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.