Fein, Bruce

Strossen, Nadine

English

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digitalcommons.nyls.eduFaculty Scholarship Articles & Chapters1993Supreme Court Nominations - Should PresidentClinton Apply a Litmus Test At IssueNadine StrossenNew York Law SchoolBruce FeinFollow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chaptersThis Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion inArticles & Chapters by an authorized administrator of DigitalCommons@NYLS.Recommended Citation79 A.B.A. J. 42 (1993)Supreme Court NominationsShould President Clinton apply a litmus test?As soon as election returns were in, thespeculation began over how many Supreme Courtvacancies President Bill Clinton would be able tofill during his four-year tenure: Would he be ableto reverse the pendulum that swung the HighCourt over to the right in the last 12 years?In statements made to this magazine andelsewhere, Clinton proclaimed his intention tonominate justices who were committed to"individual fights protected by our Constitution,including the right to privacy."All indications are that the litmus test forjudges in this administration will be the opposite ofthat of the previous one: A likelihood to preserveRoe v. Wade, rather than overturn it, will be thenew yardstick.Nadine Strossen, president of the AmericanCivil Liberties Union and a professor at New YorkLaw School, is comfortable with that particulartest, because she believes it will result in judgeswith a commitment to minority, rather thanmajoritarian, interests.Conservative commentator Bruce Fein,however, disagrees. He warns that any case-specific litmus test is dangerous and inevitablypoliticizes the judiciary.BY NADINE STROSSENIn the October 1992 ABA Jour-nal, Bill Clinton said he would nomi-nate as federal judges "only men andwomen [with] a demonstrated ...commitment to the individual rightsprotected by our Constitution, in-cluding the right to privacy."By contrast, the last two admin-istrations systematically named fed-eral judges with narrow views aboutindividual rights in general, who-consistent with Republican Partyplatforms-opposed Roe v. Wade,which recognized that the right toprivacy encompasses a woman's de-cision to have an abortion.Two justices who were appointedby these presidents voted in PlannedParenthood v. Casey to overturn Roealtogether. Three other Reagan-Bush appointees bitterly disappointedmany conservatives by refusing to goquite so far. Nevertheless, their opin-ion so sharply limited Roe that ChiefJustice Rehnquist mocked what re-mains of that important ruling as "amere facade."Ironically, many conservativeswho applauded the Reagan-Bush "lit-mus test" now criticize PresidentClinton for his pledge to name judgeswho will respect the essential pri-vacy right recognized in Roe. Theyprotest that it is inappropriate toseek to ascertain judicial candidates'views on issues they might well faceon the bench.42 ABA JOURNAL / FEBRUARY 1993Yes: A Solemn DutyTheir silence up until now sug-gests that their real quarrel is withthe specific nature of Clinton's judi-cial "litmus test," rather than withsuch tests generally. Would even themost adamant professed foe of "lit-mus tests" object, for example, to apresident's commitment to nominateonly judges who believed that theCourt's Dred Scott decision wronglyupheld slavery, or that its decision inBrown rightly invalidated segregatedpublic schools?Reveals Views on RightsUnder our constitutional sys-tem, all federal judges have substan-tial power to affect human rights.The Supreme Court, as the ultimateconstitutional interpreter, can eitherexpand or truncate the rights of allAmericans. This power is exercisedby judges with lifetime tenure, sub-ject to removal only through im-peachment. Therefore, the appoint-ment of a federal judge and espe-cially the appointment of a SupremeCourt justice-has vast consequencesfor years to come.In light of this, presidents havea responsibility to nominate, andsenators have a responsibility toconfirm, only women and men whomthey believe will uphold fundamen-tal constitutional rights.Although all government offi-cials swear to uphold the Constitu-tion, those who are elected by major-ity vote often reflect majoritarianinterests. In contrast, federal judges'lifetime appointments insulate themfrom politics and facilitate neutralprotection of all rights.For this reason, federal courtsare uniquely situated as the guardi-ans of individual and minority grouprights, Correspondingly, presidentsand senators have a duty to appointas federal judges only individualswho will fulfill that special role.These elected officials cannot carryout that duty unless they are famil-iar with the judicial candidates' viewsabout the nature of that role.Judicial candidates are, ofcourse, free to refuse to disclose anyof their views, or to assert that theyhave not