A Double Democratic Litmus Test

Will a Republican President ever again name a non-stealth conservative to the U.S. Supreme Court?  Or will liberal Democrats succeed in imposing not one, but two, Litmus tests on Supreme Court nominations?

The first prospective Litmus test is that Democratic presidents, deferring to the liberal base of the Democratic Party, will name only publicly pro-abortion justices to the Supreme Court.  The second prospective Litmus test is that Republican presidents, preferring to avoid a major political brawl with the liberal base of the Democratic Party (and their allies in the liberal media), will name only stealth nominees.

If these two Litmus tests are institutionalized, the liberal base of the Democratic Party will retain significant influence over the nomination of Supreme Court Justices no matter which party controls the White House and no matter which party controls the Senate.    

Contrast the way President Clinton replaced retiring Justice Byron White when the Democrats controlled the Senate in 1993, with the way President Bush has moved to replace retiring Justice Sandra Day O’Connor when the Republicans control the Senate today.

White, a Democrat appointed by President Kennedy, was one of only two Justices who dissented from the 1973 Roe v. Wade decision that created a right to abortion.  When White retired, Clinton and Republican Sen. Orrin Hatch of Utah, then ranking Republican on the Judiciary Committee, agreed that at least one thing was inevitable: White’s successor would be pro-abortion.

When he nominated former ACLU lawyer Ruth Bader Ginsburg, Clinton declared “she is clearly pro-choice.”  Hatch said: “There’s no question, I’m pro-life, she is pro-choice … but the president said he’s going to have that Litmus test, so that’s a given as far as I’m concerned.”

Hatch even called Ginsburg “an excellent choice.”

At her confirmation hearing, Ginsburg delivered for Clinton.  “This [the decision to have an abortion] is something central to a woman’s life, to her dignity,” she said.  “It’s a decision that she must make for herself.  And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her choices.” 

Only three Republican senators voted against Ginsburg: Jesse Helms (N.C.), Don Nickles (Okla.), and Bob Smith (N.H.).  All are now retired.

When O’Connor retired, President Bush did not move as boldly as President Clinton did in replacing White.  He did not declare his nominee “clearly pro-life.”  In fact, Bush did not even move as boldly in picking a Supreme Court nominee as he had in picking many of his appellate court nominees–some of whom were battle-scarred veterans of lower courts, who had taken unambiguous stands on controversial issues, and who, as a consequence, were filibustered by Senate Democrats.

Instead, he picked John Roberts, one of his appellate court nominees who had not been filibustered.

Roberts, a brilliant lawyer, managed to spend a quarter of a century working on constitutional issues in Washington, D.C., without ever publicly tipping his hand about where he personally stands on constitutional issues.

In 2003, when his appeals court nomination came up in the Senate Judiciary Committee, he was asked about his philosophy of constitutional interpretation. “Well,” he said, “I think I would have to say that I don’t have an overarching, uniform philosophy.”  He was also asked about his statement, in a brief written as deputy solicitor general in the first Bush administration, that Roe’s conclusions “find no support in the text, structure, or history of the Constitution.”  He said: “I do not believe that it is proper to infer a lawyer’s personal views or beliefs from the argument advanced by that lawyer on behalf of a client.” 

Since his nomination, reporters and interests groups have been searching Roberts’s record for evidence of where he truly stands.  There are many intriguing hints.  For pro-life conservatives, one of the most intriguing may be the statement made in The Washington Post this week by commentator Bruce Fein, who served with Roberts in the Reagan Justice Department.  “I know he thought Roe was totally ill-reasoned and extra-constitutional,” said Fein. “Everyone in the department did—we talked about it.”  Fein added that whether Roberts would vote to overturn Roe “is another matter,” depending on how deferential he is to precedent.

The true measure of Roberts as a justice may not come until years after he is confirmed.

But a reckoning will come sooner for President Bush.  When the next vacancy opens, will he duck a healthy political battle–implicitly accept a Democrat-imposed litmus test on his constitutional authority to nominate justices–and pick another stealth nominee?  Or will he prove once and for all that a Republican President and a Republican Senate are ready and able to nominate and confirm an out-of-the-closet conservative to the U.S. Supreme Court.