Posted on February 29, 2016
Let Us Litmus
Judicial nominees must be held to standards
To the dismay of conservatives everywhere, President Obama will appoint a successor to the late Supreme Court Justice Antonin Scalia. Just as surely, there will be calls from the Democrats and therefore from the news media that Republican senators refrain from applying a “litmus test” to the nominee. It’s an absurd expectation, with which the Jellyphants of the GOP often absurdly comply.
You might remember conducting a litmus test in middle school science class, by applying a substance to a piece of litmus paper, and discovering from the color of the paper whether that substance was an acid or a base. What is called a litmus test regarding judicial nominees is a similar exercise, in which a judge’s philosophy is applied to one of various touchstone issues, in order to determine whether that judge is qualified to be entrusted with interpreting the Constitution. Isn’t that exactly what the senators should be doing?
“Litmus test” is just another term for a standard, and anyone who opposes the application of standards to Supreme Court nominees is either a nincompoop or a scoundrel. Confirmation of the wrong nominee would threaten to deprive us of our most fundamental constitutional rights. After decades of treating liberal judges with all the scrutiny that one might give an applicant to culinary school, the Jellyphants now profess to appreciate the gravity of their situation. If that’s true, they should be willing to establish the following series of litmus tests, in advance of Obama’s appointment.
* If you claim that a right to abortion exists anywhere in the Constitution, you are already making things up to advance your own policy preferences, and therefore must be rejected.
* If you fail to recognize “the right of the people to keep and bear Arms shall not be infringed” as an independent clause, but instead think that right is contingent upon one’s belonging to a militia, you do not understand English well enough to interpret our nation’s laws.
* If you perceive the Constitution as a living, breathing document, then you’ve spent entirely too much time before the wrong kind of bar to qualify for a seat on the Supreme Court.
* If you think the general welfare clause empowers Congress to redistribute wealth through those programs we call “welfare,” you are disqualified.
* If you interpret “commerce” not as the large-scale trading of commodities, but instead as any scenario in which a dollar might change hands, your nomination must be rejected.
* If you believe in the anti-constitutional, anti-federalist concept of “incorporation,” by which restrictions on federal power are applied to all levels of government, even when the Constitution explicitly distinguishes between them as it does in the first Amendment, you are unacceptable.
* If you think a punishment violates the Eighth Amendment if it is either cruel or unusual, and not just if it is both cruel and unusual, then you need to be sent to Conjunction Junction for a remedial course.
* If you think the government is allowed to violate the Constitution if it has a “compelling interest” to do so, you should be compelled to take interest in another line of work.
* If, like David Souter, you cannot be bothered to get a clean shave for your confirmation hearings, but instead show up in the Senate chamber looking like Barney Rubble, then you have demonstrated that your judgment cannot be trusted.
* If you would argue that by coining the term “independent judiciary,” our founders meant the courts should not be subject to constitutional checks and balances, you are already announcing your intention to exceed your authority, and must therefore be stopped.
* If you’ve ever asserted a Ninth Amendment right, as the Court did in Roe v. Wade, then you must be prevented from acting on that belief, for the simple reason that there are no such things as Ninth Amendment rights.
* If you think the specific Fourth Amendment rights to be secure in our persons, houses, papers and effects against unreasonable searches and seizures have melded over time into a generalized “right to privacy,” then what you are practicing is linguistic alchemy, not law.
* If you think judges should be able to amend the Constitution by rephrasing it in their opinions, as the Court did in the Kelo eminent domain case by changing “public use” to “public purpose,” then you cannot be entrusted with that kind of power.
* If you believe the three-fifths clause denied the full personhood of black people, or that the Constitution has ever contained any language condoning slavery, you’ve never bothered to read the document, and the Supreme Court is no place for on-the-job training.
* If you agree with Stephen Breyer that American law may be judged by foreign precedents, including those from the same Zimbabwean supreme court that approved Robert Mugabe’s murderous “land reform” program, then not only shouldn’t you be on our Supreme Court, but you should be forbidden for your own safety from even handling a gavel.
* If you agree with the majority opinion from Planned Parenthood v. Casey that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” your nomination should never be confirmed, unless you’ve been nominated for induction to the Dingbat Hall of Fame.
* If you are now or have ever been a member of the ACLU, you have already failed most of the tests listed here, but just in case there’s still any question, GO AWAY!
In the unlikely event that Obama appoints someone who passes all these litmus tests, that nominee ought to be swiftly and overwhelmingly confirmed. If, on the other hand, the Jellyphants back away from their defiant pose, and once again accept the premise that applying standards is unfair, then they may soon discover that there are litmus tests for reelection to the Senate, too.
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