Bench Memos

A “Litmus Test” for Miers

In today’s LA Times, Michael Stokes Paulsen and John Yoo make a powerful case that senators should impose a “litmus test” on Harriett Miers, and make her answer detailed questions about her judicial philosophy.

The most useful way of discovering a nominee’s views is through “litmus tests.” One question would yield the maximum information about a nominee’s judicial philosophy (without requiring a commitment as to any future ruling): “What do you think of Roe vs. Wade“? The answer could explain her theory of constitutional interpretation, her views on the judicial invention of rights not set forth in the Constitution, her views on when courts should follow precedent, and her views about the judiciary’s role in our constitutional system.

They also note that the administration’s defense of Miers implicitly undermines the arguments conservatives have made for years respecting judicial nominations and undermines the rule of law.

The administration has suggested to activists that Miers will prove to be conservative because she will vote either according to her religious views or her personal allegiance to President Bush. By all accounts, Miers is a pro-life Christian. And no one doubts her loyalty to Bush. But the idea that Miers would trim her decisions to fit such allegiances is one of the reasons conservatives cringe at the nomination.

For decades, conservative thinkers have criticized justices for deciding cases based on their personal desires, feelings or views on policy. Now conservatives are asked to support a nominee on the grounds that these attributes assure that Miers will “vote right.” This accepts the dispiriting notion that the court is just one more political institution.

This one is definitely worth a read.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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