Do Supreme Court Justices Need Litmus Test?

The executive branch isn’t the only thing on the line during the 2016 Presidential election. The judiciary—in particular the U.S. Supreme Court—is too, panelists said at a Nov. 12 Federalist Society event.

According to its website, the Federalist Society is a “group of conservatives and libertarians interested in the current state of the legal order.”

During the next president’s first term, four justices—Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Ruth Bader Ginsburg—will be in their 80s, CBS News political correspondent Jan Crawford said.

But some high court appointments have been a source of disappointment for conservatives, Crawford said, pointing to retired-Justice David H. Souter and, perhaps, Chief Justice John G. Roberts Jr.

To avoid that disappointment in the future, the next president must develop a litmus test for Supreme Court appointments, University of St. Thomas School of Law professor Michael S. Paulsen said. He proposed asking potential appointees, “What do you think about Roe v. Wade,” the 1973 case confirming the right to have an abortion.

Other panelists wondered, however, how effective that would be. “Wouldn’t they just lie?” Jones Day partner Michael Carvin asked.

Ideology Matters.

Recent Republican presidents have failed to elicit the judicial philosophy of their Supreme Court appointees prior to nominating them, Paulsen said.

He said that’s left conservatives with decisions like King v. Burwell, 83 U.S.L.W. 4541, 2015 BL 202885, U.S.42 BPR 1149, 6/30/15, 123 DER, 6/26/15, 15 HRHCN, 6/29/15, 123 DTR GG-1, 6/26/15, 22 Multistate Tax Report 513, 7/24/15, 123 PBD, 6/26/15, 83 U.S.L.W. 1990, 6/30/15, 2015 Weekly State Tax Report 17, 7/3/15, in which Roberts joined the court’s more liberal bloc in upholding subsidies under the Affordable Care Act.

It also led to President-George-H.W.-Bush-appointee Souter, Carvin said. Souter frequently voted with the more liberal justices during his time on the court.

Carvin—who has argued a number of cases before the Supreme Court, including King—referred to Souter as a “self-inflicted wound.”

Those involved with judicial appointments have “fetishized the idea of judicial independence,” Paulsen said, leading them to avoid asking about a potential jurist’s judicial philosophy.

But Paulsen, whose scholarship focuses on constitutional interpretation, said that’s what life tenure and salary guarantees are for—to ensure independence.

On the other hand, the constitution provides for an explicitly political appointment process for Supreme Court justices, he said. It is, therefore, the duty of the president and the Senate to determine what the appointee’s ideology is prior to confirmation, Paulsen said.

Ideology matters, he said. The Supreme Court “wields substantial governmental power,” Paulsen said. “Your philosophy on the proper use of that power makes a huge difference.”

Paulsen predicted that if now-Fifth-Circuit-judge Edith Hollan Jones had been appointed instead of Souter, Roe v. Wade would have already been overturned.

Congressional View.

While all on the panel seemed to agree that an effort should be made to determine a candidate’s judicial philosophy, they disagreed on how best to do that.

Former chief counsel to Sen. Jon Kyl (R-Ariz.) Steven J. Duffield, who was involved in both Roberts’s and Justice Samuel A. Alito Jr.'s confirmations, said that senators either aren’t able to, or aren’t interested in, “engaging in an extended conversation about specific doctrines of interpretation.”

He added that it’s difficult to do during confirmation hearings, pointing to Roberts’s hearings as an example.

Looking back over the hearing transcripts, you get hints of the kind of jurist Roberts has become, Duffield said.

He noted that Roberts’s testimony indicated that he wasn’t a strict textualist, but that he thought the statutory text was a good place to start.

Roberts added, however, that Congress has something in mind when it enacts statutes, Duffield recounted. A judge’s job is to implement that view when interpreting statutes, Duffield recalled Roberts saying.

Duffield said that testimony is indicative of the approach Roberts took in King, a decision that has been criticized by conservatives.

However, no senator explored that testimony more fully because they only heard the part they wanted, Duffield said.

‘Hellish Existence.’

Paulsen agreed that the Senate confirmation hearings weren’t the best place to expose a nominee’s ideology. The best place is one-on-one conversations with the president’s staff prior to nomination, he said.

By asking what a candidate thinks of Roe v. Wade, you can learn all kinds of relevant things about them, Paulsen said.

Paulsen said you can learn a potential nominee’s views on whether judges can make constitutional rights, his or her theory of precedent and stare decisis, and his or her views on the proper balance between legislative and judicial power.

But Carvin was dubious that the question would reveal anything about a potential nominee. Drawing on his experience doing judicial screening for the Reagan administration, Carvin said, “No one was going to say they thought Roe v. Wade was rightly decided.”

Crawford, who has written a book on the Supreme Court, noted that when asked about Roe v. Wade at his confirmation hearing, Roberts responded that it was settled law, subject to the principles of stare decisis. “What does that mean?” Crawford asked rhetorically.

Instead, Crawford and Carvin said that judges need a “track record.”

That often means that candidates will be appellate court judges, Crawford said.

Alito had a clear record as a Third Circuit judge, and he was a real “home run” for conservatives, she said.

But all the talk about how a Republican president should approach Supreme Court nominations begged the question: What if a Democrat wins?

We will “descend into a hellish existence from which we will never emerge,” Carvin said to laughter.