A Constitutional Litmus Test

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . Judges of the Supreme Court."
United States Constitution, Article II, section 2

In an interview published in the Octoer 1992 ABA Journal, President-elect Bill Clinton expressed his "reverence for the role that federal judges play in our system as. . . protectors of constitutional rights." Accordingly, he said that he would nominate to the federal bench "only men and women [with] a demonstrated concern for, and commitment to, the individual rights protected by our constitution, including the right to privacy." He criticized Presidents Reagan and Bush for apointing federal judges "who shared their restrictive view of constitutional rights," and pledged to "strive to bring the federal courts back toward their traditional role as guardians of constitutional rights."

These statements were immediately criticized by many conservatives for creating an inappropriate "litmus test" for judicial nominees. SinceClinton's election and Justice Byron White's resignation from the Supreme Court, this complaint has intensified. The stakes for conservatives are enormous, since Clinton could conceivably name several new justices. Having used its own tenure to bequeath a conservative Court, the right evidently seeks to redefine the rules and invoke an alleged high ground that it disdained while in office, in the hope of browbeating Clinton into naming "at worst" moderates. For example, conservative commentator Bruce Fein, who was an official in the Reagan Justice Department, recently protested that "specific constitutional decisions should not be warped by the uninformed and result-oriented views of the president."

This of course is more than a little ironic, for Fein and others who assail what they deride as President Clinton's litmus test for federal judges--namely, support for human rights including privacy--supported precisely the opposite test for judicial appointments during the Reagan-Bush years. The Reagan and Bush years were notable for their extreme politicization of the federal courts. Indeed, judicial appointments were viewed as gifts to a hard-core right wing that found other Reagan-Bush policies insufficiently pure. Thus their newly voiced protestations about the inappropriateness of inquiries into the constitutional philosophies of potential federal judicial appointees ring hollow.

Beyond this rather transparent tactical opportunism, however, lies a serious issue. How properly "political" is the Supreme Court? Is it reasonable for presidents, with the advice and consent of the Senate, to appoint justices who reflect their own constitutional philosophies? At some point does the politicization of the Court detract from its legitimacy as an institution? Or, is the Court inherently, inescapably "political," thus making it desirable, or even necessary, for the president and the Senate to consider candidates' judicial philosophies?

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Ideological screening in the federal judicial nomination process was intense during the Reagan-Bush years, and conservatives who decry any effort to select judges based on their constitutional views are simply hypocritical. A judicial candidate's constitutional and judicial philosophy are so material to the nomination and confirmation decisions that it would be irresponsible for the president and senators not to consider them.

This conclusion is supported by three factors: the plain language of the Constitution's appointment clause; the history underlying the adoption of that clause at the 1787 Constitutional Convention; and the overall structure of the Constitution--in particular, its separation of powers among the legislative, executive, and judicial branches of the federal government, and its insulation of the federal judiciary from majoritarian pressures.

Another of the many ironies that pervade the current debate about the federal judicial selection process is that those three factors have been touted by conservatives as the most legitimate bases for interpreting the Constitution. For example, while he was Attorney General, Ed Meese argued that constitutional interpretation must adhere strictly to the "original intent" of the Constitution's framers. Yet, Meese now joins other conservatives in objecting to the evaluation of federal judicial candidates' constitutional views by the president and the Senate, despite the fact that such evaluation is sanctioned both by the relevant constitutional text and by the intent of its framers.

In contrast with President Clinton's vision of the federal judiciary as "guardians of constitutional rights," Presidents Reagan and Bush systematically named federal judges with narrow views about individual rights in general, and who specifically opposed the Supreme Court's 1973 ruling in Roe v. Wade, which found the implied constitutional right of privacy to include a woman's decision whether to carry a pregnancy to term. These appointments were consistent with planks in the Republican Party platforms in 1980, 1984, and 1988 (as well as 1992), which called for the appointment of federal judges who opposed Roe and who would exercise "judicial restraint" when litigants asked them to interpret the Constitution to secure human rights.

During the Reagan administration, all federal judicial nominees had to undergo high-level ideological screening, including an interview with Grover Rees III, Attorney General Edwin Meese's Special Assistant for judicial selection. A 1985 Newsweek article reported:

Rees. . . screens potential nominees for ideological irregularity; no names go to the White House before passing by him. And most of the men--few women have advanced that far--who come in for the mandatory interview know how to make sympathetic sounds. The first thing they often say to Rees is `pleased to meet you.' And the second: `Roe v. Wade . . . was wrongly decided.'

