Democratic
Presidential candidate Bernie Sanders told John Dickerson, host of CBS’s “Facethe Nation” last Sunday that if he is elected president, he will do everything he can “to
see that this disastrous Citizens United Supreme Court decision is
overturned.” CNN took his comment to
mean that Sanders has a “litmus test” for choosing Supreme Court justices.
Three
cheers for Sanders! I hear Hillary has a
similar litmus test too. Three cheers
for Hillary!
For far too
long we have decried the idea that a justice should begin his or her
life-tenure on the court with no ideas, no judicial philosophy and no opinion
as to whether a previous Supreme Court precedent is a fair interpretation of
the law.
That, in
turn, has produced a Supreme Court selection process in which a president looks
for a judge without a portfolio of decisions and law review articles on the
most contentious legal issues in American politics. And that, in turn, produces the spectacle of
a Senate Judiciary committee wrestling with a Supreme Court nominee who won’t
spell out his or her views on the grounds that to answer questions about a
precedent would be tantamount to “prejudging” a case that could be making its
way to the Court.
Here’s Washington
Post columnist Dana Milbank’s account of an exchange between the late Senator Arlen Specter of Pennsylvania and then
Supreme Court nominee John Roberts on whether Roberts might vote to overturn Roe v. Wade, the 1973 Supreme Court case
that made abortion a constitutional right:
"I begin collaterally with the issue of stare decisis [the
legal principle that prior Supreme Court precedent should be regarded as
settled law] and the issue of precedents," began Sen. Arlen Specter
(R-Pa.), the chairman of the Senate Judiciary Committee.
Roberts knew where this was going. "While I'm happy to talk about stare
decisis and the importance of precedent, I don't think I should get into
the application of those principles in a particular area," he said.
Specter was not deterred. "Do you think that the cases which have
followed Roe fall into the category of a 'super' stare decisis
designation?" he pressed. Offering a bit of translation, Specter wondered
whether "Roe might be a super-duper precedent."
Roberts finally showed some leg on stare decisis . Roe "is
settled as a precedent of the court," he said, "entitled to respect
under principles of stare decisis."
That was about the most the senators could get out of Roberts. Roe v.
Wade may not be a "super-duper" untouchable precedent, but it
should be respected.
Though a Republican at the time,
Specter had been a strong “pro-choice” advocate, and Roberts, nominated by the
“pro-life” George W. Bush, knew that his nomination would be in peril
if he gave an answer detailing his position, regardless of what it actually
was.
This kind of thing is extremely
damaging to our democracy. The Supreme
Court is the only one of our constitutional governing institution that is
almost wholly insulated from the political process. Once confirmed by the Senate, it’s a Supreme
Court’s justice’s job to be deaf to public opinion.
After the Court has rendered a
decision about a constitutional matter, there are only two ways that a decision
unacceptable to a large number of Americans can be corrected.
First, we can amend the
Constitution. But by its own terms,
short of a Constitutional Convention called by the states, it takes a 2/3 vote
in the House of Representatives, a 2/3 vote in the Senate and the approval of ¾
of the states.
Fat chance.
Second, upon the death or retirement
of a Justice who supports the decision in question, the president can replace him
or her with Justices who will vote to overturn the decision. If the case was decided by a 5-4 majority,
replacing a dead or retiring member of the majority with a justice who agrees
with the minority will enable the new majority to reverse the precedent when
presented with an appropriate case.
It’s impossible to know what a
president asks of a person before he or she nominates that person to a seat on our
highest court. That’s why it’s so
important for Senators to demand straightforward answers to their questions
about what a nominee believes about particular policy issues that are likely to
arrive at the court. It’s democratic
malpractice not to.
This isn’t an exercise in prejudging
or “stacking the court.” Court cases always turn on their facts, and nobody is
asking a nominee to decide the facts of a case before a hearing. But when cases reach the Supreme Court, the
facts of the case have already been decided by a lower court judge or jury, and
under our system, those findings are generally binding on appellate judges,
including the Justices of the Supreme Court.
Once a case reaches the Court, the
only thing left to the justices is "to say what the law is.”
That’s why it should be fair game
for a Senator to ask a potential nominee whether, in general, the right to an
abortion is secured by the Fourteenth Amendment, whether the Second Amendment includes
an individual right keep guns at home for self-protection, or whether the First
Amendment creates the right for a corporation or a SuperPac to raise and spend
unlimited amounts of money in political campaigns.
Getting the answers to these and
other questions is the only way the people have for influencing the membership
of the Court. It is the last chance the
political process has for deciding something as important as the content of our
civil rights and liberties. Citizens are
entitled to know what a nominee thinks the Constitution says about crucial
issues likely to reach the Court during the nominee’s tenure if he or she is
confirmed. Full disclosure enables
voters to contact their senators in order to influence their votes on
confirmation before a nominee becomes
and unelected and unaccountable Supreme Court Justice.
Justices hold their offices for
life, and it’s possible that they may change their views over time, as Justice Blackmun did with
respect to the death penalty. A justice
cannot be removed from office simply because of the way he or she decides a
case, even if the decision is contrary to what he or she said during the
confirmation process. But the people are
entitled to assess the depth of a justice’s commitment to his or her view of
the law before it is too late to do anything about it.
Transparency and honesty are
important if our government is to work.
Better the Justice you know than the Justice you don’t.
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