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U.S. Rep. Mazie Hirono and former Gov. Linda Lingle say they would not apply single-issue litmus tests to Supreme Court nominees if elected to the U.S. Senate, but Hirono would be more likely to consider legal opinions on abortion rights, health care reform, campaign finance and gender discrimination when evaluating potential judges.
Senators have the distinct constitutional authority to advise and consent on the president’s judicial nominations, a check on the president’s power to shape the federal court system.
The Supreme Court is ideologically divided between conservatives and liberals, a split that could be influenced by which political party controls the White House and the Senate after the November elections and holds power when vacancies on the court occur.
"This is a critical issue for both the future of our country and our state," Hirono, a Democrat, said in a statement. "The next president could potentially nominate the next five Supreme Court justices and our next U.S. senator will be one of Hawaii’s two voices in voting on his or her confirmation. Our Supreme Court should be independent from either party or special interest groups, but over the past decade, we’ve seen an increase in ideologically driven decisions and this is troubling."
Lingle, a Republican who successfully appointed two justices to the state Supreme Court as governor, said she would not use any personal disagreements on political or policy issues to disqualify nominees.
"As I did as governor, if I am elected as Hawaii’s next U.S. senator, I will assess a judge’s qualifications by reviewing their decisions while asking — are they a serious student of the law, have they written deeply on legal issues, rather than sound byte-type judging, and have they not only served the public before, but have they had to write complex decisions?" she said in a statement.
"Again, I would not have any litmus test at all, on any issue, other than that they be a serious student of the law."
Hirono, an attorney, said a single-issue litmus test on nominees does not generate a fair-minded Supreme Court. But the congresswoman did identify several issues she would take into consideration during the confirmation process.
She described Roe v. Wade, the 1973 ruling that legalized abortion, as the "law of the land" and said she strongly disagrees with Republicans who want it overturned. Hirono also said she would find it difficult to support a nominee who would overturn the federal health care reform law, which the court narrowly upheld as constitutional in June.
She cited Citizens United v. Federal Election Commission, the 2010 ruling that allowed unlimited independent political spending by corporations and labor unions, as an example of an "ideologically based decision" that a more balanced court might reject.
Hirono also referred to Ledbetter v. Goodyear, a 2007 ruling that found that a woman who had worked at a tire plant had waited too long to file a pay discrimination lawsuit and was not entitled to back pay and damages. Democrats in Congress pushed through a law in response to the ruling in 2009 that made it easier for women to pursue pay discrimination claims.
"This was one of the first actions we took as Democrats in the majority to allow women to not be discriminated against and to be able to pursue remedies for being discriminated against on the basis of gender," she said.
Lingle has had firsthand experience as a chief executive responsible for judicial nominations. As governor, she successfully placed two justices — James Duffy Jr. and Mark Recktenwald — on the state Supreme Court, five judges on the Intermediate Court of Appeals, and 17 judges on the Circuit Courts.
The Republican had to help steer the nominees through a Democratic-controlled state Senate. She also had a potentially historic nominee rejected by the Senate, and has learned that appointees may not rule as expected once on the bench.
Duffy, who has retired from the state Supreme Court, wrote the unanimous opinion in 2007 that found the Lingle administration should not have exempted $40 million in state harbor improvements for the Hawaii Superferry project from environmental review. Lingle has called the decision a "major departure from well-established law," but the ruling — and the ultimate failure of the Superferry project — is an unwelcome part of her legacy.
Lingle’s nominee for chief justice, Katherine Leonard, an appeals court judge who would have been the first woman to lead the court, was voted down in the Senate in 2010 after the Hawaii State Bar Association rated her "unqualified." Lingle then chose to tap Recktenwald, whom she had previously appointed to the court, as chief justice, and he was confirmed.
"Instead of using a litmus test, the only criteria I used was whether a judicial candidate will be objective in interpreting the law, and will refrain from making new law from the bench. Their role is to interpret the law, not to write new law, which is the province of the Legislature, who represents the will of the American people," Lingle said of her approach.
"Even if some senators do employ their own litmus test, I do not believe it is very effective because even if the federal judicial candidates answer your question, which they rarely do in congressional hearings, they never actually tell you what they feel one way or the other on controversial issues."
There is no guarantee that Hawaii-born President Barack Obama, if he is re-elected, or former Massachusetts Gov. Mitt Romney, the Republican presidential candidate, will have to fill vacancies on the Supreme Court.
Four of the court’s nine justices are in their 70s — Associate Justice Ruth Bader Ginsburg is the oldest, at 79 — but they are appointed for life.
"The next appointment is probably going to — in my view — be critical as to the direction of the court over the next decade," said Jeff Portnoy, an attorney who works on constitutional issues, citing the court’s 5-4 rulings in significant cases.
Portnoy said senators have used the confirmation process to obstruct the president, particularly on nominees to federal appeals courts and district courts, leaving vacancies unfilled and placing a strain on the federal court system. According to the U.S. Courts, there are 76 judicial vacancies and 34 nominations pending, most at the district court level.
"The litmus test that’s now applied to judges dealing with issues like abortion and affirmative action and gay rights and all these social issues have made the confirmation process very ugly," Portnoy said.
Steven Shapiro, national legal director for the American Civil Liberties Union, spoke with reporters in Honolulu last week about the Supreme Court and called the confirmation process "largely broken."
"We have to just reduce the level of rank partisanship and recognize that confirming a Supreme Court justice is a serious responsibility that requires serious thought and serious discussion, and shouldn’t break down immediately and irrevocably along partisan lines," he said.
Shapiro said many senators have a "gotcha mentality" that does not reward candor, but he also believes nominees should be more forthright.
Despite the partisanship that often engulfs the confirmation process, most nominees to the Supreme Court are confirmed. The Senate has only rejected a dozen nominees in history; the last, conservative Robert Bork, was voted down in 1987.
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