Especially in view of its inability to push aspects of its so-called "social issues agenda" through Congress--for example, constitutional amendments overturning Roe and permitting official prayer in public schools--the Reagan administration put the highest priority on reshaping the federal judiciary into a force for, in turn, reshaping constitutional law. These concerted efforts contradicted conservatives' longstanding protest, in criticizing pro-human rights rulings of the Warren and Burger Courts, that the federal courts should not be "activist" policy-making institutions. This stringent ideological screening continued through the Bush administration.

Recently published research--the first analyses of the rulings of Reagan-Bush federal court appointees--shows that the concerted efforts to pack the federal courts with conservative judges during the past twelve years had a marked impact in shifting these courts to the right. These findings, in the April-May 1993 current issue of Judicature (the journal of the American Judicature Society) show that both Presidents Reagan and Bush made good on their promises to remold the federal bench into one that is less expansive in interpreting individual rights and less likely to rule in favor of civil rights claimants.

In light of the Reagan-Bush anti-Roe criterion for federal judicial appointees, it is not surprising that three justices who were appointed or elevated by these presidents--Chief Justice Rehnquist, and Justices Scalia and Thomas--voted in the Court's June, 1992 decision in Planned Parenthood v. Casey to overturn Roe altogether. Three other Reagan-Bush appointees--Justices O'Connor, Kennedy, and Souter--disappointed many conservatives by refusing to go quite so far. Nevertheless, their Casey opinion so sharply limited Roe's reach that Chief Justice Rehnquist noted: "Roe continues to exist, but only in the way a storefront on a Western movie set exists: a mere facade to give the illusion of reality. Decisions [implementing] Roe ... are frankly overruled."

It is painfully obvious that the conservatives' newfound opposition to "litmus tests" stems not from a principled opposition to inquiries into judicial philosophy, but from the specific nature of the tests that President Clinton is likely to apply. Would even the most adamant professed foe of judicial "litmus tests" object, for example, to a president's commitment to nominate only judges who believed that the Court's Dred Scott decision wrongly upheld slavery, or that its decision in Brown v. Board of Education rightly invalidated racially segregated public schools?

The change-of-heart that many conservatives have had about presidential consideration of judicial nominees' constitutional philosophies, now that there has been a philosophical change in the White House, is nicely illustrated by Bruce Fein's shifting pronouncements. In 1985, Fein defended the administration's effort to change policy by changing the composition of the federal courts. Indeed, he characterized this effort as a matter of necessity. He said: "It became evident after [Ronald Reagan's] first term that there was no way to make legislative gains in many areas of social and civil rights. The president has to do it by changing the jurisprudence."

Yet, now that Bill Clinton--rather than Ronald Reagan or George Bush--has the power to nominate federal judges, Fein has changed his tune. In an exchange with me in the February, 1993 ABA Journal, Fein heaped vitriol on President Clinton for pledging to take into account the very kinds of considerations about anticipated judicial rulings that Fein previously had said President Reagan had to take into account. For example, in his new-found zeal to preclude presidential views about constitutional issues from factoring into the nomination process, Fein made the following statements in February, 1993:

Spurred by a vaulting ambition worthy of Shakespeare's Macbeth, Clinton . . . pandered to his pro-choice constituency by vowing to extort from his Court nominees a commitment to Roe. He voiced no reservations about de facto coercion of Supreme Court justices. . . . Clinton's plan to annex the judiciary as a partisan arm of the executive would subvert the legitimacy of High Court rulings, enlightened law, and the ability of the judiciary to check the excesses of popular government.

Directly contrary to Fein's characterization, though, the judicial selection criteria that Bill Clinton has enunciated would honor the federal courts' designated role in our constitutional system as the ultimate bulwark against majoritarian excesses that threaten rights of individuals and minorities. For that reason, it is not only permissible for him and the Senate to evaluate judicial candidates pursuant to these criteria, but it is also incumbent upon them to do so.


The Constitution's appointment clause, quoted at the outset of this article, clearly confers upon the president unfettered discretion to name federal judges of his choosing, subject to the Senate's "advice and consent." It specifies no minimal criteria or essential qualifications for such judges -- in contrast, for example, to the constitutional provisions specifying minimum ages for the president, congressional representatives and senators, and also in contrast to the constitutional requirement that the president be a natural-born United States citizen.

