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Jewish World Review June 25, 2002 / 15 Tamuz, 5762

Doug Bandow

Doug Bandow
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Consumer Reports

Judicial litmus tests | The rule of law is a scary thing. At least if you are a Senate Democrat seeking to block judicial nominees such as Miguel Estrada, who has been waiting for more than a year for a hearing.

Verboten are nominees who believe judges should not make policy. And who do not favor abortion. Earlier this year Senate Judiciary Committee member Dianne Feinstein (D-Calif.) declared: "I don't want to see Roe vs. Wade overturned." Although she claimed that her position didn't represent a "litmus test," there's no better example of one. Not that Sen. Feinstein is alone in this regard. For instance, during his ill-fated presidential run, Al Gore explained: "I'm not comfortable with litmus tests for a Supreme Court nomination." But, he added, "there are ways to understand whether or not a potential nominee has an interpretation of the Constitution that is consistent with mine" on the issue of abortion.

Eight years before candidate Bill Clinton declared: "I hate to have any litmus tests, but ... I would want to know that Roe v. Wade would be secure."

Litmus tests once were rarely applied to judges. In its 1980 platform, the GOP promised to "work for the appointment of judges ... who respect traditional family values and the sanctity of innocent human life." This was interpreted as a pro-life endorsement, even though Republican appointees Anthony Kennedy, Sandra Day O'Connor and David Souter all later voted to uphold Roe. Still, Democrats routinely posed as defenders of judicial integrity. In November 1980, then congressman Al Gore promised: "I would not use any specific issue as a litmus test for the nomination." When pro-life groups criticized the nomination of O'Connor, Sen. Howard Metzenbaum (D-Ohio) thundered: "I believe there is something basically un-American about saying that a person should or should not be confirmed for the Supreme Court ... based on somebody's view that they are wrong on one issue."

Sen. Edward Kennedy (D-Mass.) agreed: "It is even more offensive to suggest that a potential justice must pass the litmus test of any single-issue group."

Sen. Metzenbaum later joined Sen. Joseph Biden (D-Del.) in criticizing the use of "an ideological litmus test." Metzenbaum proclaimed himself to be "aghast," since "to place ideology above integrity, legal experience and judgment in selecting judicial candidates" would "harm the judiciary," Biden termed "outrageous" political pressure for a "right-wing litmus test for judges."

Said Sen. Patrick Moynihan (D-N.Y.): "There is a word for the ideological tests for the judiciary which are seemingly now in place in the White House and the Justice Department. That word is corruption."

After the nomination of William Rehnquist as chief justice, Sen. Paul Simon (D-Ill.) opined: "to use a nominee's views on any other single issue as a 'litmus test' ordinarily would be unfair and inappropriate."

Soon-to-be presidential candidate Rep. Richard Gephardt (D-Mo.) announced that "as president, I would not make abortion a litmus test for my judicial appointments."

Prospective candidate Mario Cuomo denounced using "the selection of a judge to attempt to assure a result in advance." He added, "Whether any of the [judicial] candidates would seek to overrule Row v. Wade ..., or any other specific precedent, are not appropriate questions for the president or the Senate."

With the Robert Bork fight, Judiciary Committee Chairman Biden charged that President Ronald Reagan had "politicized this matter by allowing his Justice Department to adopt litmus tests for nominees."

Sen. Patrick Leahy (D-Vt.), now Judiciary Committee chairman, announced: "We have to make sure somebody is not appointed based on litmus test commitments."

After the nomination of Clarence Thomas, Majority Leader George Mitchell (D-Maine) complained that Presidents Reagan and Bush established a litmus test on: "That person's position on abortion."

Sen. Chris Dodd (D-Colo.) observed: "I am not interested in a litmus test of single issues." (More recently, however, he opined: "We don't want this to be a judiciary jammed and packed with people who've come out of the Federalist Society with extreme views.")

Sen. Biden even criticized feminist groups for working to turn Roe into a litmus test. Similarly, explained Sen. Dennis Deconcini (D-N.M.), he did "not hold that [abortion] as a litmus test for confirmation." And short-lived presidential candidate Jerry Brown emphasized, "You don't need a litmus test."

However, in 1986, Sen. Simon presciently warned: "Some of those who criticize the rigidities of right-wing ideology would impose rigidities of the left." As are Senate Democrats today.

Judicial candidates should demonstrate both fidelity to the Constitution and openness to argument, not be forced to meet a political litmus test imposed by partisan ideologues. Sen. Leahy recently urged the administration to choose "nominees primarily for their ability instead of for their ideology."

He and his Democratic colleagues should use the same standard to approve nominees.

JWR contributor Doug Bandow is a senior fellow at the Cato Institute. Comment by clicking here.


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09/13/00: AlGore's risky budget policies
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© 2002, Copley News Service