Balkinization: Who's Afraid of A Litmus Test?

Who's Afraid of A Litmus Test?

More evidence that the stealth strategy is not going over well with movement conservatives.

Mike Paulsen and John Yoo demand that Harriet Miers explain her views on Roe v. Wade or face rejection by the Senate:

The only way out of this mess is for GOP senators to ask — and to require Miers to answer, as a condition of confirmation — direct questions about her judicial philosophy and its application to concrete constitutional issues. Republicans should test Miers' core legal principles. And if she fails the test, or refuses to take it, they can vote against her.
The administration's stealth strategy assumes that it is improper for senators to ask, or for a nominee to answer, a question about Roe vs. Wade or any other substantive constitutional question. This has things exactly backward. The Constitution not only permits such questioning, it arguably requires it. Although the Constitution makes judges independent after appointment, it sets up an explicitly political appointment process before a judge is approved. Why on Earth would determining a nominee's approach to interpreting the Constitution be thought to be out of bounds, before giving her a lifetime appointment to do exactly that?
Is there any line of inquiry that the Constitution does not permit? Yes. It would be improper to try to exact a pledge as to how a nominee will rule in future cases. As long as the inquiry stops short of that, it does not violate the Constitution's protection of judicial independence, nor does it violate judicial ethics. Parties before the courts are entitled to judges who will consider their cases without bias. But they are not entitled to judges who have no views of the law. An open mind is one thing; an empty head is another.
We would go one step further. The most useful way of discovering a nominee's views is through "litmus tests." One question would yield the maximum information about a nominee's judicial philosophy (without requiring a commitment as to any future ruling): "What do you think of Roe vs. Wade"? The answer could explain her theory of constitutional interpretation, her views on the judicial invention of rights not set forth in the Constitution, her views on when courts should follow precedent, and her views about the judiciary's role in our constitutional system.
Conservatives should insist that all nominees should interpret the Constitution in strict accordance with its text, structure and original understanding. Judicial decisions that depart from these principles amount to freewheeling policymaking from the bench. Precedent always should receive respectful consideration, but it cannot trump the Constitution. Because the Roe vs. Wade decision ran contrary to the Constitution and sound principles of constitutional interpretation, conservatives can maintain, forthrightly and without fear, that no judge should be appointed to any federal court who thinks the case was correctly decided as an original matter.
The administration may prove right in its claims that Miers is a principled conservative and an outstanding lawyer. Miers may very well think Roe vs. Wade is wrong and that judges should strictly interpret the law rather than make law. All she has to do to prove it is to answer one simple question: Ms. Miers, what do you think of Roe vs. Wade?

Now that's a litmus test. If you think that Roe is correctly decided, you are hereby disqualified from serving on the federal judiciary. No ifs, ands, or buts.

Of course, as I've pointed out on any number of occasions, Republicans can preserve their winning electoral coalition and remain as the majority party only if they don't force judicial candidates to state under oath that they oppose Roe v. Wade and seek to overturn it. So now movement conservatives, justifiably angered by Bush's cronyism and lack of serious concern about the Constitution, are demanding that the Senate Republicans destroy their own coalition.

I'm really looking forward to the hearings, aren't you?

Posted 4:59 PM by JB [link]

Comments:

I suspect that they COULD survive seeking to "force judicial candidates to state under oath that they oppose Roe v. Wade and seek to overturn it.", AND seeking to educate the public about the real implications of Roe and Doe; Forcing the litmus test without getting the public to understand why it's needed would be self destructive, though.

# posted by

Brett : 6:51 PM

Maybe Yoo could find a "legal" way for Senate Judiciary to beat it out of her.

# posted by

Mimbreno : 7:51 PM

i find it amazing that only a month or so ago, conservatives were railing about the absolute temerity of some senators seeking to question justice roberts about his views on specific cases and specific issues. now, though, when those same self-appointed apostles of virtue think they may not get exactly what they are demanding, it's suddenly not only acceptable, but practically mandated that the questions be asked and the nominee openly respond. what a bunch of hypocrites.

by the way mimbreno, that's one of the funniest lines i've ever seen around here.

# posted by

phg : 7:57 PM

I think the public understands the real implication of Roe and Doe ... it's why they agree with their core but not their outer contours. Thus, Casey.

The co-author of the editorial contributed to the book Prof. Balkin put together about what Roe should have said. Yoo's contribution is interesting though.

