Special Report

Cheating the Scales

Democrats today all want litmus tests -- the very sort they and even Ted Kennedy used to gag at.

By 5.14.04

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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.

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About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).