Kerry’s Court
How a President Kerry would nominate.


Peter Kirsanow

The most profound impact the next president will have on the direction of the country, aside from prosecuting the war on terror, pertains to the nomination of judges. Absent retirements before the November election, the next president will likely nominate between two and four justices to the Supreme Court, as well as scores of judges to the federal district and appeals courts.

The question accordingly arises: How would a President Kerry select nominees for the judiciary?

Justice Scalia has noted that the tendency of judges to make, rather than interpret, the law necessarily causes the Senate’s advise-and-consent function to devolve into partisan warfare. Senators confirm judicial nominees more on the basis of ideological litmus tests than on the basis of the candidate’s competency, integrity, temperament, and experience. This, in turn, leads to a judiciary more likely to decide cases by invoking the “faddish slogans of the cognescenti” than by interpreting constitutional, statutory, or regulatory text–a trend favoring the rule of man over the rule of law.

Early in his Senate career, John Kerry warned that the imposition of litmus tests on judicial nominees would result in a narrowly ideological judiciary. In 1986, he cautioned that “throughout two centuries, our federal judiciary has been a model institution, one which has insisted on the highest standards of conduct by our public servants and officials, and which has survived with undiminished respect. Today, I fear that this institution is threatened in a way that we have not seen before . . . this threat is that of the appointment of a judiciary which is not independent, but narrowly ideological, through the systematic targeting of any judicial nominee who does not meet the rigid requirements of litmus tests . . . .” (Emphasis added.)

Indeed, that same year, Kerry voted in favor of Scalia’s nomination to the Supreme Court, noting that, “I support the nomination of Judge Antonin Scalia as an associate justice of the Supreme Court. I support him not because he is liberal or conservative, but because he is a legal scholar of distinction, principle and of integrity. . . . While I may often disagree with Judge Scalia’s views, I respect him as a jurist and legal scholar.”

Kerry could have easily said the same thing about Robert Bork, nominated to the Court a year later, whose judicial philosophy is unlikely to produce outcomes radically different from Scalia’s. But in 1988, Kerry’s position on confirmation changed. Whereas Kerry supported Scalia, viewed as one of the most conservative justices on the Court, Kerry voted against Bork because he was allegedly too conservative: “I felt that his writings as a law professor and a judge showed him to be outside the mainstream of American thought on issues of civil rights and civil liberties. His views did not reflect the consensus of the American people on those issues.” Kerry was particularly concerned about Bork’s views on an “implicit constitutional right to privacy,” a litmus test with which Kerry systematically targeted many judicial nominees after 1988. For example, Kerry supported the nomination of Anthony Kennedy (whom Kerry believed supported an implicit right to privacy in the Constitution) but opposed David Souter (whom Kerry believed didn’t support such a right).

Kerry continued to apply a right-to-privacy litmus test to judicial nominees over the next fifteen years, expressing opposition most recently to nominees such as Miguel Estrada, Charles Pickering, and Dennis Shedd. But as he began ramping up his run for the 2004 Democratic nomination, Kerry abruptly flipped back to his earlier stance against litmus tests: “I don’t like the idea of using litmus tests for judicial nominees. As a senator who must vote on whether to confirm federal judges to lifetime appointments, I prefer to take a long, serious look at their qualifications and their judicial philosophy rather than try to determine how they might rule in hypothetical cases.”

Kerry even chastised President Bush for purportedly using a pro-life litmus test for nominees: “You do not have to believe in the existence of right-wing conspiracies to recognize that there is a clear if quiet understanding between George W. Bush and right-to-life activists that he will do everything possible if Supreme Court openings occur to add the estimated 2 justices it would take to achieve their desired result.”

Kerry’s reversion to a no-litmus-test stance may be an effort to inoculate his nominees, should he become President, against the kind of filibuster now employed against several of President Bush’s selections for the bench. So, does this now mean that a President Kerry wouldn’t demand ideological purity from his judicial nominees?

Not quite. Kerry has pledged to nominate only pro-choice judges to the Supreme Court. (The apparent calculus is: pro-life litmus test–bad; pro-choice litmus test–good.) But his waffling on litmus tests probably won’t serve his nominees well. Given that Senate Democrats, who’ve now sanctioned implacable obstruction as a legitimate advise-and-consent tool, are likely to remain in the minority after November 2004, Kerry’s nominees may pass one test only to fail another.

Peter Kirsanow is a member of the U.S. Commission on Civil Rights.