The Constitution's conferral upon the president of open-ended discretion in naming federal judges is underscored by the fact that the very same clause applies to his nomination of "Ambassadors, other public Ministers and Consuls, . . . and all other Officers of the United States. . . ." Surely no one would quarrel with the proposition that it is eminently appropriate for the president to consider the views of his cabinet officers and other top appointees. Likewise, by including the president's power to nominate federal judges in the same constitutional provision, and by failing to set out any limits on that power, the constitutional text indicates that the president's judicial nominations could also appropriately take the nominees' views into account.

The Constitution is as silent about criteria for the Senate's confirmation decision as it is about those for the president's initial nomination. Accordingly, the text assigns the Senate as open-ended a discretion in the confirmation process as it assigns the president in the nomination process. In exercising that discretion, it is as appropriate for the Senate to consider a candidate's constitutional and judicial philosophy as it is for the president to do so.

The Senate's concurrent role in the judicial selection process is also confirmed by the proceedings at the 1787 Constitutional Convention which led to the adoption of the appointment clause. Indeed, until the final days of the Convention, the proposed constitutional text gave the Senate--or, in some versions, the Senate and the House of Representatives--the sole power to appoint federal judges, including Supreme Court Justices.

In contrast, the delegates roundly rejected all attempts to confer this power on the President alone. Referring to the significant separation of powers concerns implicated by the judicial appointment process, Virginia delegate George Mason said that an exclusively presidential appointment power constituted "a dangerous prerogative" that "might even give him an influence over the Judiciary Department itself."

Only near the end of the Convention did the delegates agree to give the president any role at all in the judicial selection process, by adopting the current appointment clause. This last-minute concession to delegates arguing for some presidential role was clearly intended to maintain the Senate's central role. Pennsylvania delegate Gouverneur Morris paraphrased the final provision as giving the Senate the power "to appoint judges nominated to them by the president."

The foregoing history makes clear that the Constitution's framers intended the Senate to exercise independent judgments about the qualifications of presidential nominees to the federal bench. In short, in the phrase of Yale law professor Paul Gewirtz, the president and the Senate should have a "partnership" relationship in the judicial appointment process. Structural aspects of the Constitution dictate that, in fulfilling their respective roles in the process, each of these partners should consider candidates' constitutional and judicial philosophies.

Maintaining the independence of the federal judiciary is consistent with the Constitution's general scheme for separating powers among the three branches of government. This scheme was viewed as an essential aspect of limiting governmental power, and hence promoting individual liberty. Maintaining the independence of the judicial branch is especially important for another reason, too: the Constitution deliberately insulated the federal courts from the majoritarian pressures that are reflected in the elected branches of our government, so that they could prevent these branches from subjecting individuals or minority groups to "tyranny by the majority."

The judicial branch's independence is most effectively fostered by maintaining the strong partnership roles of both the president and the Senate in the appointment process. Only a central Senate role averts the presidential "influence over the Judiciary Department" that George Mason warned against during the Constitutional Convention. Moreover, as University of Chicago law professors David Strauss and Cass Sunstein recently observed, since the federal courts frequently "must mediate conflicts between the President and the Congress, one party to [such] conflicts should not have the dominant role in choosing the mediator."

Many of the Constitution's rights-protective provisions contain open-ended, ambiguous terms that afford significant interpretion. Therefore, through their interpretations of these clauses, all federal judges have substantial discretionary power to affect human rights. In particular, the Supreme Court, as the ultimate interpreter of the U.S. Constitution, can either expand or truncate the rights of all Americans. This critically important power is exercised by judges with lifetime tenure, subject to removal only through the extraordinary impeachment process, on very limited grounds. Therefore, the appointment of a federal judge--and especially the appointment of a Supreme Court justice--has vast consequences for all rights in the U.S., for many years to come.

Presidents serve for only four or eight years yet, throughout our history, the average length of service for a Supreme Court justice has been over 15 years, almost twice the maximum presidential term. And many Supreme Court justices and other federal judges have served far longer. For example, a dozen Supreme Court justices had tenures exceeding 30 years. Presidents' judicial appointments thus continue to exert influence far beyond their own tenure in office and may well be their most enduring legacy.

Although all government officials take an oath to uphold the Constitution, officials who are elected by majority vote often reflect the majoritarian interests to which they are accountable. In contrast, the Constitution structures the federal judiciary to insulate it from the political sphere, facilitating its neutral protection of all rights, including those of unpopular individuals and minority groups. In addition to Article III's provision specifying that federal judges' tenure extends "during good Behaviour," and Article II's that they may be removed only through "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors," federal judges are also sheltered from majoritarian pressures through another provision in Article III: its guarantee that their "Compensation . . . shall not be diminished during their Continuance in Office."

