Democrats Are Applying Litmus Tests To Gorsuch Their Favorite Justices Wouldn’t Pass

Democrats Are Applying Litmus Tests To Gorsuch Their Favorite Justices Wouldn’t Pass

The ever-changing interpretation of the Constitution Senate Democrats promote imposes litmus tests nearly every justice who is not currently serving would fail.
Frank Scaturro
By

Today the Senate Judiciary Committee takes up President Trump’s nomination of Neil Gorsuch to the U.S. Supreme Court. The full Senate is expected to vote on the confirmation later this week.

Since Gorsuch’s nomination, Democratic senators have been imposing the same litmus tests Hillary Clinton announced during last year’s presidential campaign she would use for a Supreme Court justice. Yet no past justice, including recent liberal icons, would pass these same litmus tests Democrats have recently decided should apply to Supreme Court nominees.

“I have a bunch of litmus tests” for the Supreme Court, Hillary Clinton admitted during a presidential debate. She proceeded to emphasize overturning the court’s precedent in Citizens United v. Federal Election Commission and upholding the decisions that declare abortion and same-sex marriage to be constitutional rights.

In fact, she added regarding the latter issue, “We have to go further to end discrimination against the LGBT community,” which, given how much Obergefell v. Hodges already transformed constitutional law, leaves room for little besides judicially imposed sanctions against believers in the traditional definition of marriage.

The election may be over, but it is clear from numerous Democratic senators’ statements during the Senate’s consideration of Gorsuch that they retain these same litmus tests. This reflects a short-sighted vision of acceptability for the Supreme Court.

Citizens United Was About Censorship

So much of the hype against the Supreme Court’s 5-4 decision in Citizens United ignores what the court did: It struck down prohibitions on broadcast and similar communications mentioning the name of a candidate within 60 days of a general election or 30 days of a primary where the speakers funding the message were organized as unions or corporations.

It amounted to a censorship law, punishable by imprisonment, that particularly affected those of average means. (How effectively can people who are not wealthy organize to engage in political speech directed at a large audience without assuming a corporate form?) To have decided the case otherwise would have allowed the government to punish political speech, which is at the heart of the First Amendment, when it matters most. Added to Clinton’s hubris in emphasizing the case as a litmus test, the case concerned a video that criticized her.

Many critics of Citizens United shoehorn their opposition into the narrative that the conservative justices who gave the Supreme Court its 5-4 majority are the tools of corporations. This does not withstand scrutiny when one considers the history of the 1947 law banning independent expenditures by corporations and unions that the Court struck down.

That law only passed over the veto of President Harry Truman, who called the provision “a dangerous intrusion on free speech.” Five Supreme Court justices writing soon afterwards would arrive at the same conclusion as the Supreme Court would in Citizens United that the act was unconstitutional: Hugo Black, William O. Douglas, Frank Murphy, and Wiley Rutledge concurring separately in United States v. CIO (1948), and Chief Justice Earl Warren joining Black and Douglas dissenting in United States v. Automobile Workers (1957). They expressed themselves in separate opinions where the majority did not directly reach the question of constitutionality, but it is noteworthy that these were considered liberal justices with no proclivity to favor corporations.

Roe v. Wade Is Controversial to Both Sides

“Liberal” and “conservative” are imperfect labels subject to change where the high court is concerned, and that is illustrated by the longest-standing Democratic litmus test: upholding Roe v. Wade. Nothing about the Fourteenth Amendment’s text or history in the century after its 1868 ratification suggested it dictated the nationwide legalization of abortion, which had been established as a crime under both common and statutory law and accepted as such by the giants of the Supreme Court.

The latter category included Justice John Marshall Harlan, the great dissenter from the “separate but equal” holding of Plessy v. Ferguson. It also included Louis Brandeis—author of the landmark Olmstead v. United States dissent asserting “the right to be let alone”—who along with Oliver Wendell Holmes joined a unanimous decision upholding the revocation of a doctor’s license for performing an abortion.

For that matter, even members of the Roe Supreme Court, including modern liberal champions William Brennan and Thurgood Marshall, would fail still another litmus test: A mere three months before announcing the abortion decision, the Supreme Court summarily rejected the claim of a same-sex couple that the Constitution gave them a right to marry, declining to take seriously the argument that would become law in Obergefell.

All of this highlights a problem with the ever-changing interpretation of the Constitution Senate Democrats promote: It imposes litmus tests nearly every justice who is not currently serving would fail, from the giants of the more distant past to recent liberal heroes. That’s not a compelling standard for an institution whose rulings are supposed to stand the test of time.

Frank Scaturro served as counsel for the Constitution on the staff of the Senate Judiciary Committee between 2005 and 2009, in which capacity he worked on the nominations of John Roberts and Samuel Alito to the Supreme Court and Neil Gorsuch to the Tenth Circuit. He is the author of, among other titles, "The Supreme Court’s Retreat from Reconstruction" (Greenwood Press, 2000). Follow him on Twitter at @FrankScaturro.

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