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MANY DEMOCRATS SAW THE nomination of William Rehnquist as Chief Justice as the result of a litmus test. So Sen. Biden warned of “a new federal judiciary composed of a pack of ideologues obediently responding to the whip of the Radical Right.” The late Sen. Paul Simon (D-IL) opined: “to use a nominee’s views on any other single issue as a ‘litmus test’ ordinarily would be unfair and inappropriate, and is an unreliable way to predict the nominee’s overall future performance.”
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.” New York Governor and forever prospective candidate Mario Cuomo (D) denounced using “the selection of a judge to attempt to assure a result in advance.” In sum, he added, “Whether any of the [judicial] candidates would seek to overrule Roe v. Wade … or any other specific precedent, are not appropriate questions for the president or the Senate.”
When the Robert Bork fight roiled Congress, Democratic attack was perfectly predictable. Judiciary Committee Biden charged that President Ronald Reagan had “politicized this matter by allowing his Justice Department to adopt litmus tests for nominees.” After Bork’s defeat, Sen. Patrick Leahy (D-VT) announced: “We have to make sure somebody is not appointed based on litmus test commitments of how they will vote in cases coming up.”
Democrats similarly claimed to be resisting litmus tests when they opposed Clarence Thomas in 1990. Argued Majority Leader George Mitchell (D-ME): “Since 1980, in honoring [the 1980 platform] commitment, Presidents Reagan and Bush have established as a litmus test for a potential nominee to the Supreme Court: that person’s position on abortion.” Sen. Chris Dodd (D-CO) observed that “I am not interested in a litmus test of single issues.”
Sen. Biden even criticized feminist groups for working to turn Roe into a judicial litmus test. So, too, did Sen. Dennis DeConcini (D-NM), who explained: “I, for one, do not hold that [abortion] as a litmus test for confirmation.” And short-lived 1992 presidential candidate Jerry Brown responded “you don’t need a litmus test” when queried about judicial appointments.
In mid-1992, in the midst of the presidential campaign, Sen. Biden criticized the Bush administration’s “campaign to make the Supreme Court the agent of an ultraconservative social agenda.” Republican presidents had, he alleged, “ceded power in the nominating process to the radical right.”
ONE OF THE FEW discordant notes in this chorus promoting judicial tolerance was sounded by Sen. Alan Cranston (D-CA), who voted against Clarence Thomas, explaining: “I don’t want my vote to contribute to an increasingly large and conservative anti-choice majority on the Supreme Court.” It was a harbinger of things to come, predicted in 1986 by Sen. Simon: “Some of those who criticize the rigidities of right-wing ideology would impose rigidities of the left.”
As did President Clinton. As would have President Gore. As would President John Kerry. And as are Senate Democrats today. The Democrats now unabashedly favor ideology over competence.
In contrast, four years ago George W. Bush explained: “I have no litmus test on that issue. I’ll put competent judges on the bench.” As he would, if only recalcitrant Democrats would allow the Senate to vote on their nominations.
Judicial candidates should demonstrate both fidelity to the Constitution and openness to argument. As Senator Kennedy, along with many of his present and past colleagues, has observed, it is dangerous to require judicial nominees to meet a political litmus test imposed by partisan ideologues. Would-be President John Kerry and the Senate Democratic caucus should heed his well-founded warning.
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