- The Washington Times - Saturday, May 12, 2001

In attacking liberals for their purported hypocrisy with respect to federal judicial selection, Thomas L. Jipping includes the Brennan Center for Justice (“Courting trouble,” Op-Ed, May 9). He notes that in October 1999 we declared that ideological litmus tests are “a selection method that undermines the independence of our third branch of government.” I´m sure nothing but considerations of space prevented Mr. Jipping from presenting our argument in more detail. Permit me to do so now.

We defined a litmus test as “a standard that qualifies or disqualifies potential judicial nominees on the basis of the holdings they would issue with respect to a particular case, or a class of related cases.” We went on to declare that “he Constitution allows the President and Senate to ask probing questions regarding the nominee´s overall legal acumen, judicial philosophy, temperament, and commitment to fairness and impartiality t is entirely appropriate to examine the nominee´s legal reasoning in prior cases for evidence of open-mindedness and willingness to consider each case on its own merits.”

We stand by this position. While it would be illegitimate for a senator to demand that a judicial nominee express any sort of commitment to reach a particular result in a case, it is absolutely within a senator´s purview to comprehensively investigate a nominee´s approach to statutory and constitutional interpretation.

And while we´re on the subject of hypocrisy, a review of Mr. Jipping´s past pronouncements is in order. Writing in your pages last summer, he excoriated Senate Republicans for supporting Mary McLaughlin for a federal district judgeship (“Trading away the judiciary,” Op-Ed, July 25). His reason for opposing her? “She received a 1998 award from the ACLU for her pro-abortion activism.”

In other words, he opposed Ms. McLaughlin because her political position on a single issue was sufficient for him to conclude that she could not be an impartial adjudicator. That´s a litmus test.


Associate Counsel

Brennan Center for Justice

New York University School of Law

New York

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide