The Litmus Test Test
My old friend Daniel Nichols, with whom I worked on Caelum et Terra is one of those relatively rare people who is genuinely conservative on social issues but tends to lean left on other matters. Though he’s vehemently opposed to the Iraq war (not necessarily a leftward position, of course), he wrote me recently that he intended to hold his nose and vote for Bush for the same reason that many social conservatives continue to support Republicans: the Supreme Court. Although Republicans in general and President Bush in particular can’t be counted on to appoint judges who will resist the judicial imposition of the liberal social agenda, the Democrats can certainly be counted on to promote it vigorously.
A day or two after the third presidential debate I heard from him again. Disgusted by Bush’s refusal to take a definite or specific stand on judicial appointments other than “No litmus tests,” he was reconsidering the idea of voting for the president.
Now there are a lot of arguments to be made for and against Daniel’s position, and I am at the moment entirely sick of them. I have been spending far too much time lately reading and occasionally participating in the debate at Amy Wellborn’s blog, which gravitates frequently to the intramural Catholic quarrel over whether it’s permissible to vote for someone as committed to unrestricted abortion rights as John Kerry manifestly is.
What really strikes me about the matter is the role played by the media—or, perhaps I should say, since The Media is not quite the monolith it once was, the MSM, or MainStream Media. The triumphant cries of bloggers in the wake of Dan Rather’s recent debacle notwithstanding, the MSM still have a great deal of power to frame the terms of political debate, and the question of judicial appointments is one where a conservative who takes any kind of definite stand simply cannot escape being horsewhipped for “imposing a litmus test,” illicitly injecting ideology (or theology) into the law, etc. ad nauseam. “Litmus test” is itself only a scare phrase which means nothing unless attached to a specific test—would anyone scream “litmus test” if a candidate said he would not appoint a justice who supported striking down the first amendment as unconstitutional? But a liberal can openly assert a very strict ideological test and the MSM will not complain in the least.
If Bush were to say that he intended to appoint only justices who would vote to overturn Roe v. Wade, he would be all but crucified by the Democrats and most of the press. Bush of course knows that, and so, even if he does believe the decision should be reversed, he doesn’t dare say so in such a close race. I can imagine Dan Rather’s introduction to the story: “A troubling admission today from the Bush campaign...”, and then would come the quotes from unnamed “observers” talking about “red meat for the president’s right-wing base” and asking whether the election of such a fanatic might not mean that the light of justice would wink out forever like the light from a dying star.
John Kerry, on the other hand, can stand tall for his ideology, secure in the knowledge that none of the big media, with the possible exception of Fox News, will make trouble for him, and will in fact congratulate him for his integrity. Here’s how Bush answered the question as to whether he would like to see Roe v. Wade overturned:
What he’s asking me is, will I have a litmus test for my judges? And the answer is, no, I will not have a litmus test. I will pick judges who will interpret the Constitution, but I’ll have no litmus test.
And here’s the followup from Kerry:
I’m not going to appoint a judge to the Court who’s going to undo a constitutional right, whether it’s the First Amendment, or the Fifth Amendment, or some other right that's given under our courts today—under the Constitution. And I believe that the right of choice is a constitutional right.
So I don’t intend to see it undone.
Question 1: Which of these men has a “litmus test” for judicial appointees, that is, a pre-determined position, to which any potential appointees must assent, on a specific legal matter?
Question 2: Which of them will be credited by the Democrats and most of the media with having such a test?
Question 3: Why do many conservatives long to dance on the grave of Dan Rather’s career?
And a bonus essay question for advanced constitutional scholars: Comment on Mr. Kerry’s conflation of the authority and standing of Roe v. Wade with that of the First and Fifth Amendments to the Constitution. Express your feelings about the fact that John Kerry may soon be in a position to nominate Supreme Court justices. Does this thought make you happy or sad?