- - Sunday, August 30, 2020

President Trump surprised America during his 2016 campaign by offering a list of candidates to fill the vacancy on the U.S. Supreme Court after the death of Justice Antonin Scalia. He has promised to publish a “refreshed list” in September. Thinking ahead about the high court makes sense. Given that several justices are over 70, whoever is elected president will almost certainly have the opportunity to fill a seat or two.

The nomination and confirmation of Supreme Court justices has become a brutal business, to be sure. When those in charge of the process respect the independence of the judiciary, the results have been good for religious freedom and “conscience rights” — the right of Americans to act in accordance with their consciences even if society as a whole disagrees with them.

Those rights were upheld as recently as this July, when the Supreme Court intervened on behalf of an order of Catholic nuns, the Little Sisters of the Poor. At issue was a Trump administration rule providing conscience protection to religious and moral objectors who decline to provide contraceptives — a mandate that also includes some abortifacients and sterilization — for their employees.

In a 7-2 decision, a majority of the high court recognized the federal government’s authority under the Affordable Care Act to craft religious and moral exemptions from the act’s contraceptive mandate. To have ruled any other way would have required judicial activism, which is one way to describe the position taken by the dissenting justices.

Some Republicans seem to think that the way to counter judicial activists’ game is by imposing litmus tests. The Republican politician attempting to lead his party down this path is Sen. Josh Hawley from Missouri, at 40 the youngest member of the Senate.

After the Supreme Court struck down a hospital admitting privileges law for Louisiana abortionists in June Medical Services LLC v. Russo, Mr. Hawley took the opportunity to announce his litmus test. He said that future Supreme Court nominees must prove their pro-life credentials before they get his vote: “I want to see as part of their record that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”  

As Ed Whelan persuasively explains, one major problem with litmus tests is they don’t work. Imagine that, for the past 30 years, every potential Supreme Court justice had been forced to declare opposition to Roe v. Wade in advance. David Souter, Sandra Day O’Connor and Anthony Kennedy — all appointed by Republicans and all members of the 1992 plurality decision in Planned Parenthood v. Casey which upheld Roe — would have passed with flying colors. Clarence Thomas would have failed. 

In recent memory, left-wing Democrats in the Senate have imposed their own litmus tests. And in doing so they have remade nomination hearings into a brutal spectacle that has the politicization of courts as its objective. As the fervently anti-Roe Justice Scalia once put it: “How upsetting it is that so many of our citizens … think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.”

Although Mr. Hawley has not been the one to point this out, recently appointed justices who were not subjected to an outcome-based litmus test before joining the bench have been consistent in protecting religious freedom and rights of conscience — not just for the Little Sisters of the Poor. 

In Espinoza v. Montana Dept. of Revenue, the court struck down a century-old, anti-Catholic law in Montana barring public funds from benefitting religious schools. It also upheld the First Amendment right of Catholic schools to hire and fire their religion teachers in Our Lady of Guadalupe v. Morrissey-Berru. 

If proponents of judicial activism had their way, current justices who have been consistent defenders of religious freedom would never have joined the court. Similarly, if Republicans follow the lead of the left by adopting litmus tests, they would likely not achieve desired results.

When we select judges based on their broader commitment to constitutionalism, as we have seen recently, the rights of Americans who find themselves under intolerable pressure to speak or act against their convictions are upheld. In contrast, the litmus tests promoted by Mr. Hawley and liberals before him don’t just compromise judges. They stop them from being judges at all.

• Andrea Picciotti-Bayer is director of the Conscience Project, an organization advancing conscience rights through public education and amicus support in religious freedom cases.

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