1. Joined
    02 Jan '06
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    17 Feb '16 13:451 edit
    Professor Eugene Volokh believes that the legitimacy of litmus 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.[
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