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Supreme Court litmus test

jones

Senator Josh Hawley (R-Mo.) has come up with a keen idea for stacking the deck at the U.S. Supreme Court — he’ll refuse to vote for a Court nominee who has not taken a firm stand in favor of his specific pet policy position.

In a recent Washington Post interview, Hawley announced that he would “vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided.” He continued: “If there is no indication in their record that at any time they have acknowledged that Roe was wrong at the time it was decided, then I’m not going to vote for them — and I don’t care who nominates them.” He’ll show them!

My first thought was that he ought to check with a lawyer to see how his stance might square with professional ethics constraints applicable to lawyers and judges. I was dismayed to discover that he is a lawyer, a graduate of Yale Law School.

Hawley did say that he was “not looking for forecasts about how they may vote in the future or predictions.” Whew! At least he did not want to extract a blood oath to support his viewpoint on the issue, just to get certainty as to how they would vote.

I’ve been in the legal profession since 1967 — U.S. Senate staffer (1970-1973), Idaho Attorney General (1983-1991), Idaho Supreme Court Justice (2005-2017), private practitioner for 28 years — and never once had the need to make a record of whether I thought Roe was right or wrong at the time it was decided. From a practical standpoint, the universe of candidates who meet Hawley’s narrow litmus test is likely to be infinitesimal. Although, if Hawley’s idea catches on, we might see scads of young lawyers penning law review articles and op-eds designed to meet his appointment criteria.

The really troubling aspect of Hawley’s position is how it would further inflame the appointment process and impugn the integrity of the Supreme Court. If Hawley is using Roe as his sole criteria for seating a SCOTUS nominee, I suppose other Senators would be emboldened to impose their own narrow litmus tests — Citizens United (campaign finance), Heller (gun rights), Brown v. Board (racial discrimination).

The Supreme Court is already considered by most Americans to be a political policy-making body with little accountability. Hawley’s gambit would further erode the Court’s legitimacy and endanger the rule of law in the United States.

As it is, every vacancy on the U.S. Supreme Court sets off a political feeding frenzy in Washington and throughout the country. It is as if a new appointee is intended to be a super legislator, rather than an impartial arbiter of disputes between and among citizens and the government. The whole process is infused with political overtones. And it happens regardless of which party is in power.

Presidents nominate people whose political views align with their own on selected hot-button issues, disregarding the fact that the Court is expected to deal with a much broader range of issues. The tendency is to appoint younger people, without an identifiable track record, who can serve into their dotage, disregarding the fact that this excludes a large number of older, experienced lawyers with exemplary legal careers. The Senate confirmation process is a legal travesty that often produces untested ideologues rather than accomplished jurists.

The public increasingly views the Supreme Court as a mere extension of our dysfunctional political system and that is dangerous for our democracy. The last thing we need is a new type of litmus test on steroids like that advocated by Senator Hawley. There must certainly be other, less harmful ways for him to pander for political points with his constituency.

Jim Jones is a Vietnam combat veteran, former Idaho Attorney General and retired Justice of the Idaho Supreme Court.

[This opinion piece originally appeared in the St. Louis Post-Dispatch on 8-18-20.]
 

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