Presswatch/An American Originalist
Eastland, Terry
AN AMERICAN ORIGINALIST Now that David Souter has taken his seat on the Supreme Court, the journalism on his confirmation is ripe for review by your faithful guide to all things media. We begin...
...Late in his testimony, Souter had an exchange on "originalism" with Sen...
...She then reported an accurate quotation from Souter: "My approach to interpretation is not a specific-intent approach...
...However, according to Souter, these intentions may or may not be the same as the "objective sense of meaning" that the Constitution expresses...
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...Ray Jenkins can look it up: Justice Byron White was in the majority in Griswold but dissented in Roe...
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...that bears on this issue...
...Olson, of course, is the Boston Herald sports reporter who accused several Patriots of sexual harassment while she was conducting a post-game interview...
...An irony here is that Souter's handlers didn't try to disabuse reporters of the idea that he had rejected originalism...
...It would protect the privacy of those players for whom it matters...
...Incidentally, the people who run women's professional sports (golf and tennis) provide interview rooms...
...Second, Souter so easily dealt with his interrogators on the Judiciary Committee that one had to wonder just how up to the task Biden & Co...
...And he pulled this relevant quote: "The search is not for a subjective intention...
...A separate interview room is the way to go...
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...Is this what women—or men—really want...
...It logically follows," Jenkins opined, "that if [Souter] would uphold the Griswold case, he would also uphold the Roe case...
...Bork sounded like Souter, or perhaps I should say Souter sounded like Bork...
...States and its allies in the late Twentieth Century...
...Original Terry Fostland is a resident fellow at the Ethics and Public Policy Center in Washington, D.C...
...36 principles, Souter said repeatedly, may be applied to situations unknown to those who framed and ratified the original Constitution...
...Manfred Woerner, Secretary General of NATO, singled out Strategic Review for "its embracive, universal view of strategy, and its focus on the global interplay of political, economic, social and military factors...
...Besides, they have a job to do...
...Finally, two stories that should have been assigned went unreported...
...Astonishingly, there are some reporters (such as Christine Brennan of the Washington Post) who say they'd fight equally hard for men to be allowed in women's locker rooms...
...One of the more insightful comments on Souter came from Bruce Fein, who deserves credit for taking on the nominee's oft-repeated testimony to the effect that Brown v. Board of Education, the Supreme Court's landmark desegTHE AMERICAN SPECTATOR DECEMBER 1990 In a Time of Momentous Changes Taking Place in the International Arena, USSI Invites You to Share in Today's Best Thinking on the State of Our National Security "A very important element of the media for professionals and laymen alike who want to keep abreast of national security affairs is the quarterly journal...
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...Is that really what happened...
...Professional football (and other men's pro sports) depends upon public support...
...Putting aside Souter's declining to testify whether he accepted the result in Griswold, it is quite possible to agree with that case and disagree with Roe...
...Souter never deviated from this, well, originalist position, and he explained it so many times as to leave no mistake as to where he stood...
...But Mann then observed that "Souter is not so far removed from Bork as might at first appear...
...Frankly, the issue isn't difficult...
...Weyrich's story implied what Greenhouse's made explicit—that Souter was no originalist...
...Signature United States Strategic Institute 2020 Pennsylvania Ave., N.W., Suite 610, Washington, DC 20006 regation decision of 1954, was precipitated by political immobility in other branches of government in addressing racial discrimination...
...Roe, of course, is the 1973 case in which the Court, expanding the privacy right to include abortion, struck down a Texas anti-abortion law...
...national security policymaking and to enjoy the most authoritative assessments available of the military, political, diplomatic and economic challenges confronting the United...
...I'm still looking for the story on the committee that reports how many questions posed by senators are composed by staff, how many times senators are unable to ask coherent follow-up questions (subtracting those which staffers pass along on slips of paper), how much of a nominee's writings senators have actually read, and so on...
...And it would create a welcome degree of order for post-game interviews—precisely what a few players apparently need if they are not to commit some near felony...
...Please send me USSI membership information and a sample issue of Strategic Review...
...In 1985, for example, Bork wrote that a judge should apply original constitutional principles to "circumstances [the Framers] did not foresee...
...Fein was the only writer who criticized this quite vulnerable part of Souter's testimony...
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...Griswold is the 1965 case in which the Court, on the basis of an unenumerated right of privacy, struck down a Connecticut law prohibiting the use of contraceptives...
...In an excellent analysis titled "Souter and Bork: Common Ground," Mann noted that Souter's testimony "tended to shy away from the use of the term by Terry Eastland `original intent' "—the term used by Bork...
...Of course, there are objections...
...Please bill me...
...most importantly, he pledged allegiance to judicial recognition and enforcement of an unenumerated right of privacy, something Bork did not do as a nominee (and which is now the Senate's litmus test for confirmation to the Court...
...Mann could have found similar passages in other Bork writings, some predating his 1987 confirmation defeat...
...really are...
...the fact no one else did testifies to the enduring influence in our political culture of certain myths associated with Brown, and indeed of the Supreme Court as the nation's Great Enforcer of civil rights...
...Souter also failed to tell the rest of the story about Brown, which reflects no credit on the Supreme Court...
...But this hardly does justice to the new justice's view of the matter...
...I suspectthat this is not a story that will make proud the world's most deliberative body...
...Early in his testimony, Souter said that "the interpretive position that I start with" is "one of original meaning...
