Do litmus tests help explain a Supreme Court nominee’s judicial philosophy or do they offend the idea of an independent judiciary?
As President Donald Trump prepares to speak to Congress tonight, that question casts a shadow over whatever he might say about his nominee to the Supreme Court, Judge Neil Gorsuch.
Americans have generally come to expect their president to examine a nominee’s judicial philosophy, ideology, and record – but not to pick nominees locked into a guaranteed series of votes on hot-button social issues. The reason behind this aversion to explicit litmus tests: we want judges to have an open mind and take cases as they come, not owe votes to the person who appointed them to the bench.
President Trump, however, is an unequivocal cheerleader for litmus tests, including his promise to nominate Supreme Court Justices who are “pro-life” and who would “automatically” vote to overturn Roe v. Wade – the landmark decision protecting a woman’s right to an abortion.
Trump defenders will remind us that Hillary Clinton had a “bunch of litmus tests” of her own. That’s true, and Clinton was wrong to have had them. But Trump is the President, not Clinton (as Trump never tires of reminding us). While Judge Gorsuch has apparently suggested in private meetings with Senators that he might not be eager to “automatically” overturn Roe, that runs headlong into Trump’s much-touted abortion litmus test.
Senators listening to Trump tonight, who are constitutionally obliged to advise and consent on Gorsuch’s nomination to the high court, will rightly want to know how to square Trump’s repeated invocation of litmus tests with Gorsuch’s statements in closed-door meetings with pro-choice Senators.