For decades, politicians in both parties agreed that it was anathema in our legal system to impose a litmus test on judicial nominees. Now, however, litmus tests appear the rage, particularly on the left. Indeed, in this week’s Ohio debate, senatorial candidate Tim Ryan (D) outdid his colleagues in not just promising one but multiple litmus tests for judicial nominees.
“I will have a litmus test on Roe v Wade, I’ll have a litmus test on the same-sex marriage, I’ll have a litmus test on birth control. We can’t keep going down this road of taking away rights.”
Instead, Ryan was promising to continue to go down the road of confirmation based on promises on future votes by a judge or justice. While it no doubt thrilled his base, it should appall anyone who cares about the integrity of our judicial system. Indeed, Ryan was taking a position adamantly opposed by liberal icon Ruth Bader Ginsburg.
While it was clear that presidents selected (and senators confirmed) judges with similar views on subjects like abortion, the suggestion of a threshold litmus was quickly and sometimes heatedly denied. President Barack Obama insisted that “we shouldn’t apply a strict litmus test and the most important thing in any judge is their capacity to provide fairness and justice to the American people.
In all honesty, past presidents have promised to appoint liberal or conservative justices and suggested that they would want pro-life or pro-choice nominees. However, they generally denied actual litmus tests where nominees were asked to confirm their position on future cases.
In many cases, it was obvious that the past legal views of nominees like Elena Kagan or Amy Coney Barrett would push them to different sides on issues like abortion. That was the case with with the late Justice Ginsburg, who was an advocate for women’s rights before joining the bench. Nevertheless, she is credited with a “rule” in confirmation to refuse to answer questions of she would vote on future cases as an assault on judicial integrity.
I have previously been critical of the “Ginsburg rule” as a barrier to getting nominees to discuss the substance of their jurisprudential views. However, Ryan is suggesting that he would demand advance assurances on voting on issues from abortion to birth control and same-sex marriage. He would not consider a nominee with opposing views. That is a true litmus test “in which a single factor is decisive.”
When asked for his position on any litmus tests, Republican J.D. Vance gave the traditional and correct answer. He said that he would not impose such a test on abortion for a nominee because he wanted to focus on who would be “a good judge.”
One can disagree with a nominee on their jurisprudential views but still consider them qualified. Indeed, one of the reasons that I have argued for retiring the Ginsburg rule is to allow members to understand the basis for such interpretations. That includes exploring the consistency with a nominee’s other interpretations to establish that legal not political considerations are driving the analysis.
Ryan indicated that he would bar anyone with any opposing view on such issues. He is not interested in explanations, only commitments on future cases. He would not be alone in such an attitude. Senators like Sen. Kirsten Gillibrand (D-N.Y.) have declared an absolute litmus test on abortion so that, no matter how qualified a nominee may be, she will vote entirely on the failure to promise to vote for abortion as a justice.
In 2020, Senate Democrats veered dangerously toward such litmus tests in demanding that Amy Coney Barrett confirm her likely vote on pending issues ranging from ObamaCare to abortion rights. Indeed, some senators said they would vote against her if she did not expressly confirm that she would vote to preserve the Affordable Care Act (ACA) and uphold Roe v. Wade. Barrett correctly refused to do so.
Notably, while Barrett did vote against Roe v. Wade, the Democrats were wrong in one of their litmus tests. A number of senators insisted that Barrett was nominated to kill the ACA. As I wrote at the time, it was an absurd claim and the pending case was not a serious threat to the ACA and, if anything, Barrett was most likely to vote for its preservation — which she ultimately did.
Ryan’s answer shows the danger of threshold litmus-test politics. With these three threshold tests, there will be demands for others. What about gender identity, gun control, immigration and other issues? Different groups will cry foul if their issues are not weighed equally with these other issues in threshold conditions.
That is the slippery slope of litmus tests. Ryan will soon find himself sending a long list of demands for nominees to commit themselves in advance on voting as a condition for his vote. Senate confirmations are not some Tinder date where you literally swipe left to reject those who do not meet threshold expectations.
The danger is that justices and judges will become mere extensions of the political process, judicial cutouts for politicians controlling entry on to the courts. What is interesting is that figures like Berkeley Dean Erwin Chemerinsky have denounced the conservative justices as “partisan hacks” but leaders like Ryan want to condition entry to the Court on meeting the demands of politicians like himself.
That is the rocky “road” that Ryan is taking with his multiplicitous litmus tests. While many voters may love the notion of swiping left on every circumspect nominee, the courts will be worse for it.