...This was the kind of after-the-fact, how-ithappened story that big newspapers (because they have the resources) are doing more and more of these days, and, on the whole, doing well...
...Some owners who fritter away large sums on much smaller items don't want to spend the few bucks it would cost to construct an interview facility—an unenlightened position, to say no worse...
...But that doesn't "logically" follow...
...Here, the men could learn from the women...
...D esides Greenhouse, another rel./ porter who botched this aspect of the story was Dawn Weyrich of the Washington Times...
...The question is, however, equal access . . . to what...
...Still, the two men have certain similarities, perhaps the most important being their view of originalism...
...As it turned out, Souter did differ from Bork both in style of presentation and on substantive issues...
...Olson's complaint precipitated a coast-to-coast discussion of whether women who cover men's professional sports should continue to have equal access to the locker room...
...For Souter, the task of the judge in interpreting the Constitution is "to try and find . . . an objective sense of meaning which constrains us and constrains the Republic...
...FT he silliest editorial comment on 1 the new justice came from Ray Jenkins of the Baltimore Sun...
...Souter might as well have been addressing some of the journalists covering his testimony...
...What strikes the eye is her flat statement regarding a central issue in judicial politics today: Souter, she wrote, had "rejected the `originalist' school of constitutional interpretation...
...Only the Dallas Cowboys have elected the latter course, but it's the most sensible...
...Specter tried to say Souter was not an originalist...
...And some professional sports reporters tend to regard their post-game presence in the locker room as something akin to a constitutional right...
...That is why Woerner, then still German Defense Minister, chose Strategic Review for unveiling his important and controversial proposal for a NATO missile defense in 1986...
...A little known but important fact is that while the National Football League requires equal access, it allows to each club to decide whether to open the locker rooms to reporters or provide separate interview areas...
...And with respect, I think that . . . is not so...
...O ne must hope that Justice Souter does not have to hear Lisa Olson v. New England Patriots, or some other such case...
...The utility of the framers' intentions, Souter continues, lies in helping a judge discern the objective meaning of the Constitution itself...
...In a piece on how Souter worried conservatives, Weyrich defined originalism as the approach "favored by conservatives" by which "judges seek only to interpret the Constitution according to the authors' intent...
...THE AMERICAN SPECTATOR DECEMBER 1990 37...
...We begin with Linda Greenhouse of the New York Times and her summary piece on Souter's testimony, published in late September...
...The foregoing is the professional judgment of Harry Zubkoff, former Editor of Defense Media Review...
...One reporter, Terence Mann of the Legal Times, saw this clearly...
...Mann was the first reporter to go to the trouble of opening Bork's recent bestseller, The Tempting of America, to compare the two men...
...It is writ nowhere in holy stone that reporters must interview athletes only in their locker rooms...
...Fein usefully provided facts as to how the post-Reconstruction Court had nullified legal guarantees against racial discrimination, thus becoming, as he put it, "complicit in Judge Souter's putative political vacuum that was arresting the quest for racial justice...
...USSI is an independent, nonprofit organization, and your contribution of S35 will also help to support the Institute's ongoing program of research and publication...
...An orderly atmosphere would also promote more considered responses to postgame queries...
...The Journal's piece, by David Shribman, reported fascinating tidbits, such as that Judiciary Committee Chairman Biden actually told Souter in advance what his very first question would be (it dealt with the privacy right) and that Souter had turned down the idea of a meeting with the man he was to replace, Justice William Brennan, who had sent the nominee a letter expressing interest in a friendship (Souter's reason: there was no precedent for such...
...So for self-interested reasons, if no other, it cannot shut its doors to the media...
...I think the brand of original meaning or original understanding is in fact a valid interpretivist position...
...Lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words...
...If you equate "originalism" with "specific intentionalism," as Greenhouse apparently did, you might write what she did...
...The media now include men and women (there are about 500 females in sports journalism), and there is no good reason why pro football (or any other professional sport, for that matter) should deny females the same access it gives males...
...First: Souter so frequently compared himself to the second John Harlan that a story on this Eisenhower appointee to the Court—intellectually at least as interesting an Eisenhower appointee as Brennan—fairly begged to be written...
...I do not believe," Souter said during his hearing, that "specific intentionalism is a valid interpretive canon...
...Similar testimonials have come from academicians, journalists, legislators, policymakers...
...And it happens that there is at least one justice who upheld the one but not the other...
...The Wall Street Journal merits applause for its front-page story titled, "How Nominee Won in His Classic Clash With Capital's Culture...
...Arlen Specter (R-Penn...
...This amounts to a historical inquiry, which is to say an inquiry into the original constitutional materials—the text itself as well as the intentions of those who framed and ratified it...
...Souter replied he was "depressed" that the senator would think this way, explaining that "the reason you are reading me out of" originalism is that "you are making the assumption that the only brand of originalism, if you will, . . . is thebrand of specific intent...
...They wanted the Senate to think that Souter was no Robert Bork, who of course is the most famous living advocate of originalism...
...Television news, whose patience is limited to sound-bites, doesn't go in for this sort of thing...
...And in applying this meaning, as Souter said on numerous occasions during his testimony, a judge is not to be confined to the specific thoughts of those who enacted the Constitution...
...As Fein correctly pointed out in his column in the Washington Times, President Truman desegregated the armed forces by executive decree, and both political parties adopted strong civil rights planks in their 1948 platforms...
...Strategic Review permits you to share in the strategy debates now underway at the highest levels of U.S...
Vol. 23 • December 1990 • No. 12
