ALMOST A LITMUS TEST: WHY GORE WAS RIGHT TO ADMIT JUSTICES' VOTES CAN BE PREDICTED

By JULIE HILDEN


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Wednesday, Oct. 04, 2000

I may have been the only one cheering. I know my favorite moment in Tuesday's Presidential debate was unusual - but as a lawyer, I was moved by this moment. It meant a lot to me. It was the moment when Vice President Gore admitted that it is very possible to predict how nominee Justices will decide constitutional issues prior to the time they are appointed to the Supreme Court.

After both candidates declared they would never use a litmus test for Supreme Court Justices, Gore underscored nevertheless that eschewing a litmus test does not mean donning a blindfold. Gore stated that "the history of a lower court judge's rulings" can provide "a good idea" of how the judge, if appointed to the Supreme Court, would vote on the Court. He is absolutely right.

Why Nominees' Supreme Court Votes Are Often Quite Predictable

Despite famous examples to the contrary - Justice Souter might be the most recent - Presidents generally do have an awfully good idea of how their Supreme Court nominees will vote on specific issues once on the Court. Judge Ruth Bader Ginsburg, for example, was not suddenly likely to stop supporting women's rights after a career of furthering them as an advocate, and President Clinton (as well as Hillary Clinton) must have known that when then-Judge Ginsburg was nominated. Unsurprisingly, in her historic opinion in the Virginia Military Institute decision, Justice Ginsburg wrote true to her beliefs, decrying stereotypes of women used as justifications to undervalue or exclude them.

Moreover, as Gore suggested, lower court judges often have a history of written decisions that is even more highly predictive of their future Supreme Court votes than Ginsburg's history of advocacy and teaching was of hers. Often - but not always. Gore was precisely correct to say that a lower court judge's history of decisions gives a "good idea of" - not a "great guide to" or an "excellent idea of" - how he or she will vote once on the Supreme Court.

Several factors make lower court decisions an imperfect guide to a nominee's Supreme Court performance. One factor is that federal appellate judges, who sit on three-judge panels, can avoid writing opinions in controversial decisions by arranging to have like-minded colleagues write the decision instead. A vote in favor of a particular, controversial result is ambiguous when the voting judge does not also write the opinion: Did the judge concur in his colleague's reasoning entirely, or just sign on because his different reasoning was not, in his view, worth a separate opinion? Or was there, perhaps, a little horse-trading involved - so that the judge gained her colleague's vote in another case as a result of joining the colleague's opinion in this one? It's hard to tell. And even when a judge does write a decision, rather than merely joining it, she is writing for a panel of three - and like eating for two, that is challenging. It is also often a compromise.

Another factor that lessens predictability is that lower court judges - depending on the Circuit in which they sit and for how long they have served - will almost certainly confront Constitutional issues much less frequently, and in less crucial and controversial situations, than Supreme Court Justices do. And when they do, they can always pass the buck upstairs. In the overwhelming majority of lower court decisions, Supreme Court precedent - even if not dispositive - can still be offered as a justification. The subtext is "I'm not really doing this; the Supreme Court is making me do it."

Appellate judges also have the option of remanding difficult cases to the trial court for fact finding on a crucial issue (say, whether the procedure at issue was factually a "partial-birth abortion"), with the result potentially being that the trial judge is one who writes the controversial opinion (say, the abortion is partial-birth, and yet it is still protected).

But with all this said, it is still hard to maintain that an appellate judge with even a five year career, who has likely authored fifty opinions - or a trial judge with a career of the same length, who may have authored literally hundreds - is not, to some extent, an open book. The open book in question is, of course, the Federal Reporter - and in it, with Supreme Court nominees, we can read our fate.

The Predictability of Nominees' Votes Suggests A Need For More Aggressive Confirmations

Given that judges are often very predictable, why do Presidents (and candidates like Gore and Bush) nevertheless eschew a "litmus test"? If they have an excellent idea of how a judge will vote, why not acquire a perfect one? And why are judicial confirmation hearings so "hands off" when it comes to asking the nominees questions like whether they will overrule Roe v. Wade? Nominees have recently refused to answer such questions, and Senators have not pressed the point. Indeed, there is arguably an unwritten rule that the Senate, like the appointing President, will have to settle for a very good guess.

There is a reasonable rationale for this unwritten rule: It would be improper for a President to exact promises from a sitting Justice as to how he will vote on a current case, and thus it follows that it is arguably improper for a President to elicit a prediction from a nominee as to how he will vote in the future. The logic of this argument is hardly perfect, though. Indeed, the fact that it is improper for a President to try to influence a sitting Justice may cut the other way. If Presidents know they cannot pressure sitting Justices, then nominees have little to fear if, after predicting how they will vote in confirmation hearings, they change their mind when actually on the bench. And, in any case, Supreme Court Justices - with life tenure and fixed salaries constitutionally guaranteed - have the best job security of anyone in the federal government.

Candidates break campaign promises and survive; nominees are in a far better situation. And after all, isn't it a little ironic that the insulated, protected Justices - with no democratic accountability - are the ones who can respectfully demur to answer Congressional questions when the rest of us decidedly cannot? The only democratic checks on Justices are through the questions of the appointing President and confirming Senators who are themselves democratically elected. Can't they ask the questions they desperately want answered?

Gore indicated during the debate that he will take off the kid gloves with potential nominees a bit, and he may be a better man for it. After he charged that Bush's references to appointing Justices similar to Scalia and Thomas were "code words" for a promise to appoint pro-life Justices, Gore candidly admitted he would choose Justice nominees with a "philosophy" indicating they would uphold Roe v. Wade. Behind closed doors, in a quiet moment, might he actually ask a nominee how he or she would vote? I wouldn't think worse of him if he did.


Julie Hilden is a FindLaw Columnist, a freelance writer, and author of the memoir "The Bad Daughter" (Algonquin 1998). From 1996-99, she practiced First Amendment law at the Washington, D.C. firm of Williams & Connolly.

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