Wednesday, October 15, 2008

The "litmus test" question

In both the Presidential debate and the Washington State gubernatorial debate tonight, the candidates were asked about future court appointments.

Whoever is governor 2009-2012 will be appointing a replacement for Judge Gerry Alexander when he retires.  The first question of Gregoire and Rossi was: "Who's on your list to replace Gerry Alexander?  Will you have a litmus test?"

The Presidential candidates were asked a similar question during their debate: would they consider appointing a Supreme Court judge whom they do not agree with on some issues -- like abortion and same-sex marriage?

I was annoyed by how everybody answered this question.  Everybody falls over themselves to affirm, "I would never apply a litmus test, I will appoint the most qualified person."

Of course all appointees should be the most qualified persons available.  And one of the qualifications for the position of Supreme Court judge (on state or federal level) is commitment to the constitution.

The following are fundamental principles of the U.S. Constitution:
  • All rights and powers originate in the people. 
  • Government, at any level,  can only exercised the rights and powers explicitly granted by the people.
Ergo, any person who says, "The right of privacy is not established in the constitution" is not qualified to be a judge.

To some extent both liberals and conservatives recognize the existence of a "public sphere" in which our interactions with each other can be legislated and adjudicated, and a "private sphere" in which government should not intrude. We may disagree on where the line is drawn, but for any conservative to deny the existence of a private sphere contradicts everything they say about why government should be limited.

As I see it, a judge who would consider it constitutional for government to regulate sex and reproduction, and who would authorize the state to force a woman to carry a pregnancy to term against her will, is not qualified for the position.  That would be an honest answer from Gregoire or Obama -- and Obama, at least, did bury a recognition of that in the midst of "oh no I wouldn't."

And an honest answer from Rossi or McCain would be that they believe that constitutional principles were violated in the Roe vs Wade decision, and therefore any judge who would not overturn Roe vs Wade is not qualified for the position -- and McCain did bury a recognition of that in the midst of "oh no I wouldn't."

I would have been a lot happier if they were direct about it.  I would be a whole lot happier if our Washington governor candidates were even close to that direct.

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