When the Senate Judiciary Committee weighed the nomination of William O. Douglas to the Supreme Court in 1939, Douglas waited patiently outside the hearing room in case any senators wanted to question him.
Federal appeals court Judge David H. Souter, President Bush's first nominee to the high court, is not likely to enjoy the same luxury.
The little-known New Hampshire judge is expected to face intense questioning about his judicial philosophy and legal views when the Judiciary Committee holds confirmation hearings in September. Since Bush announced his nomination Monday, debate has centered as much on the appropriate scope of the committee's inquiries as it has on the nominee himself.
Attorney General Dick Thornburgh, reflecting the position of the administration, has said it would be improper for Souter to answer "case-related" questions. Nonetheless, it seems likely that at least a few members of the committee will press Souter on such controversial issues as his assessment of Roe v. Wade and whether he would vote to overrule the 1973 ruling establishing a constitutional right to abortion.
Sen. Charles E. Grassley (R-Iowa), a strong opponent of Roe, indicated Tuesday that he would quiz Souter about his views on the controversial decision. "I don't have to be circumspect," Grassley said, "but he may."
Indeed, the issue facing committee members appears to be not so much what they ought to ask as what they should expect Souter to answer.
Since 1925, when Harlan Fiske Stone became the first nominee to testify before the committee, the confirmation process has changed markedly, but the rules are still unclear.
The problem for the Judiciary Comitttee is the tension between the Senate's duty to fulfill its function of advice and consent on nominations -- a role that has come increasingly to involve consideration of the nominee's judicial philosophy -- and the feeling that it would be improper to ask a nominee for a commitment on a future case.
Until relatively recently, nominees faced little interrogation on matters of legal substance. Felix Frankfurter, the second nominee after Stone to be called before the committee, warned in a 1938 hearing that it would be "not only bad taste but inconsistent with the duties of the office" to discuss his "personal views on any controversial political issues affecting the court."
Nine years later, Sherman Minton refused to appear at all, saying his "personal participation" would pose "a serious question of propriety" and that his record spoke for itself.
Every justice since John Marshall Harlan in 1955 has testified before the committee. The scope of the questioning has differed from nomination to nomination, with Republicans and Democrats often taking contradictory views of what is and is not permissible depending on how they felt about the nominee.
When Justice Abe Fortas was nominated to be chief justice in 1968, for example, conservatives on the committee pressed for his views on an array of issues before the court.
"Don't you think the members of the Senate, of this Judiciary Committee, are entitled to know what your philosophy is if they are going to consider you for chief justice?" Sen. Strom Thurmond (R-S.C.) demanded.
"The public wants these matters gone into, and a great many people feel that you are withholding your real true view, if you do not enter into the discussion of these matters as members of the Senate committee prefer to do," Thurmond warned.
But during the hearings three years ago on Robert H. Bork, whose nomination he supported, Thurmond complained repeatedly that the committee's function should be limited to consideration of the nominee's competence, temperament and integrity.
The Bork hearings featured unprecedented scrutiny of the nominee's legal philosophy, and made clear that the Senate would take such issues into account in voting on confirmation. Bork willingly participated, declaring that he had decided to give detailed answers about his views on particular cases in order to combat misconceptions about them.
But the hearings did not clarify the degree to which nominees with a less clear-cut philosophy than Bork's would be expected to explain their legal outlook, particularly their assessment of specific decisions.
In 1959, Potter Stewart told the committee that he would not vote to overrule Brown v. Board of Education, the then still-controversial public school desegregation case decided five years earlier.
But when Justice Sandra Day O'Connor went before the Senate in 1981 and was attacked by antiabortion groups for her alleged "pro-abortion" voting record as an Arizona legislator, she told the committee she was personally opposed to abortion but refused to disclose her legal views on Roe in the face of repeated demands by antiabortion senators that she do so.
"With all respect, it does seem inappropriate to me to either endorse or criticize a specific case . . . in a matter which may well be revisited in the court in the not too distant future," she said.
Five years later, Antonin Scalia, who in his writings had been critical of Roe, refused to tell Sen. Edward M. Kennedy (D-Mass.) whether he would vote to overrule it. Scalia said an announcement on that topic would put him "in a very bad position" when the matter came before the court.
"I assure you I have no agenda," he told Kennedy. "I am not going onto the court with a list of things I want to do." However, he said, "I will not say that I will never overrule a prior Supreme Court precedent."
The most recent nominee to the court, Anthony M. Kennedy, was not even questioned about his views on Roe, but said in general that he thought there was some degree of constitutional protection for a right to privacy.