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Jewish World Review August 16, 1999 /4 Elul, 5759

Nat Hentoff

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To Get a Supreme Court Seat -- IN ITS JULY 23 ISSUE, the weekly conservative journal Human Events asked Republican presidential candidates:

"Will you rule out nominating to the Supreme Court people who believe that Roe v. Wade was correctly decided?"

Among those not heard from was George W. Bush, but he already has said he would not require an ideological litmus test for the high court. Also not answering that question were Lamar Alexander, Elizabeth Dole and John McCain.

Orrin Hatch's response was that although he is pro-life, he also agrees with Abraham Lincoln that:

"We cannot ask a man what he will do [on the court], and if we should, and he should answer us, we should despise him for it."

The other candidates straightforwardly -- indeed, ardently -- declared that their Supreme Court nominees would have to be unequivocally pro-life. Gary Bauer challenged "all my GOP rivals" to join him in pledging "to nominate to the court or the federal bench judges who are unambiguously pro-life."

Lest there be the slightest doubt of Bauer's convictions, he added: "I will not sacrifice one unborn baby for political gain."

Pat Buchanan declared: "Any president who strongly believes in life must appoint pro-life justices, or his commitment to life is hollow."

Steve Forbes invoked a higher authority to explain his undeviating position: "The right to life is not a state-endowed right. It is the gift of God." Said Bob Smith: "I will never nominate a person for any level of the judiciary who believes that Roe passes constitutional muster."

Alan Keyes and Dan Quayle answered yes to the litmus-test question, without any further elaboration.

Clearly the candidates who gave the password to those with visions of joining this honorable court are highly principled. They see no problems of due process -- of fairness -- for pro-choice litigants before the court. Attorneys representing such clients will at least know which votes no powers of fact and argument can move.

Is this test of admission to the high court any different from a president's -- agreeing with William Brennan and Thurgood Marshall -- extracting from a nominee to the court a pledge that he or she will, without exception, always vote for a stay of execution? And will always vote that all death penalty convictions be reversed because they violate the "cruel and unusual punishment" prohibition in the Eighth Amendment.

As a pro-lifer and an absolutist opponent of capital punishment, I wonder how those Republican candidates -- who bravely refused to sidestep the Human Events inquiry -- fail to see where their subversion of elementary judicial independence will lead.

A future president may believe that a woman's right to choose is so unequivocally constitutional that nominating a pro-lifer betrays a president's own oath of office.

Abraham Lincoln could have also excoriated any president who tampers with judicial independence by accepting the Queen of Hearts' credo in "Alice's Adventures in Wonderland": "Sentence first, verdict afterwards."

Not only Republican presidential aspirants, however, have insisted on fixing a vote on the court. In 1992 Bill Moyers was interviewing, on television, presidential candidate Bill Clinton. The Arkansas governor was very concerned about a recent statement by Justice Harry Blackmun: "We're just one judge away from repealing Roe."

"I believe," Clinton told Moyers, "that most of us would like to see abortion not criminalized again."

Moyers then asked: "Will you see to it if you're elected that the fifth judge [on an abortion case], your first appointee, will be a strong supporter of Roe?"

Clinton's answer: "Yes."

Moyers: "Is that not a litmus test?"

Clinton: "Yes, it is. It makes me uncomfortable. But I would want the first judge I appointed to believe in the right to privacy and the right to choose."

Sure enough, Roe has not been in danger from Justices Ruth Bader Ginsburg and Stephen Breyer.

Is Al Gore also going to state forthrightly that, like Clinton, he will insist that his nominees swear allegiance to Roe v. Wade? Maybe he and George W. Bush can engage in a debate on judicial independence and on whether President Clinton was right to require a quid pro quo for a seat on the high court.

JWR contributor Nat Hentoff is a First Ammendment authority and author of numerous books. Send your comments to him by clicking here.


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