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Confirming a Supreme Court nominee. Ideology should not be a term of opprobrium

THERE are profound lessons to be learned from the confirmation process, both of Judge Robert Bork and of Judge Anthony Kennedy. The president is entitled to nominate justices for the Supreme Court who share his ideology. The Senate may deny consent to a nominee who does not share its ideology. All this is, in fact, implied in the United States Constitution. Article II of the Constitution gives the president the right to name justices to the court - with the ``advice and consent'' of the Senate.

The Bork and Kennedy hearings, virtually seminars in constitutional law, laid to rest the notion that the only issue is whether a nominee is a good lawyer. Of course the nominee should be eminently well qualified.

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But the heart of the matter is the nominee's ideology. The word ``ideology'' carries with it a somewhat invidious connotation. It should not. In more elegant language it can be described as the nominee's viewpoint and commitment to our constitutional scheme and the role of the Supreme Court in interpreting the supreme law of our land.

Those who protest that ideology is irrelevant overlook that while the Supreme Court is a court of law, as it must be, the court's function transcends this concept.

The greatest of our chief justices, John Marshall, in an early opinion, said almost 200 years ago, ``We must never forget that it is the Constitution we are expounding - intended to endure for ages to come and consequently, to be adapted to the various crises of human affairs.''

And Chief Justice Harlan Stone, appointed by President Calvin Coolidge, said of the Constitution, ``We read its words not as we read legislative codes which are subject to continuous revision with the changing course of events but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government.''

The issues involved in the Bork and Kennedy hearings basically involved these precepts that for 200 years have been in the mainstream of American law. Of course in the Bork hearings there were special-interest groups that opposed and supported his nomination. But in the final analysis the Senate denied consent because of its belief that the nominee was not in this mainstream. The particular issues were privacy and the Ninth Amendment.

In the confirmation hearings Judge Bork stated that the Constitution made no reference to the right of privacy. This is true. On the other hand, the right of privacy, as the Senate recognized, is derived from various constitutional provisions.

As Justice William Douglas pointed out in the opinion for the court in Griswold v. Connecticut, the Connecticut birth-control case, the association of people is not mentioned in the Constitution or in the Bill of Rights. The right to educate a child in a school of the parents' choice - whether public, private, or parochial - is not mentioned. Yet the First Amendment has been construed to include these rights.

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Justice Douglas also pointed out that various other amendments create zones of privacy. The Third Amendment in its prohibition against the quartering of soldiers ``in any house,'' in time of peace without the consent of the owner, is another facet of that privacy. Douglas also pointed out that there are other constitutional provisions on privacy.

The Fourth Amendment explicitly affirms ``the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.''

The Fifth Amendment, in its self-incrimination clause, enables the citizen to create a zone of privacy that government may not force him to surrender to his detriment.

And, as I pointed out in my concurring opinion in Griswold, the right of privacy, though not expressly mentioned, is embraced by the language and concept of liberty protected by the First and 14th Amendments. That this is so was stated by Justice Louis Brandeis long ago in his dissenting opinion in Olmstead v. US. This is what Justice Brandeis said: ``The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.''

The right of privacy encompasses and transcends the right of a married couple to practice birth control and the right of a woman to elect to have an abortion. The Supreme Court has so decided. It is to the credit of the Senate and the American people that they recognize that, whatever their views about birth control and abortions, the right of privacy is an essential ingredient of the liberties of Americans.

The American people do not want their telephones tapped, their houses bugged, or their bedrooms invaded. Women are entitled to a right of choice as to whether they should conceive, as an aspect of liberty, free from governmental interference.

The Senate's adoption of privacy as a constitutionally protected right is highly significant. In this, the Senate and the Supreme Court are at one.

There is another aspect of the confirmation proceedings of significance. Mr. Bork, in his testimony, rejected out of hand the proposition that fundamental rights not specifically enumerated in the first eight amendments of the Constitution are protected by the Ninth and 14th Amendments. In effect, he dismissed the Ninth Amendment as mere surplusage. In doing so, he overlooked important historical evidence.

The Ninth Amendment explicitly states that ``enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.''

A cardinal rule of constitutional interpretation holds that it cannot be presumed that any clause in the Constitution is intended to be without effect.

This is supported by the historical evidence. The father of the Constitution, James Madison, stated, in explaining the Ninth Amendment, that ``it has been objected also against a bill of rights that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow by implication, that those rights which were not signaled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].''

The relevance of the Ninth Amendment to the constitutional debate in the confirmation process should be evident. The argument that the right of privacy is not a fundamental personal right simply does not wash.

In addition, the 14th Amendment cannot and must not be ignored. The 14th Amendment, among other things, states that government ``shall not make or enforce any law which shall abridge the privilege of immunities of citizens of the United States.''

In a democratic society, privacy must be regarded as a privilege and immunity of citizens, as well as a cherished liberty.

A final lesson is to be learned from the confirmation hearings: No longer can a nominee for a Supreme Court vacancy decline to discuss his or her ideology about our constitutional guarantees in confirmation hearings before the Senate Judiciary Committee.

Not so long ago, Justice Felix Frankfurter refused to appear before the Senate Judiciary Committee when nominated to the Supreme Court by President Franklin Roosevelt. Since then no other nominee has refused to appear. For a nominee to refuse to appear before the committee is to deny to the Senate the means to determine whether to consent to a presidential nominee to the Supreme Court.

The Bork and Kennedy confirmation hearings, however painful to the nominees, are in strict accord with our Constitution. The President may nominate; the Senate must consent or deny consent.

Arthur J. Goldberg is a former associate justice of the Supreme Court of the United States.

The opinion-page column ``Confirming a Supreme Court nominee,'' Dec. 29, by former Justice Arthur J. Goldberg, contained an error. Reference to the First Amendment in Paragraph 14 should have read ``by the Fifth and 14th Amendments.''

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