Tuesday, August 16, 2005

One way litmus test

Soon, the United States Senate will begin its confirmation hearings for John Roberts, the President's nominee to replace Justice O'Connor on the High Court. Once the hearings begin, we will surely hear a chorus of liberal pundits decrying the conservatives' so-called litmus test on abortion.

The Banshee is here to dispel that myth. If anyone has a litmus test for Supreme Court nominees on the issue of abortion, it is liberals.

First of all, let me say that I do not think that there is anything wrong with either side of the debate having a litmus test for judicial nominees. Nominating justices for the Supreme Court is one of the President's most important duties. After all, it is one of the few duties that is specifically outlined in the Constitution. Voters know that this is the President's job and can certainly take that into account when casting their ballots every four years. I would never expect a pro-choice President to nominate a pro-life justice. Why should anyone expect that a pro-life President should nominate a pro-choice justice?

However, I appear to be a minority in this viewpoint. Political pundits basically accept it as true that a pro-life litmus test is somehow inappropriate. But, this pro-life litmus test is really a myth. No one would argue that a President should choose a judge who does not have a judicial philosophy that matches his own. Conservatives tend to be strict constructionists. When it comes to the Supreme Court, this means that they believe justices should look at what is actually written in the text of the Constitution and apply those words to the cases before them. This philosophy will tend to lead to "pro-life rulings." Regardless of whether you think abortion is good policy or not, if you look strictly at the words in the Constitution, you will not find a right to abortion on demand.

In contrast, liberals tend to view the Constitution as a living document. In other words, the actual text does not matter all that much. Instead, under this philosophy, a justice should look at the spirit of what the Founders wrote and apply that to the morals and society of today. Operating under this philosophy, a litmus test on abortion is absolutely necessary. After all, under this philosophy, there is no real overriding principle that guides any given judicial decision. Therefore, a pro-choice President must inquire into each important issue in order to have any idea how a prospective justice might rule on that issue. Abortion would be chief among those issues.

Liberals and conservatives will both tend to nominate justices that agree with their positions on abortion. Conservatives seek to accomplish this by nominating justices who agree with their judicial philosophy. It should be noted that neither Reagan nor Bush 41 were particularly succesful in putting pro-lifers on the bench. Liberals, however, use a true litmus test when it comes to making nominations for the High Court and have yet to fail.