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1993 Supreme Court Nominations - Should President Clinton Apply a Litmus Test At Issue Nadine Strossen New York Law School

Bruce Fein

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Recommended Citation 79 A.B.A. J. 42 (1993)

This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. Supreme Court Nominations Should President Clinton apply a litmus test? As soon as election returns were in, the that of the previous one: A likelihood to preserve speculation began over how many Supreme Court Roe v. Wade, rather than overturn it, will be the vacancies President would be able to new yardstick. fill during his four-year tenure: Would he be able Nadine Strossen, president of the American to reverse the pendulum that swung the High Union and a professor at New York Court over to the right in the last 12 years? Law School, is comfortable with that particular In statements made to this magazine and test, because she believes it will result injudges elsewhere, Clinton proclaimed his intention to with a commitment to minority, rather than nominate justices who were committed to majoritarian, interests. "individual fights protected by our Constitution, Conservative commentator Bruce Fein, including the right to privacy." however, disagrees. He warns that any case- All indications are that the litmus test for specific litmus test is dangerous and inevitably judges in this administration will be the opposite of politicizes the judiciary.

Yes: A Solemn Duty BY NADINE STROSSEN Their silence up until now sug- interests. In contrast, federal judges' gests that their real quarrel is with lifetime appointments insulate them In the October 1992 ABA Jour- the specific nature of Clinton's judi- from politics and facilitate neutral nal, Bill Clinton said he would nomi- cial "litmus test," rather than with protection of all rights. nate as federal judges "only men and such tests generally. Would even the For this reason, federal courts women [with] a demonstrated ... most adamant professed foe of "lit- are uniquely situated as the guardi- commitment to the individual rights mus tests" object, for example, to a ans of individual and minority group protected by our Constitution, in- president's commitment to nominate rights, Correspondingly, presidents cluding the right to privacy." only judges who believed that the and senators have a duty to appoint By contrast, the last two admin- Court's Dred Scott decision wrongly as federal judges only individuals istrations systematically named fed- upheld slavery, or that its decision in who will fulfill that special role. eral judges with narrow views about Brown rightly invalidated segregated These elected officials cannot carry individual rights in general, who- public schools? out that duty unless they are famil- consistent with Republican Party iar with the judicial candidates' views platforms-opposed Roe v. Wade, Reveals Views on Rights about the nature of that role. which recognized that the right to Under our constitutional sys- Judicial candidates are, of privacy encompasses a woman's de- tem, all federal judges have substan- course, free to refuse to disclose any cision to have an abortion. tial power to affect human rights. of their views, or to assert that they Two justices who were appointed The Supreme Court, as the ultimate have not formulated definitive opin- by these presidents voted in Planned constitutional interpreter, can either ions on particular issues. But this Parenthoodv. Casey to overturn Roe expand or truncate the rights of all raises questions about the credibility altogether. Three other Reagan- Americans. This power is exercised and significance of any such asser- Bush appointees bitterly disappointed by judges with lifetime tenure, sub- tions. A candidate's denial of any many conservatives by refusing to go ject to removal only through im- firm views on broad issues of consti- quite so far. Nevertheless, their opin- peachment. Therefore, the appoint- tutional philosophy and interpreta- ion so sharply limited Roe that Chief ment of a federal judge and espe- tion addressed in Roe should be far Justice Rehnquist mocked what re- cially the appointment of a Supreme more troubling than the denial of an mains of that important ruling as "a Court justice-has vast consequences opinion on whether a specific restric- mere facade." for years to come. tion on abortion should survive con- Ironically, many conservatives In light of this, presidents have stitutional muster. who applauded the Reagan-Bush "lit- a responsibility to nominate, and Judicial powers of interpreta- mus test" now criticize President senators have a responsibility to tion often are tantamount