A Litmus Test for Judicial Nominees
If you had only one question, what would you ask?
by Scooper
28 February — 22 March, 2003
It's back. Around and about the 30th anniversary of Roe v Wade, presidential candidates are trumpeting their stands on abortion, and Congress is preparing to go to war against itself over appointments to the federal judiciary. Both sides of the Congressional aisle assume that there is a natural "litmus test" for judges: "How might you rule on matters of Reproductive Choice versus the Right to Life?"
I have my own litmus test. If I were the President, I would ask each prospective nominee to the Supreme Court one single question: "What is Justice? You have two hours. Talk."
I would reject candidates for the following reasons:
- Giving a definitive answer. None exists. For every definition you can give, someone can come up with a situation in which your definition is unworkable. If you have a definitive answer and are not God, yours is wrong.
- Finishing on time. Any nominee to the Supreme Court who can't talk about Justice for more than two hours, doesn't know enough about it, doesn't care enough about it, or both.
- Implying that Governments (or Courts) define Justice. Justice is prior to any government, because governments are instituted to secure Justice for the governed. In particular, Justice is prior to Democracy. Democracy is simply the best way known thus far to secure Justice for the governed, because it is the governed who choose their government, and do so at regular intervals.
- Discussing Justice without giving insights into Human Nature. To do Justice with respect to Humans, one must know who they are, what they are like, and what is Good for them. Since knowledge of the Good cannot be obtained by uaided reason, this discussion must include Religion as well as Science, and lead to a side discussion of the meaning of the Separation of Church and State.
- Downplaying the centrality of conflict in the question of Justice. All questions of Justice involve deciding between the competing interests of two or more parties, whether the case is of a civil or a criminal nature.
- Discussing Justice without discussing economics. This is called distributive Justice, which concerns the distribution of wealth, and with it power and opportunity in society. This distribution tends to concentrate by race, religion, or other groupings in all societies. I would therefore require a prospective nominee to speak knowledgably on these subjects as well.
- Omitting a discussion of United States Justice toward US and non-US persons in war and peace. Or did you forget about the 3000 internees at Guantanamo?
- Failing to discuss the human use of human and non-human beings. This should open up a wide ranging exploration of our relationships with each other, our zygotes and our cloned cells, as well as our pets, and domestic and wild animals.
I would also expect the candidates to discuss retributive justice and how to deal justly with criminals, including repeat offenders, covering both psychological and sociological aspects of criminality. In fact, I would expect the candidates for nomination to the Federal Judiciary to be able to speak at length about the history and development of the idea of Justice in our own culture, those that preceeded it, and those with whom we share the world.
I think you get the idea. Justice is a vast, complicated subject, as inexhaustible as theology, and in some sense related to it. "For what does the Lord require of thee, but to love kindness, to do Justice, and to walk humbly with thy God?"
Those who would reduce it to one's stand on abortion demean the memories of all who have suffered injustice, and all those who sacrificed to further Justice. Reducing the question of Justice to the question of abortion demeans the public discourse necessary to maintain a democracy.
I would like to thank Professor Kenneth Sharpe from whom I learned the importance and impossibility of fully answering of this one question: "What is Justice?" during the academic year 1974-5 at Swarthmore College. May you make answering it part of your life's quest.
