The following is an excerpt from Peter M. Shane | July 5, 2017 | Slate.com |
It wasn’t that long ago that “litmus test” was a dirty phrase in judicial nominations. In the late 1970s, I clerked for a distinguished Jimmy Carter appointee to the U.S. Court of Appeals for the 5th Circuit. My judge was troubled that, en route to his nomination, he had been asked by the Carter administration for his general views on affirmative action—views that, as it happened, were entirely in accord with the president’s. He believed, however, if an outstanding lawyer had been a loyal member of the president’s party, it was inappropriate to impose any more fine-grained test of a potential judge’s ideological compatibility.
Decades later, the discrete litmus tests each party imposes on judicial nominees—and particularly those imposed by the Federalist Society–enamored Republican Party—have evolved into a nearly procrustean template. No clearer evidence could be imagined than Donald Trump’s outsourcing the selection of federal appellate judges, including Supreme Court Justice Neil A. Gorsuch, to the Federalist Society. And at the current moment, no aspect of Federalist Society orthodoxy should be more troubling than its members’ frequent genuflection to presidential power. Going forward, it is imperative that no judicial candidate nominated by President Donald J. Trump be confirmed by the Senate without a far more thorough and well-informed interrogation of their views of executive power than we have witnessed so far.
Since the 1980s, the Federalist Society and its judicial fellow travelers have become unabashed champions of something called “unitary executive theory.” Under this doctrine, the Constitution supposedly guarantees the president complete command-and-control authority over how every member of the executive branch exercises whatever legal authority Congress has vested in them. Moreover, Federalist Society lawyers are inventive at divining broad presidential powers in the Constitution; the current “emoluments” fight shows this creativity in the effort to fend off constitutional restraints on self-dealing.
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