Jul 142009

As I watch the Sotomayor confirmation hearings in a live CSPAN web feed,  a thought has occurred to me: not all litmus tests are bad.

Much ado is made with regard to ensuring that judges raised to the Supreme Court bench unbiased and impartial, and that they not be subjected to ideological litmus tests. I agree that justices should judge constitutionality without respect to persons, parties, or extra-constitutional ideologies. First, one must honestly and openly recognize that screening for bias and partiality is itself litmus test. Indeed, it is a right and salutary litmus test. However, it lacks power and significance if one does not ask by what standard a nominee would determine bias and partiality in order to render an opinion according to precedence and the facts in the case. That is, one must know the absolute rules by which a nominee would judge the relative and contextual legal merit of arguments. Put another way, I won’t trust a length measurement unless I am reasonably certain that the ruler or tape used is accurate and sufficiently precise for the scale and purpose of measurement.

This leads me to an ideological litmus test that subsumes that just mentioned and that is entirely appropriate and essential for SCOTUS nominees. That test is whether as a justice he or she would interpret the Constitution and preceding opinions according to a Jeffersonian or Hamiltonian hermeneutic. Jefferson favored a narrow interpretation that would forbid any power to the federal government not explicitly granted to it by the Constitution, thus binding it in tight chains. Hamilton favored a broad interpretation that would grant any power to the federal government not explicitly forbidden by the Constitution, thus hardly binding it at all.

Were I a senator on the Judiciary Committee, I would not vote to confirm any nominee explicitly or tacitly approving of the Hamiltonian hermeneutic. I make no apology for that. Rather, I demand an explanation and apology from those committee members who would not apply such a test.