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Jewish World Review April 15, 2003 / 13 Nisan, 5763

Roger Simon

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Consumer Reports

Kerry one-ups Clinton? | On April 5, 1992, presidential candidate Bill Clinton made campaign history by saying, "I will appoint judges to the Supreme Court who believe in the constitutional right to privacy, including the right to choose."

It was (we thought) honest and refreshing: Clinton was doing away with the pretense that he did not have a "litmus test" for his nominees.

And, on June 30, Clinton expanded on this by saying, "I think a judge ought to be able to answer a question in a Senate hearing: 'Do you or do you not support the right to privacy, including the right to choose?'"

A week later on July 7, Bill Moyers interviewed Clinton on PBS and endeavored to make sure that not only Clinton but everybody else understood exactly what Clinton was saying.

"Will you see to it," Moyers asked, "if you're elected ... your first appointee (to the Supreme Court) will be a strong supporter of Roe vs. Wade?"

"Yes," Clinton replied.

"Is that not a litmus test?" Moyers asked.

"It is, and it makes me uncomfortable," Clinton replied, "(but) I would want the first judge I appointed to believe in the right to privacy and the right to choose."

There. He had said it plainly (we thought). He had a litmus test, and he was going to use it.

Then something happened: Clinton got elected.

And at his first formal press conference in March 1993, he was asked by a reporter: "Mr. President, during the campaign you gave some pretty strong indications that (in choosing) your Supreme Court nominee, you would certainly consider their position on abortion. Is that still the case?"

"Thank you for asking," Clinton said, "because I want to emphasize what I said before: I will not ask any potential Supreme Court nominee how he or she would vote in any particular case. I will not do that. "

But is that really what he had said before? Go back and read his words, and decide for yourself.

We would eventually come to know this as Clinton-speak, an alternative view not just of the English language, but of reality. But back then it was still new and confusing. (It would later grow old and confusing.)

And Clinton continued: "But I will endeavor to appoint someone who has certain deep convictions about the Constitution. And I strongly believe in the constitutional right to privacy. I believe it is one of those rights embedded in our Constitution, which should be protected."

Reporters were still perplexed, but believed (ho-ho-ho) that Clinton could be pinned down.

"Given what you just said about the right to privacy," a reporter asked, "do you think it's appropriate, and will you or members of your administration be asking potential nominees if they support the right to privacy and whether they think that right includes the right to abortion?"

This was, however, no longer a question Bill Clinton wanted to answer.

"I will not ask anybody how they will vote in a specific case," Clinton replied again. "I will endeavor to appoint someone who has an attachment to, a belief in a strong and broad constitutional right to privacy."

I have never understood why presidents and presidential candidates dance around this issue. I have never understood why there is anything wrong with a litmus test.

"Voters should assume that I have no litmus test on that issue or any other issue," George Bush said on Oct. 3, 2000, during his presidential debate with Al Gore. "The voters will know I'll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy."

In other words, candidates like to speak in code. That is so they can imply one thing and mean another. Or, even if they mean what they say, they don't want to state it plainly and risk angering anybody.

Last week, however, presidential candidate John Kerry seemed to be speaking plainly: "Any president ought to appoint people to the Supreme Court who understand the Constitution and its interpretation by the Supreme Court. In my judgment, it is and has been settled law that women, Americans, have a defined right of privacy and that the government does not make the decision with respect to choice. Individuals do."

In other words, Kerry will appoint pro-choice justices. Kerry says this is not a litmus test, however. "Litmus tests are politically motivated tests; this is a constitutional right," he said.

That's about as plain as anyone has made it this time around. And, agree with him or not, at least you know how he intends to choose his justices if elected.

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