- The Washington Times - Wednesday, November 10, 2004

The illness of Chief Justice William Rehnquist and the brazen announcement by Sen. Arlen Specter, Pennsylvania Republican, of his own policy litmus test for judicial nominees raise very serious questions about which way this country will go at this crossroads in our legal history.

The South Dakota voters’ defeat of Sen. Tom Daschle, leader of the Democratic obstructionists who refused to let some of President Bush’s judicial nominees come up for a vote in the Senate, seemed to offer hope the obstructionism might subside. But Mr. Specter’s words suggest the mantle of obstructionism may simply have been passed from Mr. Daschle to Mr. Specter.

If Senate Republicans follow seniority and make Mr. Specter chairman of the Senate Judiciary, we could be in for the dangerous business of litmus tests for judicial nominees and the trashing of nominees who believe in following the original intent of laws, rather than engaging in judicial activism.

First of all, what do such terms as “litmus test,” “judicial activism” and “original intent” mean in plain English?

The Senate has the constitutional duty to “advise and consent” on the president’s choice of judicial nominees. For well more than a century, that meant senators decided whether a particular nominee was qualified to be a federal judge or a Supreme Court justice.

For a long time, Supreme Court nominees were not even questioned in person by senators. Their record was public knowledge and they could be confirmed or not on that basis.

Therefore, the question did not arise of how they would vote on specific issues that might come before. There could be no litmus test based on whether they were for or against particular policies favored by particular senators.

That has of course all changed in more recent years. Those who remember the circus atmosphere and smear campaigns during the nominations of Judge Robert Bork in 1987 and of Judge Clarence Thomas in 1991 will be painfully aware how much things have changed.

Today, some senators want to know how judicial nominees would vote on specific issues such as abortion, racial quotas or environmental regulations. Senators won’t admit they want to preselect judges to rule their way, as that would destroy the judiciary’s independence under the constitutional separation of powers. But their questions amount to the same thing.

President Bush repeatedly has said he has no litmus test on any issue, but wants judges who will apply the law instead of their own policy preferences. But people like Sen. Arlen Specter want judges who support particular policies. That is what judicial activism means. The opposite judicial philosophy involves following the “original intent” of the law.

Mr. Specter and other liberals muddy the waters by claiming nobody knows the original intent of those who wrote the Constitution or even later legislation. This is a completely phony issue and a red herring.

Leading legal scholars from William Blackstone in the 18th century to Oliver Wendell Holmes in the 19th century to Robert Bork in the 20th century have made it clear beyond any honest misunderstanding they do not mean those who interpret laws today should try to read the minds of those who wrote them.

Even if it were possible to know the inner thoughts of people in the past, it would be completely irrelevant because nobody voted on what was inside their minds. They voted on what the words themselves meant when they were written.

Phrases like “due process” and “freedom of the press” had a long-established meaning in British law even before they were put into the Constitution of the United States. If we want to change the Constitution, there is a process for amending it, without having unelected judges doing it for us.

Anyone who doesn’t understand this should not chair the Senate Judiciary Committee and be a roadblock to restoring constitutional law in America.

Thomas Sowell is a nationally syndicated columnist.

Sign up for Daily Newsletters

Manage Newsletters

Copyright © 2020 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.


Click to Read More and View Comments

Click to Hide