George W. Bush refuses to pledge to appoint only pro-lifers to the Supreme
Court, and the political reasons for this refusal are both obvious and
sufficient to justify it. But Bush and his advisers have tried to present
his opposition to "litmus tests" as a matter of policy. They argue that if
Bush's nominees were to assure him that they oppose
Roe v.
Wade, they
would have to recuse themselves when the issue came before the Supreme
Court-defeating the whole purpose of the litmus test. William Safire
attributes this argument to Karl Rove in his Thursday
New York Times
column;
Ralph Reed has made the same argument in NR (July 12).
But there is no such rule of "judicial ethics," as Reed describes it, and
it's hard to see what principle could justify such a rule. Nominees do
have to show they have a judicial temperament-that they are willing to
hear arguments, that they will not be swayed by improper considerations,
that they will recuse themselves from cases in which they have a conflict
of interest. There is no rule, however, that bars the confirmation of
nominees who have declared themselves on a doctrine. Law professors who
have written in favor of Roe or against it can be confirmed. So can
nominees who answer senators' questions about their views on the
constitutional status of privacy rights, questions that get asked all the
time. And if senators can ask, and make decisions based on the answers and
non-answers they get, so can presidents. The Clinton administration has a
litmus test on abortion-its nominees have to support Roe — and nobody has
suggested that Ruth Bader Ginsburg and Stephen Breyer have to recuse
themselves in abortion cases (although it's fine with us if they do).
Presidents and senators have to able to ask nominees to the Supreme Court
whether they believe an issue falls in their jurisdiction, and have to be
able to act on the response. Otherwise, a constitutional check on the
courts would be removed.
What's wrong with President Clinton's pro-Roe litmus test is not that it
is a litmus test but that it is pro-Roe. A president who demanded that his
nominees adhere to the Constitution by opposing Roe would be doing
something different in principle from a president who demanded that his
nominees disregard the Constitution by supporting it. Let's hope the next
president understands that.
