Silence on the Court

IN the 1992 presidential campaign, the Supreme Court is the dog that didn't bark.

Wasn't it less than a year ago that the nation was in turmoil over the nomination of Clarence Thomas to the high court? Wasn't it just three months ago that the court's "Yes, but ..." decision in an abortion-rights case set off a political commotion over the fate of Roe v. Wade?

Given the likely retirements of some current justices, the next president probably will nominate two and perhaps as many as four new members of the court. You would think that for both conservatives and liberals, the power to control future appointments to the Supreme Court would be a salient issue in the campaign.

But except for a few references by Bill Clinton to New York Gov. Mario Cuomo as a possible future nominee to the high bench, the candidates have largely ignored the Supreme Court as a campaign issue. What's going on?

While public feeling about the Supreme Court periodically runs high owing to a controversial decision or nomination, in fact the court has never been a hot-button issue with most voters. Moreover, as a campaign issue the Supreme Court poses dangers for both candidates, and they may feel that silence is the best policy.

If President Bush brings up the court by promising to appoint conservative justices, he is likely to stir up hornets' nests: Liberals will repeat their opposition to the Thomas appointment, women will be reminded of Anita Hill, and conservatives will voice disappointment over the moderation of "stealth nominee" David Souter.

As for Mr. Clinton, he slipped when he pledged to appoint only justices who would uphold Roe. Even many pro-choice voters are uncomfortable with such an overt declaration of a "litmus test" for Supreme Court nominees. Clinton's pledge invites accusations of hypocrisy, since for 12 years Democrats have decried purported conservative litmus tests for judicial appointments.

But while the candidates perhaps are politically prudent, it's a shame that they are ducking the responsibility to articulate their judicial philosophies. As we have seen with Presidents Reagan and Bush, judicial appointments - especially to the Supreme Court - create one of the most powerful and durable legacies a president leaves behind.

Since the candidates are dodging the issue, voters and the press should challenge them to confront it. Certainly at least one question about the high court should be directed to the candidates in whatever debates they eventually hold.