The lingering questions of the Thomas and Ginsburg hearings anxiously converged in a sexual harassment case before the Court this week. Can sexual banter in the workplace be punished if it offends women without affecting their job performance? And are men's and women's perspectives about sex so vastly different that women need special protection from the vulgarity of men?
On the first day of the new term, the Supreme Court revisited the question that undid Lani Guinier: How much racial gerrymandering does the Constitution permit, and the Voting Rights Act require? In her opaque majority opinion in Shaw v. Reno last June, Sandra Day O'Connor flirted with, and then retreated from, the argument that the Constitution always forbids states from carving out black and Hispanic electoral districts, even as a remedy for past discrimination.
The trial of Cornelius Singleton, who was executed in Alabama last November for killing a nun in a cemetery by smothering her with rocks, was hardly a model of due process. After begging to be taken off the case, the court-appointed lawyer refused to meet with his client, failed to object when the prosecutor struck all blacks from the jury pool and neglected to tell the jury that Singleton was mentally retarded. He then forged Singleton's name on a petition for habeas corpus; he was later disbarred.
A few days alter the president nominated her to the Supreme Court, Ruth Bader Ginsburg received a fax from a member of the Rotary Club in Bernardsville, New Jersey.
"It is going to be impossible to defeat you in the Senate, because you have a way with words," Orrin Hatch told Sheldon Hackney during his confirmation hearings to head the National Endowment for the Humanities. Hatch was putting it mildly. Hackney's sins are not limited to his sophisms about the conflict between "openness and diversity" at the University of Pennsylvania. He should also be held accountable for defending speech codes a full year after the Supreme Court made clear that they are unconstitutional.
In every Supreme Court term, there is at least one case that tests, and vividly exposes, the character of the justices. Last year it was abortion; this year it is hate crimes. The outcome of Wisconsin v. Mitchell--which upheld a law that requires harsher sentences for criminals who "intentionally select" their victims "because of race, religion" and the like--was never really in doubt. But instead of being sensitive to the intricate First Amendment concerns that the case raised, William Rehnquist dismissed them contemptuously.
If Bill Clinton nominates Bruce Babbitt to the Supreme Court, he will be hard-pressed to claim that the interior secretary shares his judicial philosophy. For after reviewing Babbitt's extensive writings and speeches, the White House is confident that Babbitt has virtually no opinions on constitutional issues that he has bothered to express. For most politicians, this would be unexceptional; but in Babbitt's case it is somewhat surprising.
Having peered behind the red velvet curtains of the Rehnquist Court, the press now tells the embarrassed justices that they have nothing to be embarrassed about. But after spending last week in the Marshall archives, I sympathize with William Rehnquist's fears. The portrait of the justices that emerges from their internal correspondence is not, in fact, particularly flattering.
Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom by Ronald Dworkin (Knopf, 273 pp., $23) Liberals urgently need a constitutional philosophy, and Ronald Dworkin is eager to provide one. In his important writings over the past three decades, he has tried to work out a comprehensive theory of law, as well as a principled approach to the American Constitution. With few apologies, he has defended the Warren Court against a parade of conservative critics -- from the Burkean prudentialism of Alexander Bickel to the purported historicism of Robert Bork.
The White House has expanded its search for the next Supreme Court justice; and it is now possible to evaluate the scholarship, opinions and constitutional vision of the candidates. All are able federal judges. But some are more proficient than others at textual and historical analysis, and so better equipped to win over the swing justices and to challenge the Court's most aggressive intellectual, Antonin Scalia, on his own terms. In ascending order: Mary M. Schroeder, 52. U.S. Court of Appeals, Phoenix, Arizona.