Soon-to-be Justice Sonia Sotomayor will sail through her Senate confirmation hearings this week, barring some sort of implosion. Republican senators are afraid to vote against her, lest they be labeled racist; Democratic senators are all too happy to vote to place a "wise Latina woman" on the highest court in the land, particularly one with a record of judicial activism.
The senators agree, however, that they will not use any "litmus" test in determining Sotomayor’s fitness for the Supreme Court. Sen. Ted Kaufman (D-Del.) expressed the sentiment well in his opening statement during the Sotomayor hearings: "As senators, I believe we each owe you a decision based upon your record and your answers to our questions. That decision should not turn on empty code words like ‘judicial activist,’ or on charges of guilt by association, or on any litmus test. Instead, we should … determine whether you have the qualities that will enable you to serve well all Americans, and the rule of law, on our nation’s highest court."
This, to put it mildly, is silly. We all use litmus tests when we determine the fitness of every job candidate. Some of us will reject job candidates who show up to interviews wearing no pants. Others will reject job candidates who wear earrings, tattoos and baggy sweatpants. Still others reject job candidates if they can’t speak English.
The fact is: there are certain qualifications to being a Supreme Court Justice. The chief qualifications are impartiality between parties and deference to the Constitution as written. And while judges like Sotomayor can lie and mouth slogans, their legal positions betray their true judicial philosophies. That is why legal positions are an excellent litmus test for judges.
Here, then, are three litmus tests the senators should have used this week to determine Sotomayor’s fitness for the Supreme Court:
— Does she believe that Roe v. Wade (1973) was rightly decided? If she believes that abortion is a constitutional right, then she is clearly unfit for the Supreme Court. The Bill of Rights was ratified in 1791. The 14th Amendment was ratified in 1868. Abortion was illegal in most states up until the 1970s. The idea that any of the writers of the 14th Amendment or the Bill of Rights intended women to be able to kill their babies is ridiculous and insulting in a purely legal sense.
— Does she believe that Kelo v. City of New London (2005) was rightly decided? That case found that the clause in the Fifth Amendment allowing "private property [to] be taken for public use" means that the government can hand my property over to you because you pay more taxes. If she believes that, she isn’t just legally wrong, she’s clinically insane.
— Does she believe that Lawrence v. Texas (2003) was rightly decided? There is no right to sodomy in the Constitution, and there is no right to privacy more generally. Justice Anthony Kennedy says in Lawrence that "The petitioners are entitled to respect for their private lives." The Constitution does not guarantee respect for anyone’s private life, and anyone who believes that is either illiterate or willfully blind.
Sotomayor fails each and every one of these tests. She backed the Court’s nonsensical rulings in all of these cases, and expressly cited stare decisis — the principle that future Supreme Courts are bound by previous Supreme Court judgments. In defending the Court’s egregious Kelo decision, for example, Sotomayor said, "I must give it the deference that the doctrine of stare decisis would suggest." In commenting on Roe v. Wade, Sotomayor said it was "settled law."
Stare decisis is an easy way for judges to confirm decisions with which they agree while discarding decisions with which they disagree. Sotomayor presumably would not have cited stare decisis if judging Brown v. Board of Education (1954), the case overturning the pro-segregation decision Plessy v. Ferguson (1896). Stare decisis is only to be cited if you like the Court’s previous decision. If not, judges utter the magic words: "circumstances have changed," then proceed to utterly overthrow the previous decision.
The simple fact is: Sotomayor, for all her bluster about applying the law and judging impartially, is a liar. Her support for decisions that completely remold the law at judicial discretion demonstrates her desperate wish to be a second legislature. But this is why we have the advice and consent process by which the Senate confirms judicial nominees: to weed out the worst, like Sotomayor. Unfortunately, our senators are too gutless to set up real litmus tests, instead falling back on "empathy" and "life stories" and "judicial temperament" in order to boost their political allies to power.