Make Miers pass a ‘litmus test’

MICHAEL STOKES PAULSEN is a law professor at the University of Minnesota. He was a lawyer in the Justice Department during George H.W. Bush's presidency. JOHN YOO teaches law at UC Berkeley and was a deputy assistant attorney general at the Justice Department from 2001 to 2003.

FOR CONSERVATIVES, the White House has chosen precisely the wrong ground on which to fight for its nomination of Harriet E. Miers to the Supreme Court. We are being asked to simply trust the president. He knows Miers. She may have never taken a public stand on any constitutional issue, but -- nudge nudge, wink wink -- she will vote to overrule Roe vs. Wade. We dare not risk a nominee with publicly expressed solidly conservative legal views. This is the best we can do.

Yet the administration’s efforts to defend Miers are not just floundering, they are actually doing harm. Demoralized conservatives wonder what good is winning the battle for Miers if the price is complete surrender in the war of ideas? And experience -- in the form of Justice David Souter -- has shown that, notwithstanding insider assurances, a nominee with no public commitments will, over time, stick to exactly that same number of commitments: none.

To make matters worse, the administration has suggested to activists that Miers will prove to be conservative because she will vote either according to her religious views or her personal allegiance to President Bush. By all accounts, Miers is a pro-life Christian. And no one doubts her loyalty to Bush. But the idea that Miers would trim her decisions to fit such allegiances is one of the reasons conservatives cringe at the nomination.

For decades, conservative thinkers have criticized justices for deciding cases based on their personal desires, feelings or views on policy. Now conservatives are asked to support a nominee on the grounds that these attributes assure that Miers will “vote right.” This accepts the dispiriting notion that the court is just one more political institution. Imagine the reaction if President Clinton had nominated a record-less Arkansas friend and politico, a Bruce Lindsey or a Webb Hubbell, and publicly reassured Democrats that the nominee would vote pro-abortion because of his religious views (or absence thereof) and personal relationship with the president!


The only way out of this mess is for GOP senators to ask -- and to require Miers to answer, as a condition of confirmation -- direct questions about her judicial philosophy and its application to concrete constitutional issues. Republicans should test Miers’ core legal principles. And if she fails the test, or refuses to take it, they can vote against her.

The administration’s stealth strategy assumes that it is improper for senators to ask, or for a nominee to answer, a question about Roe vs. Wade or any other substantive constitutional question. This has things exactly backward. The Constitution not only permits such questioning, it arguably requires it. Although the Constitution makes judges independent after appointment, it sets up an explicitly political appointment process before a judge is approved. Why on Earth would determining a nominee’s approach to interpreting the Constitution be thought to be out of bounds, before giving her a lifetime appointment to do exactly that?

Is there any line of inquiry that the Constitution does not permit? Yes. It would be improper to try to exact a pledge as to how a nominee will rule in future cases. As long as the inquiry stops short of that, it does not violate the Constitution’s protection of judicial independence, nor does it violate judicial ethics. Parties before the courts are entitled to judges who will consider their cases without bias. But they are not entitled to judges who have no views of the law. An open mind is one thing; an empty head is another.

We would go one step further. The most useful way of discovering a nominee’s views is through “litmus tests.” One question would yield the maximum information about a nominee’s judicial philosophy (without requiring a commitment as to any future ruling): “What do you think of Roe vs. Wade”? The answer could explain her theory of constitutional interpretation, her views on the judicial invention of rights not set forth in the Constitution, her views on when courts should follow precedent, and her views about the judiciary’s role in our constitutional system.


Conservatives should insist that all nominees should interpret the Constitution in strict accordance with its text, structure and original understanding. Judicial decisions that depart from these principles amount to freewheeling policymaking from the bench. Precedent always should receive respectful consideration, but it cannot trump the Constitution. Because the Roe vs. Wade decision ran contrary to the Constitution and sound principles of constitutional interpretation, conservatives can maintain, forthrightly and without fear, that no judge should be appointed to any federal court who thinks the case was correctly decided as an original matter.

The administration may prove right in its claims that Miers is a principled conservative and an outstanding lawyer. Miers may very well think Roe vs. Wade is wrong and that judges should strictly interpret the law rather than make law. All she has to do to prove it is to answer one simple question: Ms. Miers, what do you think of Roe vs. Wade?