Yoo said we should "trust" the President when the war power is at stake, even if it might lead to abuses. Now, "trust" is not enough.

Consistency ...

# posted by

Joe : 7:58 PM

The title of the blog might well have been, "Who's Really Afraid of A Litmus Test?"

But what is one to make of counsel that seems so solicitous of G.O.P. interests? Greater love hath no liberal Democrat, than to persuade Republican leaders not to split their "winning electoral coalition," thus turning the country over to Democrats?

Your reasoning here, and especially in your linked NYTimes oped, is striking. But a kind of Uncle Remus voice in my ear wonders whether I should trust the validity of an argument that seems to presuppose such a disinterested -- nay -- sacrificial posture.

# posted by

Curtis Crawford : 9:58 PM

You might want to check out some of Yoo's comments w/r/t the Roberts nomination questioning:
http://www.washingtonpost.com/wp-dyn/content/discussion/2005/09/08/DI2005090801076.html

A member of the Senate can choose to vote for or against a nominee for whatever reason he or she chooses, and can ask any question they want.
...
At the same time, nominees have a duty not to judge cases before they are argued and submitted to them for decision. We would think it wrong, for example, for a nominee to announce during confirmation hearings that he or she will always vote for or against the police in a search or seizure case. That limits their ability to answer.
...

Q: Senator Specter said that he intends to ask Roberts if he believes that there's a Constitutional right to privacy. If Roberts says no, is this cause for concern? In other words, do most judges believe that such a right is implicit in the Constitution, or would this make Roberts something of outlier?

John Yoo: That would be a fair question to put to Roberts, and it has been put to previous nominees. Given Roberts' respect for precedent, he will probably answer the question yes. I would be shocked if he said no. At worst, he would say that he would not answer the question so as not to prejudge any cases coming before the Court now about the right to privacy.

Q: ...what extent do you believe a potential Supreme Court candidate's views on contentious issues (abortion, affirmative action, etc.) should be considered as criteria? ... I wonder if, in the hearings, the Senate should consider not just what Roberts' views are, but his logic at arriving at those views. What are your thoughts on this?

John Yoo: ... I think that President's should consider judicial philosophy when they appoint Supreme Court justices. ... I think that Presidents would not do their duty if they appointed judges they thought would undermine or disregard the Constitution. In order to make sure that doesn't happen, Presidents must inquire at some level about what a potential nominee thinks of the Constitution.
The important thing, however, is to recognize that there are areas where the Constitution is ambiguous, or where reasonable people can differ. Both Presidents and Senators should realize that there are areas where they can accept someone who has a different view than their own.

Note that Yoo did not answer the question. First, he talked about the President, not the senate, and second, Yoo does not say weather the senate should consider Roberts' view on controversial issues. Yoo certainly did not express the views of the later L.A. Times op-ed.
Conclusion: Yoo is a torture-enabling hypocrite.

# posted by

mm : 4:47 PM

I have no objection to litmus tests, provided they're the correct litmus tests. As it turns out, Roe is actually a pretty good litmus test, too. If a nominee believes that Roe was correctly decided, as an initial matter, we can pretty easily see they're not fit to be on the court, insofar as there is no coherent, pursuasive constitutional rationale that can find an abortion right in the Constitution; the Justices in the Roe majority looked, failed and made do with Blackmun's ho-hum opinion; liberal scholars have tried for thirty plus years to provide a rationale that works, and failed at every turn. So it's a good litmus test in that area. It's also a good litmus test for a nominee's views on stare decisis, because obviously it's still a hugely controversial case (albeit in a totematic fashion) and is at clear variance with the constitution. A nominee needs to have a clear view of when stare decisis protects a wrongly-decided case, and if Roe falls within their definition of such an instance, clearly, they shouldn't be on the court.

I have to admit that it was frustrating with Roberts - and will be frustrating to see with Miers - to see that instead of conducting a real debate about conservative jurisprudence, once again we must hang our heads in shame as if we secretly know that Prof. Balkin and Larry Tribe are actually right and we're just trying to dynamite their obviously correct positions for our own political gain. This strikes me as short-sighted and insulting. I don't want a nominee who will hedge about Reynolds, Roe, Lawrence etc.; I want a nominee who will calmly and respectfully explain why it was wrongly decided and why they'll overturn it.

# posted by

Simon : 11:29 PM