Beware the Litmus Test

In this post over at Confirm Them, my colleague Andrew writes:

if the nominee says that substantive due process (i.e. the vague rationale underlying cases like Roe v. Wade) is illegitimate, then there is no justification for asking specific policy questions. But, if the nominee says that SDP is a legitimate weapon in the judicial arsenal, then that’s tantamount to saying judges can attack whatever legislative policies they find shocking or fundamentally unfair, and so then it is appropriate to ask nominees about specific policies and issues (or better yet it would be appropriate to simply vote against any nominee who supports SDP).

But in an object example of the danger of imposing litmus tests, I would refer everyone to this speech by Judge Janice Rogers Brown. In it, at the bottom of page three, she argues that "[t]here are at least two problems with dismissing the idea of substance in the due process clause."

By the measure set forth above, the Democrats would be entirely entitled to ask Judge Rogers Brown about every political issue in the book, and then vote against her accordingly. And according to Andrew's standard, they would (and should) be joined by the Republicans.

My point here has nothing to due with the merits (or lack thereof) of either Andrew's or Judge Rogers Brown's position on substantive due process. Rather, my point is this: Let's be very careful about the litmus tests we set up in an effort to ensnare a nominee that some don't like -- because they will all have precedential value when a nominee about whom everyone is more enthusiastic comes up for consideration.