Litmus test for justices? Legal views do matter

Paul Gewirtz

April 29, 1993|By Paul Gewirtz

PRESIDENT Clinton is being criticized for saying he wants t appoint Supreme Court justices who believe the Constitution protects a woman's right to choose to have an abortion.

Critics say that is an inappropriate "litmus test" and will undercut the court's independence.

But there is nothing improper about looking for nominees who hold certain general views about the Constitution or who embrace a constitutional right repeatedly recognized under settled law.

Would anyone call it an improper "litmus test" for Mr. Clinton to say he will only nominate justices who accept the principle, established by Brown v. Board of Education, that racial segregation is unconstitutional?

A nominee's judicial philosophy and legal views are appropriate to weigh for a basic reason: They are relevant to how he or she will perform the job. There are often ambiguities or leeways in the legal texts and rules that judges interpret and a judge's philosophy and views will inescapably affect his or her interpretations.

Moreover, prospective Supreme Court appointees doubtless have given serious thought to large legal issues such as abortion one hopes they have -- and these views are likely to influence their actions as judges.

A president who believes that Roe v. Wade, like Brown, #i established a particularly important constitutional safeguard is entitled to seek appointees who support that safeguard. Roe has many critics, but it has been reaffirmed by the court many times -- even reaffirmed by three of the five justices appointed by Ronald Reagan and George Bush, who concluded last year that overturning Roe "would subvert the court's legitimacy" and "the nation's commitment to the rule of law."

After that case, if not before, abortion rights entered the firmly established constitutional canon.

Even a president who is uncertain whether Roe was correctly decided initially would have strong reasons to think it should be followed as precedent, not simply to preserve its social benefits but also to protect the court's legitimacy and to protect the country from the political turmoil that overturning Roe would unleash.

Even so, Mr. Clinton has made an appropriate distinction protective of judicial integrity: Although he stated he would appoint justices who support abortion rights, he has also said he "will not ask any potential Supreme Court nominee how he or she will vote in any particular case."

Any future case will have unique features and involve litigants' interests that must be assessed in the crucible of a specific court proceeding. Indeed, a president must avoid appearing to ask for commitments whenever asking a candidate about her legal views, even general ones, since a judge must always be open to reconsidering her views.

Looking beyond abortion rights, the notion that justices should be named with indifference to their legal philosophy and constitutional views ignores how judicial decisions are inescapably made.

At one time, perhaps, decisions were seen as merely logical deductions from clear and agreed upon legal premises. Today, we recognize judges' leeway, particularly on the Supreme Court, and we recognize that a justice's starting-point views and jurisprudential predispositions often are important in shaping what she understands the law to be and how she decides cases.

This emphatically does not mean decisions are simply personal and political preferences; the judicial role and method powerfully constrain judges and diminish the importance of individual viewpoints.

But individual views do matter and attention to a potential nominee's legal views and philosophy reflects this reality.

The challenge of both the appointments process and judging is to take account of the importance of individual judges' views without thoroughly politicizing or personalizing law.

This is the challenge facing the president in deciding how extensively to assess a potential justice's legal views and what questions to ask.

Supreme Court appointments cannot and should not be altogether divorced from the political process.

The appointment process is one of the few democratic controls on an unelected court that has broad leeway, whose members have life tenure and whose constitutional interpretations generally cannot be changed without a constitutional amendment.

The dilemma is how to assert some democratic control without undermining judicial independence.

Negotiating between those two values is difficult, and "democratic" excess is surely possible: A president might try to enact judicially a list of his supporters' favorite policy positions; politically vulnerable minority and individual rights might be devalued; commitments about future cases might be sought.

But assessing a candidate's views need not take this route and nothing President Clinton has said indicates he wants to use his appointment power to those ends.

Moreover, any president's capacity to shape the court in his image is limited by the infrequency of vacancies, by the Senate's advice and consent power and by the self-image of life-tenured judges as independent judges faithful to law.

Finally, presidents cannot know what the future's important issues will be. Using a "litmus test," Franklin D. Roosevelt appointed Hugo Black and Felix Frankfurter, who shared his constitutional vision of broad national power to regulate the economy -- the most important constitutional issue of the hour.

But when the central issues changed a few years later, Justices Black and Frankfurter became legendary antagonists.

And so they remained for the rest of their careers.

Paul Gewirtz is professor of constitutional law at Yale Law School.

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