Sex and the Single Judicial Appointment

           When I was a kid, the adults talked about sex, if at all, in euphemisms and metaphors.  There were euphemisms for body parts and code words or phrases for various sexual activities.  They left us puzzling about why they didn’t sleep in separate beds like Lucy and Ricky Ricardo did.

            Our elders were largely the defenders of the old order in the sexual revolution of the late 1960s and 1970s.  They understood the facts of life—and we kids were living proof of that—but they weren’t then willing to talk about the integral part sex plays in human life and culture.  Sex, for many of them was l mostly an embarrassing activity that took place behind closed doors. Silence or coded language, they must have thought, could banish the subject, in all its prurience, from day to day experience.  Perhaps if they didn't talk about it, nobody would think about it.
            Didn't work. 

            I couldn’t help but think of this as I read the Washington Post’s condemnation of Donald Trump’s release of a list of judges he said he would consider nominating to the Supreme Court if elected president.

            Trump apparently received a significant amount of help compiling the list from the conservative Heritage Foundation. The Post didn’t object to any of the names on the list.  Instead, it complained that “Mr. Trump is damaging the country’s institutional fabric, in this case by further politicizing the judiciary.”

            For good measure, it also criticized Bernie Sanders’ promise to name justices who would reverse the Citizens United decision that opened the floodgates to campaign spending by corporations and unions and Hillary Clinton’s promise to subject prospective Supreme Court nominees to “a bunch of litmus tests” on abortion, LBGT rights, voting rights and campaign finance law.

            “Litmus tests,” the Post opined, “subvert the independence of the judiciary.”  If politicians make the policy judges create fair game in considering whom to appoint, “the freedom of judges to decide specific cases would erode, and any assurance that those before the court could get a fair hearing would vanish.”  Judges hoping to be appointed to higher courts, it argues, will write their opinions so as to curry favor with the politicians at large or to avoid creating an adverse paper trail on controversial issues.

            This strikes me as a naive dismissal of the facts of political life.  Everyone knows that these litmus tests exist. But the Post apparently believes that if we don’t discuss them, we can ignore their reality.

            When Supreme Court justices make decisions on constitutional grounds, their decisions can only be undone by a politically implausible constitutional amendment, an unlikely change of heart on the part of one of the justices, or a change in Court personnel.  Because they have life tenure, they never have to worry about what voters think of their decisions. With all that time and democratically unaccountable power, judges in general and Supreme Court justices in particular can have an outsized impact on public policy.

            The Post is invoking fantasy when it assumes that a judge takes his or her seat on any court without pre-existing convictions on controversial matters.  Any person who graduates from law school without having received a healthy introduction to constitutional law, criminal law and civil rights and civil liberties law demonstrates, by his or her disinterest in those subjects, his or her unfitness for the bench.  It is simply implausible that any college graduate, much less a law school graduate, has not spent innumerable hours discussing civil rights, civil liberties, criminal law and the reach of governmental power.

            Voters have a right to know what a judicial nominee thinks about the legal principles—but not the cases—he or she is likely to encounter once he or she takes a seat on a court.  I certainly want to know whether a nominee thinks the Constitution protects a woman’s right to get an abortion, whether individuals have a constitutional right to own handguns, whether prohibiting same sex couples from marrying is permitted by the constitution and whether Congress can require everyone to buy health insurance.

            Rest assured that after Justices Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens and David Souter, all of whom disappointed the Republican presidents who appointed them by eventually becoming stalwarts of the Supreme Court’s liberal block, no President is going to appoint anyone without being absolutely certain where a potential nominee stands on the major issues their bases care about.  Given the power of the Supreme Court, in a democracy, it’s just as irresponsible to deny voters information about who a presidential candidate might nominate for a seat on the Supreme Court as it is to let teenagers reach puberty without teaching them how to avoid pregnancy and sexually transmitted diseases.

            So let’s stop speaking in euphemisms, metaphors and other coded language when it comes to judicial appointments.  Let’s avoid the strategic evasions about “privacy” and “super duper precedents” when what we want to know is whether a judicial nominee is going to protect a woman’s right to have an abortion under most circumstances.  Let’s face the issues head on.  We’re all grown-ups here.

            The Constitution gives the president the power to nominate judges and under our system, that is part of what is at stake during any presidential election.  Just as we voters are entitled to pass on the policies politicians propose to enact if elected, democracy requires that voters get a chance to consider the changes in policy likely to occur if a president gets to appoint the judges of his choice.