I’m (to put it mildly) not a fan of Donald Trump, and, as I’ve explained, I don’t take any comfort from the list of possible Supreme Court nominees that he issued last week. That said, this Washington Post house editorial over the weekend criticizing him for “further politicizing the judiciary” makes little sense.
The primary cause of “politicizing the judiciary” is the widespread belief that judges have free rein to read the Constitution and federal statutes to impose whatever result they want. WaPo’s editorial board routinely propagates that belief. Indeed, consider its incredibly feeble account in its editorial of how judges should differ from political (or, rather, in its phrasing “more political”) actors:
The judiciary is different from the other two, more political, branches of government, and politicians, in their search for short-term victories, should not be so eager to erode that difference. Judges are not immune to ambition or political ideology, but Americans have long expected and should still expect that judges be guided by other values: careful thinking, reverence for the facts of specific cases, respect for the intent of the elected leaders who write the laws, openness to counterarguments, a healthy amount of modesty and allegiance to the notion that their rulings must bear a rational relationship to the laws they interpret and the precedents they have set.
Note that the editorial board can’t even bring itself to say that judges have an obligation of fidelity to the Constitution and to the rule of law, but instead babbles about judges being guided by “allegiance to the notion that their rulings must bear a rational relationship to the laws they interpret and the precedents they have set.” Could one set a lower or more malleable standard for judges to meet? Are we content, say, with reporters whose articles bear no more than a “rational relationship” to the events they are purporting to describe?
For similar reasons, I think that the editorial’s complaint about “judicial litmus tests” badly misses the mark by conflating tests of judicial philosophy with tests of political ideology. A litmus test that distinguishes sound from unsound judicial philosophy—e.g., was Roe v. Wade correctly decided?—is entirely proper.