President Bush is either a liar or a fool when he says he has no idea where David Souter stands on abortion, affirmative action and so on. Seeking a formula that will reassure liberals without alarming conservatives, and vice versa, he said there was no "litmus test" but that his Supreme Court nominee would "interpret the Constitution and not legislate." And thus the Summer Supreme Court hypocrisy festival is underway once more. Herewith a handy buzzword guide.
Advice and Consent: A "strict construction" (see below) of these words would seem to entitle the Senate to a major say in choosing Supreme Court justices. Yet conservatives generally interpret this phrase to mean that the Senate must approve anyone the president nominates unless he actually can't tie his shoes on the third attempt.
Balance: What liberals now claim they want among the nine justices. History does not record any liberal calls for "balance" when the court was tilted to the left and liberal presidents were doing the appointing.
Conservative: This can mean two things. It can mean a principled belief that unelected judges shouldn't thwart democracy by sticking their own political values into the Constitution. Or it can mean, "Here is a golden opportunity to stick conservative political values into the Constitution. Liberals did it for years -- why shouldn't we?"
Election Returns: Commentators can't resist Mr. Dooley's line, "th' supreme coort follows th'iliction returns" -- even though the entire controversy over the court centers on the fact that it does not follow the election returns. Conservatives resent this. However, when liberals campaign against a nominee, conservatives complain about the "politicization" of the judiciary. They've got it backward. The sitting Supreme Court is supposed to be above politics. Choosing justices is where politics is supposed to come into it.
Ideology: Very bad for a judge to have, everyone agrees. (But see "philosophy" below.) In announcing Souter, Bush reaffirmed the traditional pretense that he sought "excellence" and that he would never dream of finding out whether a potential justice agreed with him on issues he has long claimed to be vitally important.
Judicial Activism and Judicial Restraint: Conservatives believe that activism is bad, and restraint is good. Except that the 1988 Republican platform calls for judges who hold that "the 14th Amendment's protections apply to unborn children," which means judges who ban abortion no matter what the legislature votes. Oh, yes, and conservatives think the special prosecutor law is unconstitutional, and so is affirmative action, and maybe New York City rent control, and so on and so forth.
Litmus Tests: Sometimes called "single-issue litmus tests." Bad, very bad. Especially the other side's. While pro-choice senators were warning President Bush not to apply a pro-life "litmus test" to his nominee, pro-choice groups were sending out mass mailings promising to oppose anyone who would vote to reverse Roe v. Wade.
Philosophy: Good to have, as long as it doesn't make you an "ideologue" (see above) or suggest that you have "pre-judged" (see below). There is a germ of a legitimate distinction here, between having a theory of the role of the judiciary (philosophy) and merely being determined to impose your political will (ideology). But usually a "philosophy" is what I have, and an "ideology" is what you have.
Original Intent: What conservatives say they want judges to follow. Makes it sound simple, which it isn't.
Pre-Judge: A very, very bad thing to do, it seems. Preferable: an "open mind." In the Bork episode, Republicans savaged Democrats for having "pre-judged" his suitability before the hearings. Then Democrats savaged Bork for having "pre-judged" constitutional issues that might come before him on the court.
The whole point of having a judicial "philosophy" -- good, remember? -- is that it leads you to understandings on specific issues. Abortion, for example, has been the predominant constitutional issue for almost two decades. Anyone who hasn't thought it through and reached a conclusion by now shouldn't be eligible to graduate law school, let alone sit on the Supreme Court.
Questions on Specific Issues: Should a Supreme Court nominee have to answer them? Of course. Except for Bush's understandable desire to have it both ways, why should this be a guessing game? That would indeed -- as Robert Bork has charged -- put a premium on candidates with no record of having thought about the matters they will have to deal with. Nominees shouldn't have to answer an endless string of hypotheticals. But on the great constitutional questions -- does the Bill of Rights apply to the states? -- and the big 5-to-4 issues of recent years -- abortion, reverse discrimination, flag-burning -- there's no reason the Senate shouldn't expect an answer and an explanation of how it was derived.
Pro-Choice: Should mean: believes in a woman's right to choose abortion. Usually does mean: believes the right to abortion is in the Constitution. Not the same thing at all.
Strict Constructionism: The third component of the great conservative judicial trinity, along with "judicial restraint" and "original intent." These values are not always compatible. For example, the First Amendment says, "Congress shall make no law ... abridging the freedom of speech." A strict construction of those words would lead to a broad, "activist" approach. Yet few self-proclaimed strict constructionists are First Amendment absolutists. Where does Souter stand? The only way to find out is to ask.