the law on abortion. A question had to be resolved, and Congress wouldn't touch it.
It's all very well for senators to nod solemnly and agree that it's very wrong of judges to try to set social policy. But, although Judge O'Connor was much too prudent to say so, that generally happens only when senators shirk their responsibilities to legislate or enact cheap-shot bills that cater to people's worse nature and which cannot withstand constitutional scrutiny.