I have NEVER favored litmus tests for Supreme Court
justices. With both parties consistently pushing for their preferred
litmus tests, I challenged myself recently on that issue more thoroughly than
in the past. Although I came up with a variation of litmus tests which is
acceptable to me (see below), I concluded once again that I prefer to have no
litmus tests.
By litmus test, I mean that a Supreme Court candidate must
profess a particular position on a particular issue in order to be nominated to
the bench.
I believe a potential nominee should be evaluated based on
his/her portfolio of decisions:
- Judicial philosophy, including interpretation of the
constitution, separation of powers, proper respect for legal precedent,
etc. (“proper” is intentionally subjective)
- How has the nominee ruled in the past?
- Has (s)he expressed clearly communicated decisions?
- Have those decisions demonstrated clear thinking?
- Have they had the fairness to make a decision which
conflicts with their personal preferences?
- Have they had the integrity and courage to dissent even
when it might be unpopular?
- Are their dissents as well thought-out and written as
their majority opinions?
- Have their past decisions stood up or have they been
reversed? If reversed, why?
- Have their decisions influenced the Supreme Court?
- Have they handled themselves properly?
A litmus test is inappropriate because:
a)
A judge should make a decision based on the
merit of a particular case, which can’t be entirely anticipated in advance.
b)
A judge should not make a final decision before
considering all the evidence in the case and the pleas of the opposing
attorneys.
c)
A judge should not make a final decision before
hearing the discussion of the other Supreme Court justices.
d)
A judge should ask questions to help clarify
issues.
e)
A litmus test question can pressure the justice
to act inappropriately when a related case comes before that judge. The
judge should judge the case on its merits, not based upon what the judge may have
said in the past.
f)
People may change their mind over time.
g)
There may be a good reason not to over-rule, or
perhaps only partially modify, a previous decision.
h)
A case may not present a good basis for a ruling
a justice might make in a somewhat similar case.
i)
A litmus test may be “compelled speech” which is
illegal for public employees. “We won’t appoint you unless you promise to
take a particular stance.”
j)
A nominee is reasonably reluctant to criticize
current justices during the nomination process.
k)
Neither the selector nor the other political
party should have a litmus test. The non-selecting party, in my opinion,
has a responsibility to approve the selected candidate unless that candidate is
unworthy of the job.
Because of the litmus tests that Donald Trump and Hillary
Clinton espoused during the election and the litmus tests which both parties
are proposing now, I challenged myself hard on this issue recently.
The following possibility had some appeal:
- Tell the nominee in advance that (s)he will be
questioned relative to a particular past case.
- The nominee is then expected to review all the
pleadings and the opinions on the case at each judicial level (what I
think they would do if sitting on the bench).
- The nominee is then asked how (s)he thinks (s)he would
have ruled on that case if it were brought to them today with the
same arguments.
Such a question allows the nominee to review all the background
and to speak to a very specific case, rather than on a future speculative case.
This approach might take a lot of time,
but for a permanent appointment that could make sense.
Nonetheless, I am still uncomfortable because I don’t like
litmus tests for the reasons stated above. The nominee would not have
heard all discussion, nor been able to ask questions. A current
discussion would differ, which might affect a judge’s decision.
If this was done, and if the interrogators would accept an
answer which might be hedged (“I think I would …”), I would find it acceptable
even though it is not my preferred approach.
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