Litmus test for justices? It demeans the court

Stephen L. Carter

April 29, 1993|By Stephen L. Carter

DURING the Reagan and Bush administrations, th Republicans systematically eroded federal courts' independence.

They did so by applying litmus tests to ensure that those who became judges -- particularly Supreme Court justices -- could be relied on to vote the way the conservatives preferred.

This was said to be necessary to balance years of what conservatives considered left-wing judicial activism.

Now that the Democrats hold power, President Clinton is under enormous pressure to continue the erosion, by replacing the retiring Justice Byron White with a nominee who can be counted on to vote the way liberals prefer.

Once more we are told balance is needed -- only this time, the president needs to balance 12 years of right-wing nominees.

It is impossible to seek "balance" except by naming individuals whose votes are predictable. But appointing justices who make up their minds before, not after, hearing arguments threatens judicial integrity and interferes with the court's proper functioning.

It was wrong for the Republicans to do it; it would be wrong if the Democrats do it.

In seeking a successor, Mr. Clinton should forgo litmus tests and turn to one of the many experienced federal or state appellate judges whose skills are respected across the political spectrum.

Since the collapse of Franklin Roosevelt's court-packing plan, liberals have taken the sensible position that it is not legitimate for presidents or senators to limit the court to justices who could be trusted to vote the party line.

In the '50s and '60s, quizzing nominees about their views on controversial cases was considered an excess of the far right.

When William Brennan was badgered by Sen. Joseph McCarthy about loyalty-security cases and Thurgood Marshall was interrogated by several segregationist senators about civil rights and criminal procedure cases, liberals were properly outraged that a nominee would be asked, even indirectly, about his likely votes.

Consequently, when the Reagan administration tried to turn the appointment process into a systematic search for nominees whose votes would please conservative constituents, liberals were ready with the principled opposition of half a century.

Now some Democrats seem to have decided that they like the Republican approach after all.

Nobody is so crass as to ask how a nominee will vote, but much of what will be asked is intended to get the information. We will not ask nominees whether they agree with Roe v. Wade but about their views on the right to privacy, as part of an effort to learn their "judicial philosophy" -- code for how they are likely to vote.

The search for information that will allow the prediction of votes is often justified by the argument that a president whose platform includes a vision of the court should be able to select justices who represent the views of those who elected him.

But this argument is potentially destructive of judicial independence. It is far from clear why the court should be so sensitive to changes in the political climate. Opposition to the popular will is part of what the courts are for.

Certainly there would have been no judicial assistance to the civil rights revolution had Roosevelt's, Harry S. Truman's or Dwight D. Eisenhower's nominees been screened by the president or Senate for fidelity to the commitment to civil rights shared by most Americans; segregation was America's way of life.

If Mr. Clinton allows himself to be persuaded that he should seek balance, some future conservative president will claim the same privilege, pointing to Clinton appointments as evidence -- and liberals will have no basis for principled opposition.

Certainly it is true that information is usually available from which it is possible to make educated guesses about how potential justices might vote. But to emphasize those predispositions as a prerequisite for appointment politicizes the court.

It is as if we have come to believe that constitutional meaning should be decided not by politically insulated justices but referendum.

Possibly we have come to rely so heavily on our courts to resolve searing moral dilemmas that we cannot avoid the intrusion of the electoral ethos in the appointment process. Perhaps toothpaste cannot be squeezed back into the tube.

But if our courts must inevitably become the captives of temporary political majorities, then judicial decisions become largess to be handed out by electoral victors. And if liberals decide to mimic the conservatives in judicial selection, the cycle will never end.

There will be less and less reason to treat the "opinions" of the courts as authoritative and no reason at all to grant the judges -- and justices -- life tenure.

Stephen L. Carter, professor at Yale Law School, is writing a book about the federal confirmation process.

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