Jewish World Review April 14, 2003 / 12 Nisan, 5763
Kerry's abortion litmus test
Senator John Kerry assured a group of Democratic women at a
breakfast in Iowa last week that if he is elected president, he will
nominate for the Supreme Court only judges who support Roe v. Wade and
the broad guarantee of abortion rights that it stands for.
But isn't that a political litmus test? And aren't litmus tests for
judges frowned upon?
Kerry didn't wait to be challenged. "Let me just say to you: That
is not a litmus test," he told the breakfast group.
In fact, a litmus test -- an ideological hurdle that he would
require any Supreme Court nominee to clear -- is precisely what it is.
There are serious legal scholars, not all of them pro-life, who think
Roe was poorly reasoned and wrongly decided -- that it essentially
conjured the "constitutional" right to abortion out of thin air. Kerry
was making an explicit promise not to nominate such people to the
Supreme Court, no matter how sterling their credentials or how admirable
their character or how compatible their views might be with Kerry's on
other topics. That is a litmus test, however much Kerry might deny it.
But why deny it? Are judicial litmus tests really so bad? It seems
to me that it's reasonable -- even desirable -- for a president to
appoint judges who agree with him on important issues. Don't voters
expect as much? Instead of denying the obvious, Kerry could have made
it a mark of his commitment. "Sure it's a litmus test. That's because
I don't want there to be any doubt where I stand: I will protect Roe v.
Wade." If he had said that, I for one would have defended his
But frankness is rarely the Kerry way. And so he maintains that his
position on abortion has nothing to do with politics. Rather, he says,
it is simply a matter of defending "settled law" and fixed
constitutional principles from reckless judges who might disturb them.
"Litmus tests are politically motivated tests," Kerry told reporters
after his speech. "This is a constitutional right." His pro-choice
zealotry, in other words, isn't political -- it is mandated by the
That might make sense if Kerry were talking about an issue that
supersedes political considerations, like the protection of trial by
jury or the right of minorities to vote. He isn't. He's talking about
a guarantee whose "constitutional" standing goes back only to 1973 and
has been the subject of intense political controversy ever since. To
Kerry, that makes no difference. Once the Supreme Court has decided a
constitutional issue, he seems to believe, the subject is closed
"I think people who go to the Supreme Court ought to interpret the
Constitution as it is interpreted," he said, "and if they have another
point of view, then they're not supporting the Constitution, which is
what a judge does."
Read that again: If they have another point of view, then they're
not supporting the Constitution. A Supreme Court justice who disagrees
with an earlier court decision, Kerry is saying, violates his duty to
uphold the Constitution. Accordingly, Kerry promises that any judge
*he* nominates to the court will unswervingly follow Roe v. Wade -- and,
presumably, every other constitutional precedent.
Well, if that's his standard, he is certainly justified in making
support for Roe a litmus test. But by the same standard, a candidate
for president in an earlier era would have been no less justified in
making a litmus test of support for Plessy v. Ferguson (the Supreme
Court case that upheld Jim Crow segregation) or Korematsu v. United
States (which approved the World War II internment of
Japanese-Americans) or Lochner v. New York (which, with its progeny,
barred states from passing wage and hour laws). Take the Kerry standard
literally and no Supreme Court decision could be overruled, no matter
how pernicious it was later deemed to be.
Naturally, Kerry says that's not what he means. "John Kerry of
course understands the evolving nature of American law and of
constitutional interpretation," his spokeswoman told me. "Many, many
Supreme Court decisions have been decided 'wrongly' as judged by
But he cannot have it both ways. If the Supreme Court sometimes --
let alone "many, many" times -- makes bad judgments and must later
correct its blunders, he cannot insist that the holding in Roe is so
sacrosanct, so immutable, that a justice who disputes it is by
definition a traitor to the Constitution. Conversely, if members of the
Supreme Court must never deviate from "the Constitution as it is
interpreted," as Kerry said in Iowa, then they can never undo an odious
decision or adapt the Constitution's text to a changed social landscape.
Which is it?
Roe v. Wade is not going to be the last word on American abortion
law any more than Dred Scott v. Sanford was the last word on the rights
of blacks. John Kerry is free to embrace Roe and, if elected president,
to nominate only judges who pledge to defend it. But he should
acknowledge that in doing so, he is setting up a litmus test, one many
voters will not like. For the one thing Roe is not is "settled law,"
above and beyond politics. On the contrary, it remains to this day one
of the most unsettled -- and unsettling -- political issues around.
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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.
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