As Bill Clinton indicated in his 1992 interview with the ABA Journal, under the foregoing constitutional design, federal judges are uniquely situated as the guardians of individual and minority group rights. Correspondingly, presidents and senators have a duty to appoint as federal judges only individuals who will fulfill that constitutional role. These elected officials cannot carry out that duty unless they are familiar with the judicial candidates' views about the nature of that role. As stated in the American Civil Liberties Union's policy on Supreme Court nominees:

The United States Senate has a concurrent role with the President in appointing Supreme Court Justices. In exercising its constitutional responsibilities, the Senate has an obligation to examine a nominee's views of the function of the judiciary and its role in protecting civil liberties, and to require a nominee to explain and elaborate upon those views during hearings on the nomination.

Judicial candidates are, of course, free to refuse to disclose any of their views, or to assert that they have not formulated definitive opinions on particular issues. Presidents and senators then must assess the significance and credibility of any such assertions. For example, candidates' assertions that they have no firm views on the broad issues of constitutional philosophy and interpretation addressed in Roe--or, indeed, that they have never discussed Roe, as Clarence Thomas testified--should be far more troubling than assertions that they have no firm views on whether a specific restriction on abortion should pass constitutional muster.

Judges should rule on issues in light of the full factual context in which they arise in actual cases. Therefore, judicial candidates should not be asked to predict their rulings on particularly abstract issues, devoid of the necessary context. Instead, the goal of the president's and senators' inquiries should be to discern general jurisprudential approaches. Accordingly, candidates' views on specific cases and issues are significant only to the extent that they illuminate broader philosophical patterns and should not be given substantial weight in isolation.

Notwithstanding his vituperative general rhetoric denouncing Clinton's vow to appoint only rights-supportive judges, even Fein in the end objects only to "case-specific inquiries." In contrast, he does not object to "presidential inquiry into the philosophies of Supreme Court candidates, even if the responses give clues as to voting in prospective cases." To the contrary, Fein acknowledges that such an inquiry "is a time-honored practice that has not compromised judicial independence."

Candidates' statements during confirmation hearings constitute less sound bases for evaluating their commitment to the federal courts' role as protectors of human rights than do their pre-nomination records. Accordingly, both the president and the Senate should focus on those records, including any previous judicial rulings, any publications or public statements, and any relevant actions. Moreover, at least for the Supreme Court, the burden of proof should be on the candidate to demonstrate this critical qualification for such an important life-tenured position; therefore, any candidate who has no substantial past record establishing the requisite commitment should not be approved.

President Abraham Lincoln recognized the importance of appointing only candidates whose past records substantiate their understanding of the federal courts' responsibilities to uphold human rights. Ironically, Lincoln made this point in a statement that has been quoted--actually, only partially and misleadingly quoted--by Fein and others who have denounced President Clinton's pro-human-rights "litmus test" for his judicial appointees. For example, in his piece in the February, 1993 ABA Journal, Fein wrote:

Clinton should be emulating President Abraham Lincoln. When he nominated Salmon P. Chase as chief justice, the two burning constitutional issues of the day were slavery and legal tender laws. Asked whether his nominee would cast a politically correct vote in such cases, Lincoln retorted: "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it."

In purporting to quote Lincoln, though, Fein neglected to include the sentence immediately following the one he did quote; after observing that no question about a candidate's views should be asked or answered, Lincoln went on: "Therefore, we must take a [person] whose opinions are known." In this respect, Clinton should follow Fein's advice and emulate Lincoln.

In the end, what protects the Supreme Court from undue politicization is the balance of influence between the executive and legislative branches that the Founders wisely injected into the appointment process, and not disingenuous, misguided denial by either branch that the nominee's judicial philosophy matters. On several occasions, the Senate refused to confirm Reagan nominees with a demonstrated hostility to judicially protected human rights. Indeed, given the divided party government of most of the Reagan-Bush era and the extreme right-wing tilt of so many judges nominated during that era, the Senate probably should have asserted its prerogative--indeed its responsibility--to assure a federal judiciary respectful of human rights in more cases. With his slender working majority in the Senate, Clinton will be deterred by the same Constitutional dynamics from nominating judges of extreme views. But he has an obligation to consider the constitutional philosophy of any judicial candidate.

Given the Constitution's open-textured language, judicial power to interpret it often is tantamount to the power to restrict or expand the Constitution's reach. As our elected representatives, the president and all senators bear a weighty responsibility to "us, the people" not to vest such awesome, lifelong power in any individual unless they are satisfied that it will be exercised with respect for fundamental human rights. If that is a litmus test, so be it.

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