Litmus test (politics)
Encyclopedia
A litmus test is a question asked of a potential candidate for high office, the answer to which would determine whether the nominating official would proceed with the appointment or nomination. (The expression is a metaphor based on the litmus test
in chemistry.) Those who must approve a nominee, such as a justice of the Supreme Court of the United States, may also be said to apply a litmus test to determine whether the nominee will receive their vote. In these contexts, the phrase comes up most often with respect to nominations to the judiciary.
campaigns, litmus tests the nominees might use are more fervently discussed when vacancies for the U.S. Supreme Court
appear likely. Advocates for various social ideas or policies often wrangle heatedly over what litmus test, if any, the president ought to apply when nominating a new candidate for a spot on the Supreme Court. Support for, or opposition to, abortion
is one example of a common decisive factor in single-issue politics
; another might be support of strict constructionism
. Defenders of litmus tests argue that some issues are so important that it overwhelms other concerns (especially if there are other qualified candidates that pass the test).
The political litmus test is often used when appointing judges. However, this test to determine the political attitude of a nominee is not without error. Supreme Court Chief Justice Earl Warren
was appointed under the impression that he was conservative but his tenure was marked by liberal dissents. Today, the litmus test is used along with other methods such as past voting records when selecting political candidates.
The Republican Liberty Caucus is opposed to litmus tests for judges. "We oppose ‘litmus tests’ for judicial nominees who are qualified and recognize that the sole function of the courts is to interpret the Constitution. We oppose judicial amendments or the crafting of new law by any court."
Professor Eugene Volokh
believes that the legitimacy of such tests is a "tough question", and argues that they may undermine the fairness of the judiciary:
Litmus test (chemistry)
Litmus is a water-soluble mixture of different dyes extracted from lichens, especially Roccella tinctoria. It is often absorbed onto filter paper to produce one of the oldest forms of pH indicator, used to test materials for acidity. Blue litmus paper turns red under acidic conditions and red...
in chemistry.) Those who must approve a nominee, such as a justice of the Supreme Court of the United States, may also be said to apply a litmus test to determine whether the nominee will receive their vote. In these contexts, the phrase comes up most often with respect to nominations to the judiciary.
Usage
During United States presidential electionUnited States presidential election
Elections for President and Vice President of the United States are indirect elections in which voters cast ballots for a slate of electors of the U.S. Electoral College, who in turn directly elect the President and Vice President...
campaigns, litmus tests the nominees might use are more fervently discussed when vacancies for the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
appear likely. Advocates for various social ideas or policies often wrangle heatedly over what litmus test, if any, the president ought to apply when nominating a new candidate for a spot on the Supreme Court. Support for, or opposition to, abortion
Abortion in the United States
Abortion in the United States has been legal in every state since the United States Supreme Court decision in Roe v. Wade, on January 22, 1973...
is one example of a common decisive factor in single-issue politics
Single-issue politics
Single-issue politics involves political campaigning or political support based on one essential policy area or idea.-Political expression:...
; another might be support of strict constructionism
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
. Defenders of litmus tests argue that some issues are so important that it overwhelms other concerns (especially if there are other qualified candidates that pass the test).
The political litmus test is often used when appointing judges. However, this test to determine the political attitude of a nominee is not without error. Supreme Court Chief Justice Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
was appointed under the impression that he was conservative but his tenure was marked by liberal dissents. Today, the litmus test is used along with other methods such as past voting records when selecting political candidates.
The Republican Liberty Caucus is opposed to litmus tests for judges. "We oppose ‘litmus tests’ for judicial nominees who are qualified and recognize that the sole function of the courts is to interpret the Constitution. We oppose judicial amendments or the crafting of new law by any court."
Professor Eugene Volokh
Eugene Volokh
Eugene Volokh is an American legal commentator and the Gary T. Schwartz Professor of Law at the UCLA School of Law...
believes that the legitimacy of such tests is a "tough question", and argues that they may undermine the fairness of the judiciary:
- Imagine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision [after carefully examining the arguments]. "Perjury!" partisans on the relevant side will likely cry: They'll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers' expectations.
- Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge's duty to sincerely consider the parties' arguments.