to the Clinton for his pledge to name judges confirm, only women and men whom power to restrict or expand the Con- who will respect the essential pri- they believe will uphold fundamen- stitution's reach. Our elected rep- vacy right recognized in Roe. They tal constitutional rights. resentatives should not vest such protest that it is inappropriate to Although all government offi- lifelong power in any individual un- seek to ascertain judicial candidates' cials swear to uphold the Constitu- less they are satisfied that it will be views on issues they might well face tion, those who are elected by major- exercised with respect for fundamen- on the bench. ity vote often reflect majoritarian tal rights. U 42 ABA JOURNAL / FEBRUARY 1993 No: Don't Get Down to Cases BY BRUCE FEIN tice Harry Blackmun has endorsed clear seem doubtful," and bends "even Clinton's benighted case-specific lit- well-settled principles of law." President Bill Clinton's case- mus test in his concurrence to Casey. Specific constitutional decisions specific Roe v. Wade litmus test for As Justice Felix Frankfurter should not be warped by the unin- Supreme Court nominees is worse said in Offutt v. United States (1954), formed and result-oriented views of than President Franklin Roosevelt's "[J]ustice requires the appearance of the president. That understanding discredited court-packing scheme. justice." That appearance is destroyed was a cornerstone in the defeat of Clinton should be emulating ifjustices have committed their votes President Roosevelt's 1937 court- President Abraham Lincoln. When in the Oval Office in particular cases packing scheme. he nominated Salmon P. Chase as before hearing the litigants argue, Roosevelt's maneuver was cor- chief justice, the two burning con- deliberating with their colleagues, rectly perceived as lethal to the stitutional issues of the day were and enjoying the intellectual inde- Court's independence and its check slavery and legal tender laws. Asked pendence secured by life tenure. Their against majoritarian tyranny. Con- whether his nominee would cast a votes would smack of the Queen of gress decisively rejected the meas- politically correct vote in such cases, Hearts' jurisprudence in "Alice's Ad- ure, and the judgment of history has Lincoln retorted: "We cannot ask a ventures in Wonderland": "Sentence condemned Roosevelt. man what he will do, and if we first, verdict afterwards." If Presidents should, and he should answer us, we and George Bush had extracted prom- should despise him for it." Induces Political Correctness ises from their Supreme Court nomi- Last June, the Court reaffirmed Without the appearance of jus- nees to overrule Roe, they would Roe by a 5-4 margin in Planned tice, voluntary compliance with High have been properly denounced by the Parenthood v. Casey. Spurred by a Court decrees is problematical. And media, and might properly have been vaulting ambition worthy of Shake- the rule of law would crumble if impeached by the House and con- speare's Macbeth, Clinton instantly every controversial ruling required victed by the Senate. But Reagan pandered to his pro-choice constitu- enforcement by bayonets A la Little and Bush renounced any case-spe- ency by vowing to extort from his Rock, Ark., after the Court's desegre- cific litmus tests, a fact corroborated Court nominees a commitment to gation decisions. by the votes of Justices O'Connor, Roe. He voiced no reservations about Clinton's promise of voting com- Kennedy and Souter to reaffirm Roe de facto coercion of Supreme Court mitments would also debase the qual- last June. justices by exploiting their ambition ity of decision-making. When con- Presidential inquiry into the for appointment during the selection fronted with pledging a politically philosophies of Supreme Court can- process leading to nomination. correct vote, a nominee seduced by didates is unobjectionable, even if Clinton's plan to annex the judi- an ordinary amount of ambition is the responses give clues as to voting ciary as a partisan arm of the execu- unlikely to proffer intellectually pure in prospective cases. That is a time- tive would subvert the legitimacy of views. The wish becomes father to honored practice that has not com- High Court rulings, enlightened law, the thought. To paraphrase Justice promised judicial independence. Case- and the ability of the judiciary to Oliver Wendell Holmes, the lust for specific inquiries, in contrast, would check the excesses of popular govern- judicial power "distorts the judg- breach that delicate wall of separa- ment. Even more lamentable, Jus- ment," "makes what previously was tion between law and politics. U

ILLUSTRATIONBYTIM TEEBKEN ABA JOURNAL / FEBRUARY 1993 43