10/18/2005: More Fun with Miers and Litmus Testing
The only way out of this mess is for GOP senators to ask — and to require Miers to answer, as a condition of confirmation — direct questions about her judicial philosophy and its application to concrete constitutional issues. Republicans should test Miers' core legal principles. And if she fails the test, or refuses to take it, they can vote against her.
The administration's stealth strategy assumes that it is improper for senators to ask, or for a nominee to answer, a question about Roe vs. Wade or any other substantive constitutional question. This has things exactly backward. The Constitution not only permits such questioning, it arguably requires it. Although the Constitution makes judges independent after appointment, it sets up an explicitly political appointment process before a judge is approved. Why on Earth would determining a nominee's approach to interpreting the Constitution be thought to be out of bounds, before giving her a lifetime appointment to do exactly that?
Is there any line of inquiry that the Constitution does not permit? Yes. It would be improper to try to exact a pledge as to how a nominee will rule in future cases. As long as the inquiry stops short of that, it does not violate the Constitution's protection of judicial independence, nor does it violate judicial ethics. Parties before the courts are entitled to judges who will consider their cases without bias. But they are not entitled to judges who have no views of the law. An open mind is one thing; an empty head is another.
We would go one step further. The most useful way of discovering a nominee's views is through "litmus tests." One question would yield the maximum information about a nominee's judicial philosophy (without requiring a commitment as to any future ruling): "What do you think of Roe vs. Wade"? The answer could explain her theory of constitutional interpretation, her views on the judicial invention of rights not set forth in the Constitution, her views on when courts should follow precedent, and her views about the judiciary's role in our constitutional system.
-- Michael Stokes Paulsen and John Yoo: Make Miers pass a 'litmus test'.
Hmmm, even John "Torture Memo" Yoo wants a "litmus test" of Conservative philosophy of Constitutional interpretation from Miers before confirming her to the Supremes.
Karen on 10.18.05 @ 08:31 AM CST