At his Senate confirmation hearing last month, Supreme Court nominee Antonin Scalia was asked what he thought of Marbury v. Madison, the 1803 ruling that established the high court's basic power to review the constitutionality of acts of Congress.
Scalia sidestepped the question. "I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison," he said.
Sen. Arlen Specter (R-Pa.) became annoyed when Scalia refused to discuss either that case or an 1869 high court ruling on Congress' power to strip the courts of part of their jurisdiction.
"I have not asked you to go very far . . . . How does a senator make a judgment on what a Supreme Court nominee is going to do if we do not get really categorical answers to fundamental questions?" Specter asked.
As the Senate prepares for debate this week on the nominations of Scalia and Chief Justice-designate William H. Rehnquist, some of its members are frustrated by their inability to extract information from the two men about their views of basic constitutional issues. "It doesn't leave you with a feeling that you've done your job," said Sen. Dennis DeConcini (D-Ariz.).
It is not a new lament; Justice Sandra Day O'Connor calmly sidestepped most substantive questions at her 1981 hearings. But it is being heard with increasing frequency as the Senate has become embroiled in controversy over President Reagan's conservative judicial appointments.
Rehnquist and Scalia are likely to be confirmed by comfortable margins. Democratic opponents of Rehnquist plan to engage in extended debate about his civil rights record, but they have not committed themselves to a filibuster.
The debate over Rehnquist has focused heavily on matters unrelated to his 15-year Supreme Court record, in part because Rehnquist refused to discuss that record during his confirmation hearings and in part because senators are reluctant to be openly ideological in opposing a presidential nominee. In fact, the entire confirmation process has increasingly focused on the subjective realm of character, ethics and veracity.
"In the past, the Senate was willing to be much more candid about the role of philosophy in rejecting nominees," said Duke University law professor Walter Dellinger. More recently, he said, opponents have felt compelled "to comb the record for some possible ethical violation."
This has led to "a raking over of some pretty old coals" in Rehnquist's case, Dellinger said. "It would make more sense for the Senate to openly acknowledge that just as the president may consider the philosophy of judges, so may the Senate."
The nominees' standard refrain is that they cannot comment on legal issues because it might prejudice them in a future court case. Nominees who are judges generally decline to discuss rulings in which they have participated on grounds that this would compromise the judiciary's independence.
But DeConcini, who voted with Specter to confirm Rehnquist and Scalia in the Judiciary Committee, said several Reagan nominees have used that argument as an excuse to be "evasive."
"Scalia was just totally overprogrammed," DeConcini said. In one exchange, DeConcini asked Scalia about a magazine article called "Freedom of Information Act Has No Clothes," which he wrote in 1982 before becoming an appeals court judge. "I have tried to avoid making any public statements on controversial issues of public and political policy since I have been a judge," Scalia said.
Pressed on whether he still believes what he wrote in the article, Scalia said it would be fair to describe his current views on the subject as "unknown."
"Rehnquist would have left a better impression if he'd been more forthcoming," said DeConcini. "These guys were overcoached [by the administration]. That's eventually going to backfire."
Justice Department spokesman Terry H. Eastland responded that "it's unfair to say they were coached, as though they were some kind of puppets on a string. Both of these men are independent, fierce intellects."
Rehnquist, among other things, refused to say why he had not disqualified himself from a 1972 military surveillance case he had handled as a Nixon administration official, saying that was a "judicial act" he did not have to explain.
Judiciary Committee Democrats spent most of their time on other issues: allegations that Rehnquist harassed minority voters in Phoenix in the 1950s and 1960s, questions about restrictive racial covenants on two houses he purchased, and demands for memos Rehnquist wrote as an assistant attorney general in the Nixon administration.
"If senators want to oppose someone on ideological grounds, they ought to make those grounds plain and not hide behind smokescreens of restrictive deeds or apparent contradictions," Eastland said.
Judiciary Committee Chairman Strom Thurmond (R-S.C.) has joined some Justice Department officials in accusing the Democrats of opposing Reagan judicial nominees because of their conservatism.
In 1968, however, Thurmond led an openly ideological assault on President Lyndon B. Johnson's nomination of associate justice Abe Fortas to be chief justice. The nomination was withdrawn after a four-day filibuster by Thurmond and other southern senators.
Thurmond criticized "the positions taken by Justice Fortas since he went on the Supreme Court" on such issues as "criminal procedure, pornography, state-federal relations and subversive activities." He showed his colleagues pornographic magazines that the high court had refused to find obscene, complaining that "Justice Fortas has voted to reverse obscenity convictions in 35 of 38 cases since he became an associate justice."
Senate opponents also argued that Fortas had improperly acted as a personal adviser to Johnson and had accepted a questionable $ 15,000 speaking fee from American University.
The Senate rejected George Washington's nominee for chief justice, John Rutledge, in 1795 because he had attacked a treaty supported by the Federalists. Another 21 Supreme Court nominees were turned down during the 19th century, most for political reasons.
Until Felix Frankfurter voluntarily appeared before the Senate in 1939, Supreme Court nominees did not even testify at their confirmation hearings. University of Chicago law professor Philip B. Kurland said in an interview that such personal appearances should be discontinued because it promotes "a circus atmosphere . . . . I just don't feel it's helpful to the Senate or the nominee to grill a nominee in terms of his beliefs or past behavior."