formulated definitive opin-ions on particular issues. But thisraises questions about the credibilityand significance of any such asser-tions. A candidate's denial of anyfirm views on broad issues of consti-tutional philosophy and interpreta-tion addressed in Roe should be farmore troubling than the denial of anopinion on whether a specific restric-tion on abortion should survive con-stitutional muster.Judicial powers of interpreta-tion often are tantamount to thepower to restrict or expand the Con-stitution's reach. Our elected rep-resentatives should not vest suchlifelong power in any individual un-less they are satisfied that it will beexercised with respect for fundamen-tal rights. UNo: Don't Get Down to CasesBY BRUCE FEINPresident Bill Clinton's case-specific Roe v. Wade litmus test forSupreme Court nominees is worsethan President Franklin Roosevelt'sdiscredited court-packing scheme.Clinton should be emulatingPresident Abraham Lincoln. Whenhe nominated Salmon P. Chase aschief justice, the two burning con-stitutional issues of the day wereslavery and legal tender laws. Askedwhether his nominee would cast apolitically correct vote in such cases,Lincoln retorted: "We cannot ask aman what he will do, and if weshould, and he should answer us, weshould despise him for it."Last June, the Court reaffirmedRoe by a 5-4 margin in PlannedParenthood v. Casey. Spurred by avaulting ambition worthy of Shake-speare's Macbeth, Clinton instantlypandered to his pro-choice constitu-ency by vowing to extort from hisCourt nominees a commitment toRoe. He voiced no reservations aboutde facto coercion of Supreme Courtjustices by exploiting their ambitionfor appointment during the selectionprocess leading to nomination.Clinton's plan to annex the judi-ciary as a partisan arm of the execu-tive would subvert the legitimacy ofHigh Court rulings, enlightened law,and the ability of the judiciary tocheck the excesses of popular govern-ment. Even more lamentable, Jus-tice Harry Blackmun has endorsedClinton's benighted case-specific lit-mus test in his concurrence to Casey.As Justice Felix Frankfurtersaid in Offutt v. United States (1954),"[J]ustice requires the appearance ofjustice." That appearance is destroyedifjustices have committed their votesin the Oval Office in particular casesbefore hearing the litigants argue,deliberating with their colleagues,and enjoying the intellectual inde-pendence secured by life tenure. Theirvotes would smack of the Queen ofHearts' jurisprudence in "Alice's Ad-ventures in Wonderland": "Sentencefirst, verdict afterwards."Induces Political CorrectnessWithout the appearance of jus-tice, voluntary compliance with HighCourt decrees is problematical. Andthe rule of law would crumble ifevery controversial ruling requiredenforcement by bayonets A la LittleRock, Ark., after the Court's desegre-gation decisions.Clinton's promise of voting com-mitments would also debase the qual-ity of decision-making. When con-fronted with pledging a politicallycorrect vote, a nominee seduced byan ordinary amount of ambition isunlikely to proffer intellectually pureviews. The wish becomes father tothe thought. To paraphrase JusticeOliver Wendell Holmes, the lust forjudicial power "distorts the judg-ment," "makes what previously wasILLUSTRATION BY TIM TEEBKENclear seem doubtful," and bends "evenwell-settled principles of law."Specific constitutional decisionsshould not be warped by the unin-formed and result-oriented views ofthe president. That understandingwas a cornerstone in the defeat ofPresident Roosevelt's 1937 court-packing scheme.Roosevelt's maneuver was cor-rectly perceived as lethal to theCourt's independence and its checkagainst majoritarian tyranny. Con-gress decisively rejected the meas-ure, and the judgment of history hascondemned Roosevelt.If Presidents Ronald Reaganand George Bush had extracted prom-ises from their Supreme Court nomi-nees to overrule Roe, they wouldhave been properly denounced by themedia, and might properly have beenimpeached by the House and con-victed by the Senate. But Reaganand Bush renounced any case-spe-cific litmus tests, a fact corroboratedby the votes of Justices O'Connor,Kennedy and Souter to reaffirm Roelast June.Presidential inquiry into thephilosophies of Supreme Court can-didates is unobjectionable, even ifthe responses give clues as to votingin prospective cases. That is a time-honored practice that has not com-promised judicial independence. Case-specific inquiries, in contrast, wouldbreach that delicate wall of separa-tion between law and politics. UABA JOURNAL / FEBRUARY 1993 43

Supreme Court Nominations - Should President Clinton Apply a Litmus Test At Issue

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Supreme Court Nominations - Should President Clinton Apply a Litmus Test At Issue

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