Senate charade.

SOMEDAY, a nominee for the United States Supreme Court is going to respond to Joe Biden and Howard Metzenbaum as they inquire about his commitment to a constitutional "right of privacy" like this: "Senator, we can all agree that there are specific rights of privacy in the Constitution. The Fourth Amendment, for example, protects individuals from unreasonable searches of their person and property. But I believe that your question alludes to something else, an unwritten 'right to privacy' located at some uncertain place in the Constitution and revealed only to a small handful of past Supreme Court Justices. Principally, this 'right' has been interpreted to protect various forms of abortion rights. While I am not personally of the view that the Constitution sets forth any fundamental right of a woman to destroy her unborn child, I am certainly willing to entertain the notion that there are other aspects to this largely unexplored right. I would seek guidance from the Honorable Member as to the scope of this right. Does it include, to mention a few topics bandied about in the law reviews, the right to use drugs in one's home, the right to consume pornography, the right of homosexual couples to marry, euthanasia rights, the right to have one's abortions subsidized by the taxpayer, sodomy and incest rights, and so forth?"

Someday, that same nominee is going to continue, "Following our discussion of rights that, at best, can only be inferred from the emanations and penumbras of the Constitution, let me contrast my views on those matters with my views on some long-ignored provisions that are expressly contained in that document--freedom of contract, the right not to have one's property taken without just compensation and due process of law."

That nominee has not yet emerged. In fairness, let us say that Thomas's handlers are correct in their assumption that the confirmation process is not a pedagogical forum; it is an enemy minefield to be traversed by any necessary means. Still, it is disconcerting to watch an engaging, intellectually vibrant individual like Judge Thomas seem evasive and unresponsive before the Judiciary Committee. Far worse when his answers seem to give aid and comfort to the enemies of those who have assisted his own career--the impliation, for example, that the Reagan Administration was less than sympathetic to legitimate civil-rights concerns.

And on such diverse issues as affirmative action, the establishment-of-religion clause, equal protection, and approaches to constitutional interpretation, the nominee has seemed largely to accept the premises of those who support the status quo. Not that the Republican senators did much to insist on higher standards for the hearings.

Almost certainly, Clarence Thomas will be approved by a substantial margin and almost certainly this will be good for the country. His confirmation hearings will be soon forgotten, just as David Souter's and Anthony Kennedy's and Sandra Day O'Connor's have already been. What we have seen in the hearings is simply the latest evidence of the continued deterioration of the political process. The senators on the committee are not looking for serious debate any more than Clarence Thomas's handlers are. The senators are looking for gaffes, inappropriate code words, and exploitable sound-bites; the handlers are looking to avoid them.

That is the legacy of the Bork nomination--and it is a legacy shaped by the intolerant "liberalism" of senatorial Democrats and the media.