The illness of Chief Justice William Rehnquist and the brazen announcement by Senator Arlen Specter of his own policy litmus test for judicial nominees raise very serious questions about which way this country will go at this crossroads in our legal history.
The South Dakota voters' defeat of Senator Tom Daschle, leader of the obstructionists who refused to let some of President Bush's judicial nominees come up for a vote in the Senate, seemed to offer some hope that such obstructionism might subside. But Senator Specter's words suggest that the mantle of obstructionism may simply have been passed on from Daschle to Specter.
If Senate Republicans follow seniority and make Senator Specter chairman of the Senate Judiciary, then we could be in for the dangerous business of litmus tests for judicial nominees and the trashing of nominees who believe in following the original intent of laws, rather than engaging in judicial activism.
First of all, what do such terms as "litmus test," "judicial activism" and "original intent" mean in plain English?
The Senate has the Constitutional duty to "advise and consent" on the President's choice of judicial nominees. For well over a century, that meant that Senators decided whether a particular nominee was qualified to be a federal judge or a Justice of the Supreme Court.
For a long time, Supreme Court nominees did not even appear in person to be questioned by Senators. Their record was public knowledge and they could be confirmed or not confirmed on that basis.
Under these conditions, the question of how they would vote on specific issues that might come before them did not arise. There could not be any litmus test based on whether they were for or against particular policies favored by particular Senators.
That has of course all changed in more recent times. Those who remember the circus atmosphere and smear campaigns during the nominations of Judge Robert Bork in 1987 and of Judge Clarence Thomas in 1991 will be painfully aware of how much things have changed.
Today, some Senators want to know how judicial nominees would vote on specific issues like abortion, racial quotas, or environmental regulations. Senators cannot admit that they want to preselect judges who will rule their way, since that would destroy the independence of the judiciary under the Constitutional separation of powers. But they ask questions that amount to the same thing.