Clicking on banner ads enables JWR to constantly improve
Jewish World Review June 25, 2002 / 15 Tamuz, 5762

Doug Bandow

Doug Bandow
JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
David Limbaugh
Michelle Malkin
Chris Matthews
Michael Medved
MUGGER
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Judicial litmus tests

http://www.NewsAndOpinion.com | 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.

Up


06/18/02: Killer teeth?
06/11/02: Europeans defending whom?
05/24/02: Threatening pharmaceutical innovation
05/14/02: The war crimes fantasy
05/07/02: Paying a high price for befriending Saudi princes
04/30/02: The price of postal monopoly
04/23/02: The war on charity
04/16/02: The forgotten human right
03/27/02: Cuba's struggle to be free
03/20/02: How to defeat Cuban communism
03/12/02: Junk science, redux
03/06/02: Axis of hubris
02/27/02: Washington-style campaign reform: incumbent protection
02/20/02: The grand Enron morality play
02/12/02: Rebuilding what?
02/05/02: Succumbing to the terrorist temptation
01/29/02: Democrats for what?
01/22/02: The Iraqi question
01/14/02: Profiling frequent flyers
01/08/02: Trade, not aid
01/02/02: Treason by any other name
12/26/01: Preserving freedom in an unfree world
12/17/01: Dealing with terrorism's aftermath
12/10/01: Emerging friendships?
12/04/01: Uncle Sam: Insurer of last resort
11/28/01: Expanding the circle of trade
11/20/01: Free to be stupid
11/13/01: The meaning of compassion
11/07/01: Patriotic scoundrels
10/30/01: The coming postal raid
10/16/01: First, do no harm
10/12/01: Good news from a suffering land
10/04/01: Defending whom?
09/25/01: The wrong solution to the wrong problem
09/21/01: The price of terrorism
08/28/01: Uncle Sam's retirement scam
08/21/01: Canberra's quaint naivete
08/14/01: Uncle Sam's false fuel economy
08/08/01: The Clinton administration in drag
07/31/01: The high cost of government
07/24/01: Kill the campaign reform illusion
07/17/01: Do as I say, not as I do
07/11/01: Lawyers at play
07/05/01: Western blundering, Macedonian disaster
06/26/01: How best to honor Bill Clinton?
06/19/01: A maturing Europe?
06/15/01: Tell Beijing to mind its own business
06/06/01: Ukraine's boiling cauldron
05/31/01: Protecting privacy from Uncle Sam
05/22/01: America's Balkan quagmire
05/09/01: The Taiwanese flash point
05/01/01: Globalization serves the world's poor
04/24/01: Who's cheating whom?
04/10/01: The NCAA scam
04/03/01: Balkan stupidities
03/27/01: McCain doesn't want a 'risk for our country'
03/20/01: Dubious Korean alliances
03/06/01: Coercive patriotism
02/27/01: Bombing without end
02/20/01: A dose of misplaced outrage
02/13/01: Psst: Tax cuts for taxpayers. Pass-it-on
02/06/01: Bridging the unbridgeable gap
01/23/01: Left-wing demagoguery
01/16/01: The drug war problem
01/10/01: Politics and trade
01/03/01: Hope for liberty?
12/27/00: The debris of war
12/19/00: What's the rule of law for?
12/15/00: Ending silicone breast implant saga
12/05/00: Election may yield victor, but there are no winners
11/21/00: A Bush presidential mandate?
11/07/00: Exprienced Gore? Yeah, right
11/01/00: Interventionist follies
10/17/00: America's brightening prospects in Ukraine
10/11/00: GOP budget scandals
10/03/00: How a pharmaceutical 'crisis' was created
09/27/00: Clinton's empathy has helped nobody
09/13/00: AlGore's risky budget policies
09/05/00: Military readiness and Korean commitments
08/29/00: Let sleeping hypocrites lie
08/21/00: Targeting a journalistic pariah
08/15/00: European garrison for Kosovo?
08/08/00: Journalistic cleansing at the Boston Globe
08/04/00: Junk science on trial
06/22/00: Eternal vigilance is the price of liberty
06/15/00: The end of U.N. peacekeeping
06/07/00: The Clinton regulatory miasma
06/01/00: Administration stupidity, congressional cowardice
05/25/00: The silence of the international community
05/18/00: Protecting the next generation

05/11/00: Freer trade with China will advance human rights

05/04/00: How not to save the Constitution

04/28/00: American tripwire in Korea long ago disappeared: Why are we still involved?

04/18/00: Clinton administration believes the IRS is too gentle, wants more auditors

© 2002, Copley News Service