In Defense of Litmus Tests


Indianapolis, Indiana. -- Seemingly everyone in the mainstream agrees that to employ "litmus tests" on the nomination of Clarence Thomas to the Supreme Court would be inappropriate. A moment's reflection should show how empty this prejudice is.

By "litmus tests" I do not mean guarantees from a candidate that he will vote this way or that way on a potential case. To say nothing of its separation-of-powers implications, such a

guarantee would be wrong because all cases involve particular circumstances, and for a judge to guarantee his vote before he had heard all the evidence would be to compromise irreparably his integrity. I mean by "litmus tests" a clear and specific understanding of how a candidate would interpret the Constitution -- including, though by no means limited to, his opinions on past Supreme Court decisions.

One only has to think of the David Souter nomination. William Brennan's retirement presented President Bush with a golden opportunity to shape the future of the Court. And Mr. Bush, in an act of disappointing fecklessness, proceeded to squander that opportunity by nominating the only man in America who feared giving offense more than Mr. Bush did himself -- a candidate whose main virtue was that no one knew what he thought. The result, if his first term is a fair indicator, is a justice in the mode of Lewis Powell and Sandra Day O'Connor who simply can't seem to make up his mind.

Case by case, Justice Souter eschews principle and by a seemingly careful process of legal reasoning attempts to employ balance, compromise and discretion in order to arrive at an equitable decision. What is wrong with that approach is that it is often very difficult, if not impossible, to distinguish between an exercise of discretion and an unprincipled assertion of will.

Take Mr. Souter's comic concurrence in the recent Indiana nude dancing case. Using an unfortunate four-pronged test taken from an earlier Court decision, he came to the conclusion that nude rTC dancing "is subject to a degree of First Amendment protection" but was not protected speech because "in my view, the interest asserted by [the state] in preventing prostitution, sexual assault and other criminal activity . . . is sufficient . . . to justify the state's enforcement of the statute against the type of adult entertainment at issue here."

Note the "in my view." Rarely does one see a justice -- even unwittingly, as is the likely case here -- come so close to saying he was simply making it all up. Nowhere did he ask if free speech in a republican government, properly (or even improperly) understood, included nude dancing. He nowhere examined the possibility that speech is made free in a society such as ours so that people may reason with one another in order to decide public business in a thoughtful manner. Had he considered that, he might have been led to the conclusion that expression whose sole purpose is to inflame passion is not protected speech.

That Justice Souter wrote one bad opinion is not simply the point. (In fairness to Mr. Souter, the rest of the majority, excepting Justice Scalia, did not do much better.) Supreme Court Justices are only human (all too human, one is tempted to add), and they are bound to make mistakes. The point is that on the issue of free speech -- surely one of the most important issues of Constitutional controversy -- Justice Souter betrayed a fundamental misunderstanding of the meaning and purpose of the First Amendment.

What's more and what's worse, barring any basic change, we all most likely will have to live with Justice Souter's confused reading of the First Amendment for another 30 or so years. Is there not a responsibility on the part of the president (and the Senate) to make sure this sort of thing does not happen?

Does this mean a blatant "politicization" of the court and its constitutional role? Leaving aside the question of whether one can truly depoliticize what is inherently a political institution, why is it wrong to approach the judicial nominating process in terms of partisan principles. Of course, if one understands party government and partisanship in their narrowest terms, such an approach is indeed wrong because it may become an attempt to advance narrow interests through the means of the Constitution.

There is, however, as Professor Charles Kesler has argued, a more edifying understanding of the role of American parties in constitutional controversies.

Party government, as originally envisaged by its American Founders, was not meant to be a competition of organized and selfish or "partial" interests. Instead, parties such as Jefferson's Democrats and Hamilton's Federalists were formed on the quite forthright claims that they best understood what the principles of the Constitution demanded. Party members were understood to be partisans on behalf of the whole Constitution and the whole country. Such partisans claimed that they more truly represented the common good. Instead of looking on constitutional disputes as above mere politics they tried to raise everyday politics to the level of principled constitutional debate.

Today, we do not try to elevate politics in the same way. We somehow feel that neither of our parties truly represents the Constitution, that each is simply a vehicle for selfish interests. Thus, the dread at the prospect of the introduction of partisan principles and "litmus tests" into the judicial nominating process.

But the constitutional questions raised most often in speculation about a candidate's views -- abortion, affirmative action, capital punishment, freedom of speech, religious freedom -- are not about narrow and selfish interests but fundamental questions about what sort of country we should be.

And it is precisely because these questions are so fundamental to the character of our political order that we cannot treat them as if they were outside the scope of "mere politics." To so treat them is to reduce politics to the nether world of narrow partisan strife and disserves both politics and the public, to say nothing of the Constitution itself.

Steve Lenzner is a research analyst at the Hudson Institute.

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