Record Retrospective: Senate Should Not Subject Judicial Nominees to Simplistic Political Litmus Tests

Editor’s note: 30 years ago today, The Record printed this excerpt from a speech delivered by Abner J. Mikva to the D.C. Bar Annual Meeting in 1985. Chief Judge Mikva served on the United States Court of Appeals in the D.C. Circuit, first in Seat 11 and then as Chief Judge. Merrick Garland would eventually replace him in both seats. Chief Judge Mikva passed away last year.

In 1979 I was called by the Attorney General to tell me that President Carter was going to nominate me for one of the new judgeships on the U.S. Court of Appeals for the D.C. Circuit. I remember wondering what the President’s timetable was, and how long it would be before I moved to my new offices down the street. What naivete!

At the time I thought the only cause for delay would be the period of time required for the ABA and the FBI to review my credentials and past. I saw no reason for worry. My naivete began to dissipate when a friend advised me that the National Rifle Association was considering opposing my appointment. My first reaction was puzzlement — not that the NRA and I had not previously clashed. We had on many occasions. But I could not understand why the NRA would rather see me stay in Congress where I could raise their hackles than go to the court where I would have no influence or voice about the policy issues of gun control. The NRA began pressing its views. In May of 1979, the executive director of the NRA’s lobbying arm announced I was “unfit for judgeship,” that my views were “those of a Fascist,” and my attitudes those of a “tin-pot dictator.” It began to appear that he was not really for me. While I continued to receive support from the media and from friends on the Hill, the NRA was producing results. One Senator who earlier had volunteered his support, embarrassedly explained that he had not been aware of the NRA’s opposition, and told me there was no way he could support me. The same scenario unfolded in Senate office after office. I became a household word in little towns in Mississippi and Montana and Idaho — and the word was not good.

The story came out all right for me. The Senate gave me an enthusiastic send-off, by a vote of 58 to 31 — I was confirmed. Not quite the overwhelming plurality I had anticipated — but better than my constituents had given me in Congress. The NRA reportedly spent a million dollars in their effort to prevent my confirmation. But the memories of that battle, and the oddity of single-issue opposition to a candidate for a nonelectoral role has remained close. Unfortunately, the process is neither new nor diminished. Indeed, the current political challenges to important constitutional cases — abortion, busing, prayer in the schools — have caused the selection of judges to become a hot political issue.

This new or revived attention is beginning to make a difference. Take, for example, Joseph Rodriguez, New Jersey’s Public Advocate. Following his nomination, he was subjected to a test of his “liberal” philosophies. Some members of the Senate Judiciary Committee sent an eight-page questionnaire to Rodriguez, asking him to spell out his opinions on the Equal Rights Amendment, abortion, the death penalty and school prayer. The questions did not address Rodriguez’s general philosophy, but rather sought answers that would indicate the way Rodriguez would decide cases that raised certain issues.

The Senators also sought a list of all political contributions Rodriguez had ever made as well as a list of all organizations to which Rodriguez had ever belonged. Rodriguez deftly filled out the questionnaire without answering a single question. Surprisingly, the Senators backed off, possibly sensing that the questionnaire raised more serious questions about judicial independence than about Mr. Rodriguez’s qualifications. Rodriguez was eventually confirmed.

One local nominee was blocked, however, even though his professional credentials were impeccable, and even though he had performed brilliantly in a public office, building a deserved reputation as a hardliner in the criminal justice field — because he had contributed to gun control organizations and financially supported pro-choice candidates for public office. Another potential judicial nominee was shot down early, even though both of his state’s Senators supported him, apparently because he had served too well as a public defender.

Is this substantive screening by the Senate and by other political forces a new phenomenon? Only since 1795. George Washington was unable to obtain the confirmation of one of his nominees to the Supreme Court for similar reasons. Washington nominated former Justice John Rutledge for Chief Justice of the United States. Unfortunately, a few weeks after his nomination, Rutledge attacked the Jay Treaty, which was designed by Washington. To the Federalists, who strongly supported the treaty, Rutledge’s opposition called into question his views on foreign policy — whatever that had to do with his capacity to serve as Chief Justice of the United States. After a bitter debate, the Senate refused to confirm Rutledge.

The desire to install likeminded judges also transcends party and political labels. During the confirmation hearings of Justice John Paul Stevens, Senator Kennedy pressed Stevens for his views on numerous topics. At one point he asked: “As a private citizen, what are your views on the Equal Rights Amendment?”

Is this a politicization of the Court system? Is it bad? Is it new, or getting worse? Is it avoidable? The answers are as complicated as the interplay between the three branches of government, and I cannot give you any precise answers. Let me give you instead some highly obiter dicta.

First of all, the questions raise another question. What kind of judiciary do we want? The major pronouncements of our federal courts — the ones that most directly affect the social and economic life of the nation — those decisions unavoidably have political impact. Over 100 years ago, Alexis de Tocqueville commented that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” We expect judges to be impartial, but our courts are not isolated from the political domain.

We do not want judges who are completely devoid of political content, for that means they have spent no time in the mainstream of American life and have no connection with the hearts and minds of the American people. Being detached from day-to-day partisan affairs is one thing; being wholly divorced from the world of real people is something else. Judges need to know something about legal theory, but they also need to know something about the real world.

If we acknowledge that politics and the judiciary have some enduring connection, why not use litmus tests — like abortion, prayer in the schools, the Equal Rights Amendment — to determine the political leanings of potential judges? Many people argue that litmus tests are simply a new way of doing what Presidents and Senators have always done. The problem with litmus tests is that they aim at much more than just an assessment of political views or preferences.

A president may certainly nominate judges who share his worldview. What a president may not do is use the nomination process as a means to amend the Constitution or recast important constitutional precedents. A President may want judges who start out sharing his values. What he ought not seek is judges who forget or are willing to forgo the anti-majoritarian purpose of the Bill of Rights.

The line we are concerned about in judicial selection is between a judge who constantly remembers who appointed him and a judge who remembers that popular decisions can be made easily by the popular branches of government, but that his function is to protect minority rights from majority passions. By minorities I mean not only racial, religious and political groupings — I include every defendant in every criminal case. Think of any important criminal law precedent where a constitutional right was upheld. Every one of these cases would have been decided differently if the decision had been by referendum — Miranda, Monte Durham, Mapp v. Ohio, Escobedo, Gideon.

And that is why the Senate, as the reflecter of popular will, must also be circumscribed in its inquiries. What the Senate ought not do is determine, through questioning, a nominee’s views on emerging constitutional doctrine, on issues likely to face courts in the near future. Why? Because these questions are really a signal to a nominee that he will become a judge only if he promises to be obsequious, to be a yes man to the powers that be.

The Constitution clearly does not permit the judiciary to be a subdivision of the Senate, nor judges to serve as inferior officers to the President. Just as the President must not seek to influence the independent and frequently unpopular judgments of the judges, the Senate also cannot use its confirmation power to create judicial I.O.U.s.

I am also disturbed by another message of these judicial I.O.U.s. I think that when we ask prospective judges their views on an issue likely to arise in the future, we are locking those judges into a position. Today’s litmus tests tell nominees that when the question is abortion, the answer is no, and when the question is prayer, the answer is yes. Do we want judges who have decided the outcome of a case even before looking at its facts? Do we want judges who disregard statutes and regulations to reach a particular result?

The constitutional prohibition on advisory opinions tells us that justice is achieved by well-informed, concrete decisions, rather than by mere hypothetical speculation. There is still another defect to the litmus test approach to picking and confirming judges. The test is always about a single ailment — a single cause. It tells you little about the rest of the corpus. What must be avoided is the selection of a nominee based solely on how he or she would decide a particular issue. Judges are appointed for life. No one can really predict what issues will be important in ten or twenty years. Andrew Jackson wanted to appoint a justice who would oppose the Bank of the United States. He found him in Roger Taney. Twenty years after President Jackson left office, Chief Justice Taney was still around to author the Dred Scott opinion. President Jackson’s appointee almost succeeded in throwing out the Union with the Bank.

I would like to raise one last difficulty with the over-involvement of popular concerns and institutions in judicial selections. We can agree that judges and the appointment process are not without political content, but to be effective, courts must operate outside of the political sphere. The Supreme Court’s mandates are obeyed not because of police in the streets but because of public perceptions of the Court’s legitimacy. When the Court is perceived as an apolitical, wise and impartial tribunal, the American people have evinced a willingness to abide by its decisions. But if the Court is viewed as simply a Congress in black robes, the Court’s ability to perform its constitutional function is threatened.

What should a wise President and a forbearing Senate do in the best of worlds? I believe close examination should be made of potential jurists. It is perfectly fair for presidents and senators to seek judges who share their view of the role of government in American life, who in the long run will do what presidents and senators believe is best. But to assess this compatibility, it is not merely unnecessary, it is patently offensive, to ask of a potential judge what he or she will decide in a future case. Nominees usually have made a public record, whether in past decisions, in writings, or in speeches.

The litmus test, then, of a good appointment and confirmation procedure is restraint. There ought to be executive restraint — while the President is entitled to appoint people he likes and respects, he ought not exact or expect any pledge of fealty to the Chief. Some of the best of Justices and judges have confounded their appointers, whether we talk of John Marshall or Earl Warren or William Brennan. There ought to be senatorial restraint. The Senators may have understandable curiosity about the candidate’s views on the hot issues of the day. They can look but they better not touch.

And the nominees themselves must exercise restraint. Knowing which questions are properly posed to a nominee, and which are not, is perhaps the best litmus test of the qualities we want in a judge. What a nominee will decide in a particular case tells us nothing about the nominee’s judgment. But the refusal to respond to improper questions, invoking, as Senator Ervin once said, the “judicial fifth amendment,” tells us that this nominee possesses the independence and courage we ought to want in our judges. And history tells us that when Senators display restraint and respect, and when nominees display good judgment, confirmation will not be denied. Felix Frankfurter, Sandra Day O’Connor, Thurgood Marshall, and Joseph Rodriguez all refused to answer certain questions; all were confirmed.

Mostly, we come back to the questions of the beginning. Do we really want a “popular” judiciary? Do we want a judiciary that has no strong views on anything, except the importance of being confirmed? I think not. What we want are women and men with integrity, with wisdom, with good judgment, and with the strength to take unpopular positions. I think that nominees who would answer the current breed of litmus tests lack these necessary qualities.

When Abraham Lincoln sought to appoint a Justice, he wanted a person with certain views, but he knew better than to ask. Instead, Lincoln said: “We cannot ask a man what he will do, and if we should and he should answer us, we should despise him for it.”

Lincoln understood the complicated process of judge-picking.

Published January 15, 1987

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