Sen. Edward Kennedy (D-MA) is challenging the constitutionality
of President George W. Bush’s recess appointment of Alabama’s
William H. Pryor to the Court of Appeals. The “language and
purpose” of the Constitution, explains Kennedy, suggests that such
appointments are not to be made during brief breaks during a
congressional session.
It’s good to see that Sen. Kennedy cares about diligently
interpreting the Constitution. Alas, the fidelity of Sen. Kennedy
and other Democrats to the rule of law has not been much in
evidence lately. And certainly not when it comes to judicial
nominations. Democratic Senators have routinely demagogued nominees
like Pryor and Mississippi’s Charles Pickering, another Bush recess
appointment. When in the majority, the Democrats simply refused to
hold hearings. While in the minority, they have filibustered
nominees approved by the Judiciary Committee, denying them a floor
vote.
Perhaps most outrageous has been the establishment of
ideological litmus tests. Verboten are nominees who are
intelligent, possess political appeal, and believe judges should
not make policy. Doubly banned is anyone who has forthrightly
criticized unfettered abortion “rights.”
Presumptive Democratic presidential nominee John Kerry couldn’t
have been clearer than when he stated: “As President, I will only
appoint Supreme Court Justices who will uphold a woman’s right to
choose.” Further, as a senator, he promised, “I am prepared to
filibuster, if necessary, any Supreme Court nominee who would turn
back the clock on a woman’s right to choose.” (To have an abortion,
that is. Not to enjoy more of her money through tax cuts or decide
where her child attends school through vouchers/tax credits.) The
reason, he explained, is that “any person who thinks it’s his or
her job to push an extreme political agenda rather than to
interpret the law should not be a Supreme Court Justice.”
Another candidate who confused pushing an extreme left-wing
political agenda as constitutional “interpretation” was Wesley
Clark, who ran to the left in search of Democratic votes. Life
“begins with the mother’s decision,” he said, whatever that meant.
He said he wouldn’t appoint anyone who was pro-life: “You just work
through what the judge has done and if you find guys who follow
judicial and established precedent, you’re not going to find a
judge who is pro-life.” Said Clark spokesman Bill Buck, Clark
“would not appoint judges that would change settled constitutional
precedents.” Like Dred Scott, which held that blacks were not
American citizens? Or Plessy v. Ferguson, which
established separate but equal?
KERRY AND CLARK WERE only building on the efforts of Democratic
Senators. Senate Judiciary Committee member Diane Feinstein (D-CA)
made her position quite clear when she declared: “I don’t want to
see Roe v. Wade overturned. I’m in a position where I’m
going to be very careful that a judge that I vote for to go to a
circuit will not do that. And I think I have every right to do
so.”
Apparently Sen. Feinstein isn’t aware that appellate court
judges cannot overrule the Supreme Court. No matter. Although she
claimed that her position didn’t represent a “litmus test,” there’s
no better example of one. Not that Sen. Feinstein was the only
Democrat to advocate a litmus test while eschewing use of the
word.
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,” namely, that it is
unlawful to protect the unborn. Al Gore frankly announced that he
“would appoint people that have a philosophy that would uphold
Roe versus Wade.”
Eight years before candidate Bill Clinton danced to the same
tune, declaring: “I hate to have any litmus tests, but … I would
want to know that Roe v. Wade would be secure.” He later
reinforced that point, noting, “I’m pro-choice and I would expect
to make appointments accordingly.” To make sure no one was unclear
as to where he stood, he declared: “I wouldn’t appoint anyone to
the Supreme Court who didn’t believe that there was in this Bill of
Rights … a constitutional right to privacy” (including to have an
abortion).
LITMUS TESTS ARE COMMON in politics, but once were rarely applied
to judges. The Carter administration’s Local Judicial Nominating
Commissions usually questioned prospective nominees about their
positions on issues, including abortion, but the administration did
not seem to impose a formal litmus test.
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 an
endorsement of the pro-life position, but obviously no litmus test
was imposed in the cases of Justices Anthony Kennedy, Sandra Day
O’Connor, and David Souter, Republican appointees all who later
voted to uphold Roe v. Wade.
The fact that Republicans never actually used a litmus test
didn’t stop Democrats from attacking the GOP for allegedly doing
so. Thus, 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 Reagan’s nomination of Sandra
Day O’Connor, who was chosen for her sex, not her ideology, Sen.
Howard Metzenbaum (D-OH) 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. Kennedy agreed,
complaining: “it is even more offensive to suggest that a potential
justice must pass the litmus test of any single-issue group.”
With conservative groups later pushing for the appointment of
judges who would judge rather than legislate, Sen. Metzenbaum
joined Sen. Joseph Biden (D-DE) 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” what he saw as
political pressure for institution of a “right-wing litmus test for
judges.”
Sen. Patrick Moynihan (D-NY) went even further: “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.”
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.
